Govind Barve vs State of Madhya Pradesh

Gulam Minhajuddin, J.—This appeal has been filed by the appellant u/s 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 30-11-1995 passed by II Additional Sessions Judge, Raipur in Special Cr. Case No. 200/91, convicting the appellant u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act, 1985") and sentencing him to undergo RI for six months, pay a fine of Rs. 500/- and in default thereof, to undergo additional RI for three months. Case of the prosecution, in brief, is that on 12-4-1991 Assistant Sub-Inspector BP Mishra of Police Station--Azad Chowk, Raipur received secret information that in Shivnagar, the appellant had cultivated a ganja plant by the side of drain of his house. Thereupon, BP Mishra (PW 2) alongwith Head Constable No. 1041 Rajesh (PW 3), Head Constable No. 1652, Constable No. 962, Constable No. 595 and witnesses Vijay Hirwani as welt as Chhabiram (PW 4), proceeded to the spot, where they found that the appellant had cultivated a ganja plant by the side of drain of his house. On being asked, the appellant admitted that he has cultivated the said ganja plant and it belongs to him. Thereafter, the said ganja plant was uprooted in the presence of witnesses and seized in their presence from the possession of the appellant vide seizure memo Ex. P/2. The said ganja plant was about 4 feet in height and its weight was about 500 gms. After that, ASI BP Mishra (PW 2) recorded the statements of the witnesses and after arrest, the appellant was brought to the police station. However, nothing was recovered on personal search of the appellant. First Information Report (Ex. P/1) was registered by Police Station--Azad Chowk, Raipur. The seized ganja plant was sent for chemical examination to FSL, Sagar through Superintendent of Police, Raipur. After examination, report Ex. P/3 was received from the FSL, Sagar.

After completion of investigation, offence u/s 20 of the Act, 1985 was found to have been committed by the appellant and consequently, charge sheet for the said offence was filed against the appellant before the competent criminal Court.

Charge u/s 20 of the Act, 1985 was framed against the appellant, who abjured his guilt and pleaded for trial. During trial, the prosecution examined Ganpatlal (PW 1), ASI BP Mishra (PW 2), Head Constable No. 1041 Rajesh (PW 3) and Chhabiram (PW 4). On being examined u/s 313 of Cr.P.C., the appellant denied the circumstances appearing in evidence against him and stated that the said ganja plant had grown by the side of a public drain, which does not belong to him. The appellant has also stated that on being asked by the police, he had uprooted the said ganja plant and had handed over the same to the police. The appellant examined Deepak as DW-1 in his defence.

However, learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant, as mentioned above.

Heard learned counsel for the State, perused the record of the trial Court as well as the impugned judgment.

The facts to be proved by the prosecution, in the instant case, are the following:

(i) Whether the appellant had cultivated the ganja plant in question ?

(ii) Whether the said ganja plant was seized from the exclusive and conscious possession of the appellant ?

(iii) Whether the seized plant was sent to FSL and as per report Ex. P/3, it was found to be a ganja plant?

ASI BP Mishra (PW 2) has stated that on 12-4-1991 he received secret information at Police Station--Azad Chowk, Raipur that the appellant, who is a resident of Shivnagar, had cultivated a ganja plant by the side of drain of his house, on which he alongwith Head Constable 1041 Rajesh, Head Constable No. 1652, Constable No. 962, Constable No. 595 and witnesses Vijay Hirwani as well as Chhabiram (PW 4), proceeded to the spot. The statement of ASI BP Mishra (PW 2) has been corroborated by the statement of Head Constable 1041 Rajesh (PW 3). ASI BP Mishra (PW 2) and Head Constable Rajesh (PW 3) have stated that on reaching Shivnagar, they had found that a ganja plant was cultivated by the side of drain of the appellant''s house, on which they called the appellant and enquired about the ganja plant, upon which the appellant had admitted that the said ganja plant belongs to him. ASI BP Mishra (PW 2) and Head Constable Rajesh (PW 3) have further stated that thereafter, the said ganja plant was uprooted in the presence of witnesses and was seized vide seizure memo Ex. P/2. The factum of plant being seized vide seizure memo Ex. P/2 has been corroborated by the statement of witnesses Chhabiram (PW 4) also.

Now the question is whether the said plant can be said to have been seized from the exclusive and conscious possession of the appellant ? Although ASI BP Mishra (PW 2) has stated that the said ganja plant was cultivated by the side of drain of the appellant''s house and has also denied the suggestion that it was a public drain, but Head Constable Rajesh (PW 3) has stated in para-3 of his statement that they had not enquired whether the said drain was a public drain or private drain of the appellant. As such, on the basis of evidence adduced, it cannot be said with any amount of certainty that the said drain was private drain of the appellant''s house and the seized plant was cultivated by the appellant and the same was seized from his exclusive and conscious possession.

For the sake of arguments, even if it is assumed that the said plant was seized from the exclusive and conscious possession of the appellant, then also the prosecution has to further prove that the said plant was of ganja. As per prosecution version, the said ganja plant was seized in the presence of witnesses vide seizure memo Ex. P/2 and was sent for chemical examination through Superintendent of Police, Raipur to FSL, Sagar, from where the report Ex. P/3 was received to the effect that the said plant was of ganja. However, from perusal of the seizure memo Ex. P/2, it is clear that after seizing the said plant, it was not sealed. The said plant, as per seizure memo Ex. P/2, was seized on 12-4-1991 at 7.15 am and as per FSL report Ex. P/3, it was sent for chemical examination through Superintendent of Police, Raipur on 30-5-1991. Thus, it is clear that after seizing the said plant on 12-4-1991, the same was not sealed in the presence of witnesses and it was sent for chemical examination to FSL, Sagar, after about 1 month & 18 days i.e. on 30-5-1991. No evidence has been adduced on behalf of the prosecution to show that during this period of 1 month and 18 days, as to in whose custody the seized plant remained and there had been no tampering during this period because the prosecution has also to prove that the plant said to have been seized on 12-4-1991 vide seizure memo Ex. P/2, was the plant, which was actually sent for chemical examination to FSL, Sagar, on 30-5-1991. In this connection, the law has been laid down by the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Daulat Ram, . As such, on the basis of evidence adduced, it cannot be said that the prosecution has been successful in proving that the plant seized vide seizure memo Ex. P/2 was the same plant, which was actually sent for chemical examination to FSL, Sagar, on 30-5-1991.

In addition to this, as per the statement of ASI BP Mishra (PW 2), he had received the secret information that the appellant had cultivated a ganja plant by the side of drain of his house and on the basis of that information, he alongwith his staff members and witnesses had proceeded to the spot and seized the said ganja plant. However, ASI BP Mishra (PW 2) has nowhere stated that after receiving the said secret information, he had reduced the same to writing and had without delay sent a copy of the same to his immediate official superior, as mandated by the provision of sub-section (2) of Section 42 of the Act, 1985. The abovementioned provision has been held to be of mandatory nature by the Hon''ble Supreme Court in the case of State of Punjab Vs. Balbir Singh, , wherein the Hon''ble Supreme Court has held that non-compliance of the said mandatory provision vitiates the trial and the consequent conviction.

From perusal of the evidence available on record, it is clear that ASI BP Mishra (PW 2) after receiving the secret information and before proceeding to the spot, had neither reduced the secret information to writing, nor had sent a copy of the same to his immediate official superior and has thus, not complied with the mandatory provision of sub-section (2) of Section 42 of the Act, 1985.

In view of the abovementioned discussions, it cannot be said that the prosecution has been successful in proving the commission of offence u/s 20 of the Act, 1985 beyond the shadow of reasonable doubt against the appellant and in the facts and circumstances, the appellant had definitely become entitled to the benefit of doubt. As such, the trial Court while passing the impugned judgment convicting the appellant u/s 20 of the Act, 1985, has committed a grave illegality, on account of which the said conviction and sentence are liable to the set aside. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charge u/s 20 of the Act, 1985. The appellant is on bail, therefore, his bail bonds are cancelled and he is set at liberty. However, the fine amount, if deposited, shall be refunded to the appellant.