Cri. Appeal No. 721 of 1997

6th October, 1999

Petitioner Counsel: Mrs. S. A. DHAMALE
Respondent Counsel: Mr. I. S. THAKUR
Other Counsel: APP

JUDGMENT

JUDGMENT :- The appellant convicted under Section 20(a)(i) of the NDPS Act and sentenced to RI for one year and to pay a fine of Rs. 2000/- in default RI for four months by the Judgment and Order dated 15-11-1997 delivered by the Addl. Sessions Judge, Nasik in Sessions Case No. 203 of 1996 has impugned the order of his conviction and sentence in this appeal.

2. The appellant was prosecuted under the provisions of the NDPS Act on the charge of cultivating 110 ganja plants without any licence or permit. The seizure had taken place on 25th August 1996 on the basis of prior information received by PSI More - PW 6. The information was received that the appellant residing at Warachapada at Bhaygaon had planted cannabis plants in Wadaga. Therefore, PSI called two panchas and informed about the same to the Tahsildar who deputed Naib Tahsildar to accompany the raiding party. The superior officer was intimated about the information on telephone about which entry was made in the station diary at about 11.30 a.m. The photographer was also called. Thereafter the raiding party, headed by PSI More, which included constables, Naib Tahsildar, photographer along with necessary equipments like needle, thread, police station seal, lakh, bags, match box, measurement tape started in a police Jeep and a private vehicle for the raid. The vehicles were stopped near the office of the grampanchayat from where Police Patil and Gramsevak also were included in the raiding party. All of them went to the house of the accused which was shown by the Police Patil. Accused was called out from his house and was informed about the purpose of the visit. he was asked whether he wanted the search of the house and his personal search to be taken in the presence of the gazetted officer, which having been declined, the house was searched but nothing incriminating was found in the house or in the personal search of the accused. Thereafter the raiding party inspected the Wadaga which is quite near to the house of the accused where the plants of chilly, potatoes, Lady's fingers and ganja were noticed. Photographs were taken and sketch was prepared by gramsevak about the house and the land having those plants. PSI also prepared hand sketch. About 110 ganja plants were noticed which were uprooted. Five ganja plants were packed in plastic bags and were wrapped in cloth bag which was stitched and labelled under the signature of the panchas. That bag was also sealed with the lakh seal. Rest of the ganja plants were wrapped in a plastic bag and sealed with lakh seal. Panchanama of the seizure was drawn which is at Exhibit 20. All the samples as well as the muddemal articles were brought to the police station. Crime was registered under C. R. No. 2 of 1996 under Section 20 of the NDPS Act. Statements of the witnesses were recorded. The sample was sent to the office of the CA. The CA report was received on 14-9-1996 which is at Exhibit 29. The charge-sheet was filed on 28-10-1996 in the Court of the JMFC, First Court, Nasik who committed the case to the Sessions Court.

3. Before the Sessions Courts charge was framed under Section 20(i) of the NDPS Act for cultivating 110 cannabis plants without licence or permit against the accused. Accused pleaded not guilty. His defence was of total denial. According to him the land in question was gaothan land which was not in his possession. He denied that he had planted the cannabis plants on the said land.

4. On behalf of the prosecution six witnesses were examined. PW 1 is Tuplondhe who was panch for seizure panchanama but he did not support the prosecution case. PW 2 is photographer who had accompanied the raiding party and deposed about the photographs taken by him. His evidence is not of much use to the prosecution. PW 3 is panch Ahire who has proved the seizure panchanama (Exh. 20) and supported the prosecution case. PW 4 is Sampat Bhondawe who was the Police Patil of the village and PW 5 Pramod Khairnar was the gramsevak of the village. PW 6 is PSI More who led the raiding party, filed FIR (Exh. 27) and also investigated the case and filed the charge sheet.

5. Considering the entire evidence on record the learned Addl. Sessions Judge who tried the appellant recorded his order of conviction against him under Section 20(a)(i) of the NDPS Act and sentenced him as above which is under challenge in this appeal.

6. Mrs. Dhamale, learned Advocate appearing on behalf of the appellant raised number of points challenging the order of conviction and sentence recorded against the appellant. After going through the evidence, the reasoning of the trial court and considering the arguments of the learned defence Advocate, in my opinion, this appeal can be allowed on the ground that the prosecution has established neither the ownership of the appellant of the land from which ganja plants were uprooted and seized nor his possession of the land in question nor even the cultivation of the ganja plants by him for which the charge was framed against the appellant.

7. After reading the evidence of the prosecution witnesses the prosecution appears to have established only that the appellant was residing in a house owned by him which is about 10 to 15 ft. away from the land from which the ganja plants were uprooted and seized. Neither the pancha nor PSI More was aware of the ownership or possession of the land in question. Admittedly the land from which the ganja plants were seized was a gaothan land owned by the government. PW 4, the Police Patil who had accompanied the raiding party in order to show the house of the accused has stated in his examination-in-chief that ganja plants were in nobody's ownership. According to him the plants were found in gaothan and the Wadaga from where the plants were seized is about 10 to 15 ft. away from the house of the accused. In cross-examination he says that the wadaga is about 400 to 500 ft. away from the house of the accused. He has stated, categorically in his cross-examination that the land in question did not belong to the appellant-accused. He further deposed that he did not know personally who was in possession of the land nor he was aware as to who was cultivating the said land. He has also stated that he did not know who had planted chillies and lady's fingers in the said land. He has also admitted that on the eastern side of the land there is house of one Murlidhar and on the western side there is house of one Jagannath Murlidhar at a distance of about 10 ft. Another important witness examined by the prosecution is PW 5, the gramsevak Khairnar. He only deposes that the land was near the house of the accused but could not say to whom the land belonged. According to him there are other houses also near the land which are shown in the map (Exh. 23). This sketch (Exh. 23) was prepared by him. He also states that the Wadgas were situated in gaothan area admeasuring about 2 acres and there are about 200 people residing in the said area who were making use of gaothan area for the purpose of cultivation of vegetables. He admits in cross-examination that about 5 to 6 persons are having their residential houses near the house of the accused. He also pleaded ignorance about the possession of the land in question or as to who had planted the ganja plants in the land in question. There is not a single prosecution witness who has established either the ownership or the possession of the appellant in respect of the land in question or the cultivation of the ganja plants by him on the said land. The trial Court in its judgment has relied on the evidence of Police Patil and Gramsevak for holding that the appellant accused had planted those ganja plants. The evidence of these two witnesses has been examined and discussed above which does not establish either the possession or plantation by the accused. The reliance by the trial Court on the contiguity or the nearness of the land in question to the house of the accused for coming to the conclusion that the ganja plants must have been cultivated by the accused is, in my opinion, an erroneous view, especially when there are other villagers who are residing in the vicinity of the said land. In my view, the prosecution has failed to establish that either the land in question was in possession of the appellant or was cultivated by him planting ganja plants on the land, which is admittedly gaothan land and was not in the ownership of the appellant.

8. In the result the appeal is allowed. The order of conviction and sentence recorded by the Addl. Sessions Judge, Nasik in Sessions Case No. 203 of 1996 under Section 20(a)(i) of the NDPS Act is quashed and set aside and the appellant is acquitted. The bail bond of the appellant shall stand cancelled. Fine, if paid by the appellant, shall be refunded to him.

Appeal allowed