Vishwanath Kujur Vs State of Chhattisgarh

14.2.2019 passed by learned Special Judge (N.D.P.S. Act), Ambikapur in Special Criminal (NDPS) Case No.26/2017, by which the sole appellant herein has been convicted for offence under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act’) and sentenced thereunder to suffer rigorous imprisonment for 12 years and to pay fine of Rs.1,20,000/- and in default of payment of fine amount to suffer additional rigorous imprisonment for 04 years.

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2. Case of the prosecution, in brief, is that on 2.10.2017 around 4:45 p.m. at Village Suplanga, Ganjherpara under Police Station Kamleshwarpur, the appellant was found illegally possessing 465 cannabis plants which he had kept in the badi situated behind his house. As per the prosecution case, on 2.10.2017, PW-8 S.L. Gadhewal, Sub Inspector, Police Station Kamleshwar, received a secret information from an informer that the appellant had illegally cultivated cannabis plants in the badi situated behind his house and has harvested the said cannabis plants. Acting upon the said tip off, after completing the mandatory formalities as required under the N.D.P.S. Act, the police party reached the spot and found the appellant

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(Cr. A. No. 523 of 2019)

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there. After following the procedures prescribed under the N.D.P.S. Act, the police party made a search and found the appellant to be in possession of total 465 cannabis plants weighing around 40 kilogram of commercial quantity which he had harvested and kept in the badi situated behind his house and after preparing recovery panchnama, identification panchnama, weighment panchnama, sample panchnama and completing other formalities, the appellant was arrested for having committed offence under the provisions of the N.D.P.S. Act.

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3. Learned Special Judge framed charge under Section 20(C) of N.D.P.S. Act against the appellant, which he denied and claimed to be tried. During trial, in order to bring home the offence, the prosecution examined as many as 10 witnesses as PW-1 to PW-10 and exhibited documents vide Exbts. P-1 to P-53C in support of its case. After closure of the prosecution evidence, statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication on the ground that the cannabis plants were seized from vanbhumi . In his defence, the

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appellant has examined two witnesses, Mahesh Yadav as DW-1 and Bhupesh Singh as DW-2.

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4. On completion of trial, learned Special Judge, upon appreciation of the oral and documentary evidence available on record, by the impugned judgment and order dated 14.2.2019, convicted the appellant for offence under Section 20(C) of N.D.P.S. Act and sentenced him thereunder as mentioned in the opening paragraph of this judgment, which led to the filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by learned Special Judge.

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5. Ms. Sareena Khan, learned counsel appearing for the appellant would submit that the prosecution has not been able to prove that it is the appellant who had cultivated the cannabis plants and the said cannabis plants were seized from the badi which was not owned by the appellant. She further submits that the exclusive ownership and possession of the appellant has not been proved over the said badi , as per the statement of PW-3 Sanjay Kumar Sahu, the Patwari, who has has prepared Nazri Naksha (Ex. P-25). As such, the appellant is entitled to be acquitted of the said offence and the appeal deserves to be allowed.

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6. Mr. Sharad Mishra, learned State Counsel, would however support the impugned judgment and submit that the appellant was found to be illegally possessing the commercial quantity of cannabis plants which he had cultivated in his badi and therefore the learned Special Judge has rightly held the appellant guilty of the offence punishable under Section 20(C) of N.D.P.S. Act. As such, the appeal is liable to be dismissed and the appellant is not at all entitled to be acquitted of the said offence.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also perused the record of the case with utmost care and circumspection.

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8. The only question to be raised and to be determined in this regard is, as to whether the appellant had cultivated the prohibited cannabis plants in the badi which was alleged to be in his possession.

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9. Learned Special Judge, prominently relying upon the statements of the Investigating Officer, PW-8 S.L. Gadhewal and the Patwari, PW-3 Sanjay Kumar Sahu, has convicted the appellant for offence under Section 20(C) of N.D.P.S. Act holding that the appellant had

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(Cr. A. No. 523 of 2019)

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cultivated prohibited cannabis plants in the badi situated behind his house prior to 2.10.2017 and had harvested and illegally kept 465 cannabis plants weighing 40 kilogram of commercial quantity which was recovered from his conscious possession.

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10. The question is, whether the prosecution has been able to prove the charge under Section 20(C) of N.D.P.S. Act merely on the ground that the appellant was in possession of the badi in question in which he had allegedly harvested the cannabis plants and from where the said cannabis plants were seized.

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11. In this regard, the Supreme Court in the matter of Alakh Ram v. State of U.P. 1 has clearly held that in

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order to prove the guilt, it must be proved that accused cultivated the prohibited plant and that it is not enough if that few plants were found in the property of accused, and observed as under:-

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“4. We heard the appellant's Counsel and the Counsel for the respondent. Under Section 8(b) of the NDPS Act, cultivation of opium poppy or any cannabis plant is prohibited and under Section 20 of the NDPS Act, such cultivation of cannabis plant is made punishable with imprisonment and fine. In order to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated

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1 (2004) 1 SCC 766

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the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happened to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation. ”

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12. The afore-mentioned decision of Alakh Ram (supra) has been followed with approval by this Court in the matters of Bhawan Sai v. State of Madhya Pradesh (now Chhattisgarh)2 , Dhal Singh v. State of Chhattisgarh3 and Shambhuram v. State of Chhattisgarh4 .

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13. In the present case, the only evidence brought on record and extensively relied upon by learned Special Judge is that the appellant was found in possession of cannabis plants which he had cultivated in the badi situated behind his house. However, a careful perusal of the statement of PW-8 S.L. Gadhewal, the Investigating Officer, would show that on 2.10.2017 he had received a secret information from an informer that the appellant had cultivated cannabis plants in the badi situated behind his house and has harvested the said plants and kept in the badi from where the seizure of the said plants was made. Ex. P-25 is the

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2 2009 (1) C.G.L.J. 381

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3 2012 (4) C.G.L.J. 46

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4 Criminal Appeal No.1252 of 2002, decided on 14.4.2028.

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Nazri Naksha of the place of incident prepared by the Patwari, PW-3 Sanjay Kumar Sahu. The said witness (PW-3) in his statement has stated that the badi from where the cannabis plants were seized, the said land has been given to the appellant as vanbhumi patta . However, in his cross-examination, he has clearly admitted that he has not produced any document/ record in respect of the ownership of the said badi . There is no evidence on record in the instant case to hold that the appellant had cultivated the prohibited the cannabis plants in the said badi from where the said plants were seized. Their Lordships of the Supreme Court in Alakh Ram (supra) has categorically held that there must be clear evidence on record that the accused has cultivated the prohibited plants.

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14. In that view of the matter, considering the fact that the prosecution has failed to bring on record any evidence to hold that the cannabis plants were cultivated by the appellant in the badi in question from where the said prohibited plants were seized as per the statement of the Investigating Officer, PW-8 S.L. Gadhewal and also considering the fact that no document/record in respect of the ownership and

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possession of the said badi has been produced as per the statement of Patwari, PW-3 Sanjay Kumar Sahu, in our considered opinion, the Special Judge is absolutely unjustified in convicting the appellant for offence under Section 20(C) of N.D.P.S. Act and therefore the appellant is entitled to be acquitted of the said offence on the basis of benefit of doubt.

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15. Resultantly, this criminal appeal is allowed and the impugned judgment and order dated 14.2.2019 is hereby set-aside. Consequently, the conviction and sentence of the appellant for offence under Section 20(C) of N.D.P.S. Act also stand set-aside and he is acquitted of the said offence. He is stated to be in jail since 3.10.2017. We direct him to be released forthwith from jail, if his detention is not required in connection with any other offence.

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16. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Special Court and the concerned Superintendent of Jail be also served with a copy of this judgment, for information and necessary action at the earliest.

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Sd/- Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge sharad

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Digitally signed SHARADKUMAR by SHARADKUMARYADAVDate: YADAV 2025.01.2310:51:33 +0530

Vishwanath Kujur v. State of Chhattisgarh

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Vishwanath Kujur v. State of Chhattisgarh

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