Lalappa vs State of Karnataka

Rathnakala, J.—This appeal is filed assailing the judgement of conviction passed by the learned District and Sessions Judge, Dharwad in Special (NDPS) C.C. No. 14/2003 for the offence punishable under Section 20(a)(i) of N.D.P.S. Act, 1985, whereby appellant is sentenced to undergo rigorous imprisonment for a period of one year with fine of Rs. 5,000/- with default clause.

Ms. Nandini Somapur, learned counsel for the appellant submits that the land from which the ganja plants were grown is not either under the ownership or under the possession of this appellant. No independent witness were examined to establish the cultivation of the land in question by the appellant. The panch witnesses have turned hostile to the case of prosecution. The evidence of the owner of the land was not consistent. By giving undue weight to the evidence of the official witness, the appellant is convicted. There was material contradiction in the evidence of official witness which was overlooked by the Court below. The appellant is a senior citizen and he could not have cultivated land alone, just because the land under his ownership is abutting to the land where Ganja plants were grown, he has been convicted. The judgement passed by the Court below has resulted in miscarriage of justice and liable to be set aside.

In reply, the learned Government Advocate submits that the Police Inspector on receipt of the information about the growth of the Ganja plants in Survey No. 112/2/B in Shigigatti village proceeded to the spot with his staff and Panchs in accordance with procedure contemplated by Section 51 of N.D.P.S. Act, he recorded the information in his Station Diary. The accused was personally present in the said land. Being convinced that it is the appellant, who has cultivated the land in question, the ganja plants weighing 89 kgs. were seized in the presence of the panch witnesses and sample was collected separately for the purpose of chemical analysis. The accused was arrested from the spot. Though the panch witnesses and the owner of the land have turned hostile during the trial the court below has rightly appreciated the evidence of official witnesses to come to the conclusion that the accused had cultivated the ganja plants, though he is not the owner of the land, and thereby the court below has rightly convicted the accused for the offence punishable under Section 20(a)(i) of the N.D.P.S. Act. Imposition of sentence as rigorous imprisonment for one year and fine of Rs. 5,000/- commensurates with the gravity of the offence proved and established, and none of the grounds urged by the appellant are tenable and the appeal is liable to be dismissed.

In the light of the rival submissions, following point arises for consideration:

"Whether the prosecution had proved beyond reasonable doubt that the appellant had cultivated ganja plants in the land in question?" 5. During the trial prosecution has examined 8 witnesses as P.Ws.1 to 8, marked documents as Exs.P-1 to P-16 and material objects as M.Os. 1 to 4. The accused, during his examination under Section 313 of Cr.P.C. statement has denied all the incriminating evidence appearing against him in the evidence of prosecution witnesses. He opted not to lead defence evidence.

Out of the witnesses examined for the prosecution, P.W.1 is the P.I., who has conducted raid and seized the ganja plants as M.O. Nos. 1and 2 in the presence of panch witnesses, arrested the accused and lodged complaint under Ex.P-9. He has stated that before searching the land, notice was served on the accused and his consent signature was obtained. P.W.2 is the Head Constable, who has accompanied the P.I. for raid. His evidence is in tune with the evidence of P.W.1. P.W.3 is the panch witness. Though he identified his signature on the mahazar Ex.P-8 he did not corroborate the contents of Ex.P-8. He was declared hostile and cross-examined by the prosecution, but was in vain. P.W.4 is another Police Constable, who has submitted the report of P.W.1 (Ex.P-2) seeking permission from the Superintendent of Police to conduct his proposed raid in respect of the credible information received by him and thereafter he has submitted the F.I.R. as per Ex.P-12 to the Court. P.W.5 is the photographer, who has taken the photos as per Exs.P-4 to 6 of the accused with the ganja plants on the land. During his cross-examination he was not able to state the boundaries of the field from where the ganja plants were seized. P.W.6 at the relevant point of time was working under P.W.3 as a cleaner of the jeep. He has followed P.W.3 and turned hostile to the case of prosecution. P.W.7 is the owner of the land measuring about one acre and odd and bearing Sy. No. 112/2B from where ganja plants were seized. He has identified the RTC extract of land as Ex.P-14. Though he admitted his acquaintance with the accused, expressed his ignorance as to who has cultivated the ganja plants in his land bearing Sy. No. 112/2B during the relevant period. He has categorically denied about leasing the said land to anyone for cultivation on that he was declared hostile. During the cross-examination by Public Prosecutor he admits the entire case of prosecution. Again when cross-examined by defence nods to the suggestions that accused has not cultivated his land, it was the father of the accused, who was cultivating the land, and he does not attend the agricultural operations of his land, because of his age factor.

P.W.8 is the then P.S.I. of respondent police station, who has identified the signature of then A.S.I. on the documents like the complaint Ex.P-9, F.I.R. Ex.P-12 and P.F. Form Ex.P-16. He has further stated that he has took over further investigation, recorded the statement of witnesses sent the seized ganja plants to F.S.L., after receipt of the F.S.L. report as per Ex.P-17 collected the R.T.C. and filed charge sheet to the Court. With the above evidence the court below has held that the accused has trespassed for the cultivation of ganja and has passed the judgment of conviction.

Admittedly, the accused was not the owner of the property. The R.T.C. as per Ex.P-14 pertaining to the land does not bear the name of accused either as cultivator or as its khatedar. There is no official document linking the accused to the land in question where the ganja is grown. The owner of the land having turned hostile there was nothing on record to abridge the accused to the alleged offence. No independent witness was examined to state that it was the accused alone who had cultivated the ganja plants in the said land. As per the prosecution case itself the land of accused is abutting to the land where ganja is grown. If that is so, it is not understandable why the accused will grow ganja plants in someone''s land. As per the averments of the mahazar Ex.P-8 the Police Constable had collected the information that the accused with the consent of the land owner had cultivated ganja plants, but said information being hearsay did not culminate to legal evidence. On the basis of the sketch and fragile evidence of the official witnesses and the wavering evidence of the land owner, the court below has proceeded to convict the accused. The offence punishable under Section 20(a)(i) of the N.D.P.S. Act is punishable with rigorous imprisonment upto 10 years with fine extending upto Rs. 1,00,000/-. Such being the rigor of the offence punishable under Section 20(a)(i) of the N.D.P.S. Act, the Court below could not have acted on such an insufficient evidence that renders the judgment perverse and thereby illegal, is liable to be set aside.

Accordingly, appeal is allowed. The impugned judgment passed by the court below is set aside. The appellant -accused is acquitted of the charges punishable under Section 20(a)(i) of N.D.P.S. Act. His bail bond stands cancelled. The fine amount, if any, deposited by the appellant - accused before the court below is ordered to be returned to him after proper identification.