Dismissed

State of Chhattisgarh v. Ghurwa and Anr.

Chhattisgarh HC14 Jan 2021ACQA/119/2009

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed an acquittal appeal under the NDPS Act. It held that the prosecution failed to prove exclusive possession or cultivation by the respondents. Relying on Alakh Ram v. State of U.P., the court ruled that absent proof of cultivation, they may have sprouted naturally, and the acquittal stands.

What did the court decide?

The acquittal appeal filed by the State of Chhattisgarh was dismissed with costs.

State of Chhattisgarh Vs Ghurwa and Anr. — Narcotics (NDPS) | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 119 of 2009

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State of Chhattisgarh, through the District
Magistrate, Kabirdham, Chhattisgarh.

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 ---Appellant

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 Versus

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1. Ghurwa S/o Jugut, Caste Patel, Aged 56 years, R/o Village Lata, Thana Bodla, District Kabirdham, Chhattisgarh.

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2. Januram S/o Jugut, Caste Patel, Aged 40 years, R/o Village Lata, Thana Bodla, District Kabirdham, Chhattisgarh.

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--- Respondents

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For Appellant/State :- Mr. Ravi Bhagat, Dy. G.A.
For Respondents :- Mr. Sourabh Sahu, Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order on Board

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14/01/2021

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1. This acquittal appeal is directed against the judgment of acquittal dated 13/06/2006 recorded by learned Special Judge (NDPS Act) in Special Case No. 06/2006 acquitting the respondents herein from charges punishable under Section 20(a) of the Narcotic Drugs and Psychotropic

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Substances Act, 1985 (hereinafter, 'the NDPS
Act').

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2.The respondents herein were acquitted on the
following facts :-

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2.1. That, on 20/10/2005, A.K. Banjare (PW-10)
who is the SI of the Excise Department received
an information regarding illegal cultivation of
cannabis plants in the field of the respondents
and reduced the same in writing in the
prescribed form of the Excise Department and in
compliance of Section 42(2) of the NDPS Act
forwarded the same to his superior vide Memo
(Ex. P/10) and proceeded for the spot.

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2.2. Having reached over the spot, the
Investigating Officer (PW-10) called the
respondents and served them with notice (Ex.
P/8) and informed them about their right before
search. The Investigating Officer gave his
personal search along with his staff to the
respondents vide Ex. P/9 and thereafter,
entered into the field wherein he seized 24

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plants of cannabis and seizure memo was

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prepared (Ex. P/1). The measurement of plants
was done vide Ex. P/3 and those were sealed and

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a memo of specimen seal was prepared as Ex.
P/6. Spot map vide Ex. P/7 had been prepared
and respondents were taken into custody and
information to that effect was given to the
relatives of the respondents vide Ex. P/19. An
information regarding the seizure and arrest
was given to the District Excise Officer vide
Ex. P/21.

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2.3. The revenue records of the questioned
field had been collected under Ex. P/11 to Ex.
P/14. The seized cannabis plants were sent to

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the Forensic Science Laboratory for chemical
examination vide Ex. P/17 and having found the
positive chemical examination report vide Ex.
P/23, the respondents had been put to trial and
they had been charged for the commission of
offence punishable under Section 20(a) of the
NDPS Act.

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2.4. The respondents abjured their guilt and
entered into defence. Learned Special Judge,
after appreciating the oral and documentary
evidence on record, did not accept the version

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of the prosecution and acquitted the
respondents holding that the prosecution has
failed to prove that respondents have committed

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the offence under Section 20(a) of the NDPS Act
beyond doubt. Now, questioning the judgment of
acquittal recorded by learned Special Judge,
this acquittal appeal has been preferred by the
State.

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3.Mr. Ravi Bhagat, learned Deputy Government
Advocate for the appellant/State, would submit
that learned Special Judge is absolutely
unjustified in acquitting the respondents as
the contraband/cannabis plants were seized from
the field of the respondents and after
complying all formalities, it was sent to the
Forensic Science Laboratory wherein it was
found with narcotic drugs, as such, on the
basis of the statement of the Investigating
Officer (PW-10), the conclusion ought to have
been recorded by learned Special Judge and
further he has failed to appreciate the
provisions of Section 35 and 54 of the NDPS Act
which is available against the respondents.
Therefore, the impugned judgment acquitting the
respondents recorded by learned Special Judge
deserves to be set aside.

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4.Mr. Sourabh Sharma, learned counsel for the
respondents, would submit that it was incumbent

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upon the prosecution to prove that those
cannabis plants were planted by the respondents
herein and they had not sprouted naturally in
light of the decision rendered by the Supreme
Court in Alakh Ram v. State of U.P.1.

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5. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

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6.Admittedly, in the instant case, the
respondents were prosecuted for offence
punishable under Section 20(a) of the NDPS Act
as 24 plants of cannabis weighing 43.200 kgs
were seized. In order to constitute offence
punishable under Section 20(a) of the NDPS Act,
it must be proved by the prosecution that the
accused persons have actually cultivated the
prohibited plants and it must further be proved
that the land on which the cannabis plants were
cultivated was exclusively held by the accused
persons and they had exclusive right over it.

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7. In the matter of Alakhram (supra), similar question came up for consideration before the

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1 (2004) 1 SCC 766

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Supreme Court wherein in paragraphs 5 and 6 it
has been as under :-

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“5. In the instant case, one witness was
examined to prove the nature of the offence
committed by the accused. It was PW 1 who
accompanied the police officers to the
appellants' filed. The evidence given by PW
1 is to the following effect :

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“Alakh Ram is a farmer. I do not know the number of those fields. I do not know the number of that field in which ganja was sown. I do not know as to who had cultivated the plants of ganja. That field is irrigated and Madho also works in that field. Neither have I seen anyone planting the ganja plants nor do I know when was it planted.”

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6. The above evidence is to be appreciated in the background of other evidence on record. Appellant Alakh Ram, his father and brothers owned 70 bighas of land. The prosecution has not produced any document to show that the property from which the ganja plants were uprooted belonged to appellant Alakh Ram exclusively. The witnesses who were examined in support of the prosecution also have not given any evidence to show that this property belongs to appellant Alakh Ram. There is no satisfactory evidence, either oral or documentary, to show that the appellant has a right over the property from which the ganja plants were recovered. There is no evidence that the appellant cultivated these ganja plants. Having regard to the extent of the property and the number of plants recovered from that property, it cannot be said that these plants had been the result of cultivation. They may have sprouted there by natural process and the appellant or anybody who is the owner of the property must not have been diligent in destroying the plants. There is no evidence to prove that there was cultivation of ganja plants by the appellant and the

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Additional Sessions Judge wrongly convicted
him as the evidence adduced by the
prosecution was not carefully scrutinized
by the Court. The High Court committed
error in confirming the conviction and
sentence of the appellant.”

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8.Reverting to the facts of the present case in
light of the proposition of law laid down by

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the Supreme Court in Alakhram(supra), it is
quite vivid that though the respondents were

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charged for offence punishable under Section
20(a) of the NDPS Act and it is the case of the
prosecution that 24 plants of cannabis weighing
43.200 kgs were seized from the possession of
the respondents, but the prosecution has failed
to plead and establish that the field where the

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cannabis plants were planted were in the
exclusive possession of the respondents and
they had exclusive right over the property from
which the plants were recovered. There is no

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evidence on record at all to show that the
respondents cultivated the cannabis plants and
the ownership of the land from which the plants

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were seized is also in serious dispute which
the Special Court has also recorded. The
prosecution must have established that the
plants have been planted/cultivated by the
respondents which they have miserably failed.

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They must also have ruled out that the said
cannabis plants did not sprout out by natural
process. As such, learned Special Judge has
rightly acquitted the respondents for offence
punishable under Section 20(a) of the NDPS Act
in which I do not find any perversity or
illegality.

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9.Accordingly, the instant acquittal appeal is
dismissed finding no merit.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

State of Chhattisgarh v. Ghurwa and Anr.

Case brief

What is this about?

What did the court decide?

State of Chhattisgarh v. Ghurwa and Anr.

Case brief

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