Sabir & Anr vs State Of Madhya Pradesh

(1). Since these two connected criminal appeals arise out of the same set of facts. I propose disposing them of by a common judgment.

(2). Vide judgment and order dated 01.01.1998 the Special Judge (N.D.P.S.Act) Mandsaur convicted the appellants Sabir and Asiqu, under Section

8/18 read with Section 29 of N.D.P.S. Act and sentenced them to undergo 10 years' R.I. and to pay a fine of Rs. 1,00,000/- with default stipulation.

(3). The prosecution story in short is that the accused Sabir and Hamid are son and father and they have given Patta by Narcotics Department for

cultivation of poppy opium in the land measuring 0.30 hectare. on 09.03.1996, at about 10 hours, on the basis of secret information received by

Assistant Commissioner, Narcotics, Neemuch regarding illicit poppy cultivation by Sabir S/o Hamid in Village Multanpura, District Mandsaur who is

poppy cultivators has illegally cultivated opium in addition to the area licensed to him. On the basis of the aforesaid information a Preventive Party

under the leadership of Rajesh Nagpal, Assistant Commissioner, Narcotics, reached village Multanpura and found that the accused Sabir who is

cultivator of the opium poppy for the crop year 1995-96 has illegally cultivated opium poppy in addition to the area licensed to him and cultivated area

as intimated to the department by the Ashique opium lumberdar of the Village. In measurement, it is found that father of Sabir has also cultivated

poppy illegally. During the inspection, search team come to know that after lancing, the opium collected by the accused persons from the illegally

cultivated poppy have been kept in their house and neither this excess area nor the opium collected out by this excess area have been entered into the

records of the Village Lumberdar. It was also found that after collecting opium from the illegally cultivated poppy, the crop has been attributed and

thrown in the Nala/Magra near their fields. Then Samples of 5 plants was seized. During the search, Narcotics Department also seized 11.400 kg

opium from the possession of the accused in presence of the Gazetted Officer. Since the object behind concealing opium out from cultivated/produced

was to make embezzlement and then to smuggle the same, therefore, the opium was seized under the provisions of Section 8/18 for contravention of

the provisions of Section 8/19 of the Act. It was also found that Lumberdar Ashiq was also involved in the offence and he has not collected the opium

from the appellant as it was cultivated by the accused. The statement of the accused persons under Section 67 of NDPS Act were recorded. The

daily accounts of the opium was collected. On completion of necessary formalities including arrest of the appellant, FIR (Ex.P/32) was registered.

(4). The sample of the opium was sent to the FSL for chemical analysis report. The report shows that each of the sample was found opium within the

meaning of NDPS Act. On completion of investigation, a charge sheet was submitted against the appellant in the court of learned Special Judge,

NDPS, Mandsaur.

(5). The learned Special Judge, after hearing arguments of both the parties, framed charge against the appellant under Section 8/18 of the Act. The

accused persons denied the charge and claimed trial. They pleaded their innocence and took plea that they have been falsely implicated in the present

crime. The opium seized from their possession was collected under the license however in their defence they have not examined any witnesses.

(6). The prosecution, in support of its case examined as many as 12 witnesses and after appreciating the evidence produced by the prosecution, the

learned Special Judge found the prosecution case as alleged proved and accordingly guilty of having committed offence under Section 8/18 of the

NDPS Act. Feeling aggrieved with the aforesaid, appellants have preferred this criminal appeal for their acquittal from the aforesaid charges.

(7). Learned counsel for the applicant has submitted that the evidence produced by the prosecution was most unnatural and improbable. There are

material discrepancies and contradictions in the statement of the witnesses. According to Patta the appellant Sabir and his father Hamid were given

four license for the area of 120 Array and all the family members of the appellant owe the crop of opium poppy on total 120 Array of land. This fact is

also substantiated with the documents of Ex. P-2, P-4 and P-8, therefore, it cannot be said that applicant cultivated opium poppy in addition to the area

for which the license was issued. Though it is alleged that during the inspection, the crop has been attributed and thrown/kept concealed in the

Nala/Magra near their field. However, according to the report of Patwari no Nala is situated near the land of Khasra No.374. The independent

witnesses of the seizure has not been examined by the prosecution. There is previous enmity between the appellants and Haji Nanha Hameed (PW-

5), therefore, he had given false statement against the appellants. The trial court has committed error holding that the present appellants have accepted

the recovery of 11.400 kg opium from their possession. Hence, he prayed that appeal may be allowed and appellants may be acquitted from the

aforesaid charges.

(8). On the other hand learned supported the reasoning given by the trial court in the impugned judgment and submitted that conviction and sentence

was perfectly in order and the officers of the CBN has no reason to implicate appellants falsely, therefore, he prays for rejection of the appeal.

(9). I have heard learned counsel for the parties and perused the record.

(10). The procedure for cultivation, extraction and weighment, examination and classification of any opium cultivated and so extracted is provided by

Chapter III of the N.D.P.S. Rules. According to Rule 5 of this chapter cultivation can be permitted by Central Government on the tracts notified by it

from time to time and in accordance with the conditions of a licence issued by the District Opium Officer under Rule 8. Rule 6 fixes fees for licence.

Rule 7 prescribes specific form for issuing such a licence. Such licence can be issued according to Rule 7 on Form No. 1. Rule 8 prescribes the

manner in which the licence is to be issued by the concerned authority, i.e. District Opium Officer or the Central Government itself. Rule 9 lays down

that licence is to specify the area of cultivation. Rule 10 provides designation of Lambardar. It is the duty, according to this Rule, of the District Opium

Officer to designate one of the cultivators of opium poppy as Lambardar in each village where opium poppy was allowed to be cultivated. His

functions are to be governed and specified by the Narcotics Commissioner. Rule 11 prescribes power for withholding or cancellation of licence. Rule

12 lays down the procedure for measurement of land under cultivation of any cultivator in accordance with conditions of licence. The land is to be

measured by a proper officer in the presence of the cultivator concerned and the Lambardar of the village. It is to be attested by the cultivator and

Lambardar. The entries are to be made in the records to be maintained by Lambardar in accordance with the specifications provided to him by the

Narcotics Commissioner in this behalf. The record has to bear their signature or thumb impression. The record is to bear testimony to the correctness

of the measurement. These measurements are subject to further checks by an officer specified by Narcotics Commissioner in this behalf. Rule 13

lays down procedure for the preliminary weighment. According to Sub-rule (1) of Rule 13 the cultivator shall, during the course of harvesting, produce

every day before the Lambardar each day's collection of opium from his crop for weighment. Sub-rule (2) lays down the duty of Lambardar for

making arrangements to weigh such opium and for making necessary entries in the records to be maintained by him as specified by the Narcotics

Commissioner. Sub-rule (3) lays down the regulation for certification by signature or thumb impression the entries to be made in the register so

maintained by the Lambardar about the preliminary weighment of day today extraction of opium so produced before him by the cultivator. Sub-rule (4)

speaks of check to be made by the proper officer of this preliminary weighment of opium collected by the cultivators with reference to the entries with

the Lambardar's record and he has to indicate his finding therein which shall be attested by him and the Lambardar under their signature with date on

which such checking is conducted. The dates are to be mentioned by the Lambardar also regarding his entries. Sub-rule (5) lays down the principle to

deal with variations in the two weighments. According to it if there is any variation found in the preliminary weighment recorded by Lambardar during

the check conducted by the proper officer then it has to be enquired into by the proper officer in order to ascertain the liability of the cultivator for

punishment under Section 19 of the Act. This deviation, thus, puts a rider on the prosecution of the cultivator under Section 19.

(11). In the present case, it is not disputed that the appellant/accused Sabir is licensed cultivator of the opium for the year 1995-96 and the appellant

Asique was designated Lamberdar of Village Multanpur, where 98 cultivators were allowed to be cultivated the opium poppy. On 09.03.1996 when

searching officer searched the field of the accused/appellant Sabir then they found that appellant Sabir was licensed for cultivating the opium poppy in

the area of 29 Array. He informed the Lamberdar that he is cultivating opium poppy only on 21 Array. During search it was found that appellant Sabir

was cultivating opium poppy exceed the license area. It was found that accused Sabir had planted poppy plants exceeding 10 array land for which he

was licensed to produced the opium poppy. The raiding party also found that the crop of opium poppy has been attributed from the exceed area and

kept conceal in the Nala near his field. On counting 6500 plants of aputed opium poppy found which was recovered by the searching officer and 5

plants were taken as sample. The sample and remaining plaints were duly sealed and were kept in the Malkhana. Then sample was sent to the opium

factory Neemuch for analysis. Accused Sabir was arrested. According to the report receipt from the aforesaid factory sample was found to be plants

of opium poppy.

(12). The searching officer recorded the statement of the Sabir under Section 67 of NDPS Act, in which he accepted that he cultivated the opium

poppy in the exceed area for which license was issued. He also deposed that this has been done with conspiracy of Lamberdar Asique, who is his

maternal nephew therefore, police also arrested Asique and recorded his statement under Section 67 of NDPS Act.

(13). The investigation agency has taken the police remand of the accused Sabir and during the interrogation, he further deposed that he has kept

excess opium in his house. On 12.03.1996 when the searching officer searched the house belonging to accused Sabir then he found excess quantity of

8 Kg opium in his house, which appears to be extra product of his opium. Although the accused has filed photocopy of measurement register of

Village Multanpur D/5 From perusal of the entries made in the aforesaid register, it appears that he has deposited 4800 grams opium as the product of

some previous day and this quantity is less than the quantity of opium was seized from the house of Sabir. This is not the case of embezzlement of the

opium which is punishable under Section 19 of the Act. This is the offence of illegal cultivation of the opium poppy because the aforesaid poppy is the

product of exceed area licensed to the appellant. From the statement of the witnesses, it has come that the Lamberdar appellant Asique aware about

the exceed area for planting the opium poppy by the accused Sabir and there was understanding between Sabir and Asique that he will give him 50%

of the product of opium which he illegally cultivated in his exceed land, therefore, the aforesaid offence has been done by Sabir with conspiracy of

Lamberdar Asique.

(14). Learned counsel for the appellant submitted that there are three independent witnesses of the seizure memo who joined by the investigation

officer but witnesses namely Ramjani and Mubarik have not been examined, where the second witness Kamruddin (PW-2) has not supported the

prosecution story as a result whereof a doubt was caused in the prosecution story. From the perusal of the records shows that summon was issued to

the witness Ramjani, thereafter bailable warrant was issued to the him. The service of bailable warrant was effected on him but he did not appear.

The summons was issued to the other independent witnesses Mubarik but it could not be executed despite several opportunities. Every time summons

issued to the Mubarik returned un-served with the report that non-bailable warrant is issued against him in another case, therefore, he is absconded.

Although Ramjani appeared before the trial court after the service of bailable warrant but he was given up by the prosecution because he was win

over by the accused.

(15). In the case of Roop Singh Vs. State of Punjab 1997 (2) EFR 595, It was held that the panch witnesses being human being or quite exposed and

vulnerable to human feeling by yielding, brow-beating, threats, inducements and given up by the public prosecutor as won over , is fully justified in the

present day situation prevailing in the Society and no adverse inference can be drawn against the prosecution on account of non-examination of Public

witness of if Independent witness of recovery of opium has not supported the prosecution story and turn hostile. In the present case independent

witness Nanna (PW-5) supported the prosecution story and his testimony remained uncontrovered in his cross-examination. Although he accepted in

his cross examination that there was a dispute between him and accused persons regarding the land and a civil suit is also pending regarding aforesaid

dispute but this fact cannot be drawn for discarded his testimony because the Government witnesses supported the prosecution story.

(16). From perusal of the concern memo Ex P/13 and other evidence on record, it is clear that section 42 of the Act was complied before search of

the house of the accused Sabir. The search has been made in presence of Gazetted Officer Mr. R.L. Sahu, though Mr. Sahu is working as District

Opium Officer, in the Department of Narcotics but it cannot be said that section 42 of the NDPS Act has not been complied with. The sample of the

opium was sent to the opium factory Neemuch. According to the report the sample was found to be plants of opium poppy. The opium was also sent

for chemical analysis. The aforesaid report given by the chemical examiner is admissible under Section 293 Sub Section 4-A of Cr.P.C. without

examining the expert.

(17) Learned counsel for the appellants submitted that testimony of the investigation officer and other government officials are not trustworthy

because of serious material discrepancies regarding search and seizure but mere fact that they are government officers is not enough to discard their

evidence because no reason was shown for their hostility. While appreciating the evidence of the official witnesses this court is conscious that

mandatory provision of Sections 42 and 57 of N.D.P.S.has been complied with.

(18) In view of above discussion, it is held that the judgment of conviction and the order of sentence passed by trial court are based on the correct

appreciation of evidence and law and same is liable to be upheld.

(19). For the reasons recorded herein above the appeal filed by the appellants is hereby dismissed. The appellants are in bail, they are directed to

surrender to undergo the remaining part of sentence.

Let record of the trial court be sent alongwith judgment for information and compliance.