Motiram Malviya vs State of Madhya Pradesh

Hon''ble Shri Justice, Anil Kumar Sharma

This appeal has been filed by the appellant against judgment dated 06.02.1998 passed in Special Case No.15/1997 by the learned Special Judge (NDPS Act), Indore (MP), whereby appellant has been convicted for the offence punishable u/s 8 read with Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act, in short) and sentenced to undergo rigorous imprisonment for four years and fine of Rs.10,000/-has been imposed upon him, with default stipulation. Brief facts of the case are that on 07.04.1997 on information that appellant has grown ganja plants on his agricultural land, Station House Officer, Khargone (MP) searched the field of appellant and seized 43 plants of ganja weighing about 17 kilograms 700 grams. After filing of the challan against accused/appellant, learned trial Court, after trial of appellant for the offence punishable u/s 8 read with Section 20 of the NDPS Act, convicted appellant for the same charges and sentenced him, as mentioned in paragraph No.1 of this judgment.

Being aggrieved by the impugned judgment, appellant has filed this appeal on the ground that he has been falsely implicated in the case. Learned trial Court has failed to consider the fact that appellant is not cultivating the land, which is in his name, but it is on record that three sons of appellant are cultivating different parts of his land. Seized articles were not produced before the Court.

Main question for consideration in this appeal is whether learned trial Court is justified in convicting the appellant by the impugned judgment.

Learned counsel for the appellant drawing attention towards the evidence has submitted that evidence of seizure of ganja plants of appellant has not been corroborated by the independent panch witnesses Lachchiram (PW-2), Girdharilal (PW-3) and Gajanand (PW-4). Even Patwari Rewaram Chouhan (PW-6) has admitted that there are three partitions of the land on the spot, on which sons of the appellant Motiram are in possession and appellant does not do agricultural work on the land, although statement of this witness has not been supported by Khasra entries, but his statement shows that appellant is not in exclusive possession of the land and as his three sons are cultivating land; that too, on their different independent portions, Patwari has no right to enter the possession of persons other than the Bhumi-Swami in the Khasra, without permission of Tahsildar.

Learned counsel for the appellant has further submitted that seized article has not been produced before the witnesses in the Court at the time of evidence. He has cited judgment of Hon''ble Apex Court in the matter of Jitendra and another v. State of MP reported in 2004 SCC (Criminal) 2028 in which it has been held in paragraph 6, as under:

In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.

Learned counsel for appellant has further drawn attention towards admissions of the Patwari that land is not in possession of the appellant and has cited judgment of Hon''ble Apex Court in the matter of Kunju Muhammed Alias Khumani & another v. State of Kerala reported in 2004 SCC (Criminal) 1425, in which it has been held that prosecution witness not treated hostile, but his evidence helping the defence, benefit of such evidence should go to the accused and not to the prosecution.

Considering the fact that there is no evidence regarding exclusive possession of the appellant on the land from which plants have been seized, and further the seized articles have not been produced before the witnesses at the time of evidence in the Court, appellant cannot be held guilty for offence punishable u/s 8 read with Section 20 of the NDPS Act. Therefore, learned trial Court is not justified in convicting the appellant by the impugned judgment. Therefore, appeal is allowed, setting aside the impugned judgment. Appellant is acquitted of the charge for the offence punishable u/s 8/20 of the NDPS Act. Fine amount, if deposited by the appellant, be refunded to him. Bail bonds of the appellant are discharged.