Patna High Court (Sunil Dutta Mishra, J.; C.A.V.) allowed Criminal Appeal (SJ) No.474 of 2006 under Sections 374(2) Cr.P.C. and acquitted the appellant of the charge under Section 18 NDPS Act, setting aside the judgment dated 24.05.2006 and sentence dated 26.05.2006 (10 years RI + Rs.1,00,000/- fine, default 3 years RI) passed in Sessions Trial No.243 of 1990 by the Additional Sessions Judge, Fast Track Court No.5, Biharsarif, arising from recovery of 1800 opium plants on 25.03.1987 from khata no.222, plot no.375, Asha Nagar, Biharsarif. Held: (i) liability for illegal cultivation requires proof that the cultivation was by the accused or under his control - mere presence of plants on land is insufficient absent possession or dominion; (ii) under Section 35 NDPS read with explanation (2), facts must be proved beyond reasonable doubt, and the initial burden of proving conscious possession or ownership of the land lies on the prosecution; (iii) the court witnesses contradicted each other on the recorded owner (Register-II, Ext.9/Ext.9/A showing Munshi Mahto, father of the accused), so ownership and possession were not established beyond reasonable doubt; (iv) the seizure-list witnesses turned hostile stating their signatures were obtained on plain papers, no independent witness corroborated the seizure, the Executive Magistrate, Chemical Examiner and Malkhana in-charge were not examined, the seized samples were not produced or exhibited, and the sample reached the Chemical Examiner after a 3-4 day delay without custody evidence; (v) following State v. V. Jayapaul and Mukesh Singh, investigation by the informant/complainant himself is not per se fatal absent established bias. Benefit of doubt to the accused; appeal allowed; bail bonds discharged.
