Bombay High Court

Dnyandeo Atmaram Aswal vs The State Of Mah,. Thr.L P.S.O. ... on 4 September, 2017

Bench: Swapna Joshi

                                                                                             CRI.APPEAL.371.03
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                            CRIMINAL APPEAL NO. 371/2003 

          Dnyandeo s/o Atmaram Aswar
          Aged about 50 years,  
          R/o Hiwarkhed, Tq.Telhara 
          Dist. Akola.                                                               ..   APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through Police Station Officer 
          Hiwarkhed,  Tq.Telhara 
          Dist. Akola.                                                               .. RESPONDENT

...........................................................................................................................
           Mr. Anvar  Beig Mirza, Advocate  for  appellant 
           Mr. S.B. Bissa, Additional Public Prosecutor for  respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     4th  September,  2017

ORAL JUDGMENT:

This Appeal has been directed against the judgment and order

dated 12th March,2003 in Sessions Trial No. 8/2002 passed by the learned 1st

Ad-hoc Additional Sessions Judge, Akola, thereby convicting the appellant for

offence punishable under section 20(a)(b)(i) of the Narcotic and Psychotropic

Substances Act, 1985 (hereinafter referred to as "NDPS Act") and sentencing

him to suffer rigorous imprisonment for three years and to pay a fine of Rs.

2000/-, in default, to suffer RI for one month.

2. The prosecution case in nutshell, can be stated as under :

CRI.APPEAL.371.03

The appellant is an inhabitant of village Hiwarkhed. On

13.5.2002 PSI Kailash Phundkar (PW 2) who was working as Police Station

Officer of Police Station, Hiwarkhed, received a written information from

Police Head Constable-Ganesh Pachpor, to the effect that the person by name

Dnyandeo Aswar (appellant herein) cultivated ganja plantation in his field,

situated at Mouza:Hiwarkhed. On receipt of the said information, PSI Fundkar

(PW2) arranged for the raid. PW2-Fundkar along with panchas and other

police staff proceeded to the field of the appellant. They found the appellant

in the field itself. The field was inspected in the presence of appellant and as

many as 82 ganja plantations were found in the field of the appellant. Those

plants were uprooted, cleaned and one or two leaves weighing 100 gms from

each 82 plants were taken separately in a plastic bag for sample purposes and

the said bag was seized and sealed in the presence of Panchas. PW2-Fundkar

lodged a written report and on the basis of it, he registered an offence

punishable under sections 20(a)(b) and 22 of the NDPS Act. PW2 arrested the

appellant. PW2 then forwarded the sample of leaves to the Chemical

Analyser,Nagpur, for the purpose of analysis. PW2-Fundkar then collected

7/12 extracts of the field of the appellant and gave information of the

occurrence of the offence in writing to the Sub-Divisional Police Officer

(SDPO), Akot. After completion of investigation, PW2 filed charge sheet in

the competent court. The learned 1st Ad-hoc Additional Sessions Judge

framed the charge under section 20(a)(b)(i) of the NDPS Act against the

CRI.APPEAL.371.03

appellant. The appellant pleaded not guilty to the charge levelled against him

and claimed to be tried.

3. In order to substantiate the charge, the prosecution examined in

all eight witnesses. The defence of the appellant was of total denial. According

to the appellant, his field was not inspected in his presence and he was falsely

implicated in the case. It was also his case that he had given his field on lease

basis to his brother, by name, Pandurang and thus, he was not in a possession

of the said field and he had not cultivated the ganja plantation in his field.

4. Mr. Mirza, the learned counsel for the appellant vehemently

argued that the CA report (Exh. 41) reveals that Bhang was detected in the

samples, whereas Bhang does not come within the purview of the narcotic

drugs. As such, according to Mr. Mirza, even assuming that the plants were

taken charge from the field of the appellant, the leaves which were allegedly

sent to the CA office, were the Bhang leaves and Bhang is certainly not a

narcotic drug under the definition of section 2 (iii) (b) as the said sub-section

speaks about 'ganja' which is a flowering of fruiting tops of the cannabis plant

excluding the seeds and the leaves when not accompanied by tops. Thus, it

does not cover 'bhang' under the definition of Section 2(iii)(b) of the NDPS

Act. According to Mr.Mirza, therefore, the appellant has not committed the

offence punishable under section 20 (a)(b)(i) of the NDPS Act.

5. Mr. S.B.Bissa, the learned APP invited my attention to the

definition of the word 'ganja' as given in Section 2 (iii) (b) of the Act and

CRI.APPEAL.371.03

canvassed that it is a flowering of fruiting tops of cannabis plant excluding

the seeds and leaves. According to him, leaves were taken from the field of

the appellant and the same were sent for analysis as samples. No doubt,

Bhang is detected; however Bhang is one of the derivatives of the cannabis

plant and therefore in the CA report there is mention about the fact that "the

results of detection of cannabis constituents are positive in the exhibits". Mr.

Bissa contended that the CA report itself indicates that the cannabis

constituents were detected and the said fact is sufficient to establish

commission of the offence by the appellant.

6. A careful scrutiny of testimony of PW2-Fundkar (PSI) makes it

amply clear that PW2 has scrupulously followed the mandatory provisions

under the NDPS Act and the learned trial Judge has discussed those aspects in

details. PW2 deposed that on 13.5.2002, the Police Head constable Ganesh

(PW6) had given his information in writing. PW6 Ganesh has corroborated

the testimony of PW2 and,accordingly, the written report (Exh.12) was lodged

by Ganesh at Police Station, Hiwarkhed. Thus, the empowered police officer

PW2 had received information in writing regarding commission of offence by

the accused and this is the compliance of the provisions u/s 42(1) of the

NDPS Act. PW 2 further stated that on receiving information in writing as per

Exh.12 he had given duty pass on 13.5.2002 at Exh.13 to Police Constable

Chatre for giving the letter dated 13.5.2002 (Exh.15). He further stated that

one closed envelope was then given to the SDPO, Akot by him through one

CRI.APPEAL.371.03

Shri R.L.Shahare Police Constable. The compliance report as such is on

reverse of the duty pass at Exh.13. The documentary evidence as such came

on record coupled with oral testimony of PW2. Thus, there is compliance of

Section 42 (2) of the NDPS Act, empowering officer has sent a copy of the

information Exh.12 immediately to his superior on 13.5.2002. PW2 further

stated that panch-Arun Nemade was standing near the well in his field and he

was then informed that ganja plantation were in his field and PW2 wanted to

seize those ganja plantations and he is at liberty to take a search of Police staff

and panchas and for the same the letter was given to accused. It is further

stated by PW2 that the letter at Exh.21 was then given to him by me

informing him that he had a right of search of his field in the presence of

either gazetted officer or Executive Magistrate. Thus, there is a compliance of

Section 50 of the NDPS Act.

7. According to PW2, with the help of two panchas those 82 ganja

plantations were uprooted and its roots were cleaned by water and the same

were weighed and those were found to be 28 kg. and those ganja plantations

was ranging from 58 cm to 294 cm. He further stated that he had then taken

one leaf from each plantation and one or two seeds from those plantations and

the same were added in one plastic bag, weighing 100 gms. and on it a label

duly signed by him, panch and accused-Dnyandeo was pasted and it was

sealed by lakh. Thereafter, out of 82 ganja plantations 41 ganja plantations

were kept in one gunnybag and those 82 ganja plantations were kept in one

CRI.APPEAL.371.03

gunny bag and they were closed and seal was affixed on it. PW2 further

deposed that he had then lodged written report at Exh. 24 on 13.5.2002 duly

signed by him and on its basis he had registered a crime No.3032/2002, u/s

20(a)(b) of NDPS Act. It is further deposed that the special report dated

13.5.2002 at Exh.31 regarding registration of crime No.3032/2002 as above,

at Police station Hiwarkhed was submitted by PW2 to SDPO Akot thereby

PW2 had informed the SDPO Akot that he himself was investigating the

said crime. According to PW 2 he forwarded the said sealed sample in Crime

No.3032/2002 to the Chemical Analyser for examination. The testimony of

PW2-Fundkar is well-supported by the testimony of PW3-Arun Nemade, who

acted as a Panch. To sum up, all the mandatory provisions prescribed under

the relevant sections of NDPS Act were followed by the prosecution. The

testimony of PW2 as well as PW3 inspire confidence on all material aspects.

8. The main contention of Mr. Mirza, learned counsel for appellant

is that the field from where the ganja plants were allegedly taken charge by

the investigating agency, was not cultivated by the appellant. In this regard,

the learned APP invited my attention to the 7/12 extract dated 14.5.2002

(Exh.34) which depicts that the appellant was in possession of 0.31 R land.

Mr. Mirza, contended that the said document reveals the plants other than

ganja plants, such as Moong, cabbage, maize, vegetable, cluster beans, brinjal,

etc. In this context, it can be said that this document was issued on 14.5.2002

reflecting the possession on that day and the raid in this case was conducted

CRI.APPEAL.371.03

on 13.5.2002. In view thereof, there is no substance in the contention of

Mr.Mirza of non-mentioning of the ganja plants in the said document Exh.34.

9. The prosecution relied upon the testimony of PW5-Panjabrao

Wakode, Revenue Circle Inspector which indicates that PW5 has drawn the

map of 31R land belonging to the appellant and it was noted that water

was supplied to the field 31R from the well situated in Field S. No. 153. PW

5-Panjabrao has categorically stated that as per the revenue records, the

land admeasuring 31R in field Survey No.154 is in possession of Dnyandeo

Aswar (appellant). It is significant to note that apart from the suggestion of

the appellant that he had given the said land on lease basis to his brother-

Pandurang, in order to substantiate his case, the appellant has not placed any

document on record nor he has examined any witness in that behalf. In view

thereof, I have no hesitation in coming to the conclusion that the field

bearing Survey No.154 admeasuring 31R was in occupation, possession and

cultivation of the appellant.

10. Now coming to the point that Bhang is not covered under

NDPS Act, an useful recourse be taken to Section 2-Definitions, of the NDPS

Act. Section 2 (iii) (b) of the NDPS Act reads as under :-

"2(iii) (b): 'Ganja' that is, the flowering of fruiting tops of the cannabis plant excluding the seeds and leaves when not accompanied by the tops, by whatever, name they may be known or designated."

CRI.APPEAL.371.03

From the above-quoted definition, it is clear that ganja is one of

the derivatives of the cannabis plant and ganja plant means cannabis plant.

The CA report shows that, (i)Bhang is detected in the sample; (ii) the results

of the cannabis constituents are positive. Thus, Bhang is one of the derivatives

of the cannabis plant. Hence there is a mention in the CA report regarding the

result of detection of cannabis constituents. From the CA report, it is

established that the result of detection of constituents of cannabis plants are

positive. Hence it is established that the sample being the leaves of ganja or

cannabis plant, showing the detection of constituents of cannabis are the

leaves of cannabis (ganja) plant, which are proved to be cultivated in the

field of the appellant.

11. Mr. Mirza, learned counsel for the appellant contended only the

leaves were taken for the sample purpose and flowering of fruiting tops

of the same were not taken and therefore as per CA report (Exh.41) ganja is

not detected therein whereas bhang is detected which is not covered under

the provisions of the NDPS Act. He further submitted that the prosecution has

not proved satisfactorily the charge against the appellant and, therefore, the

appellant is entitled for acquittal. As discussed above, the CA report makes it

amply clear that the cannabis constituents were detected and bhang is also

detected in the sample. In view of the observations in the CA report and also

considering the fact that on the bhang plant only the flowering of fruiting

tops are developed which are termed as ganja, it can be safely said that the

CRI.APPEAL.371.03

appellant cultivated ganja plants.

12. Mr. Mirza, the learned counsel for the appellant placed reliance

upon the judgment in the case of Madhukar Kanthale vs. State of Mahrashtra

reported in 2002 All MR (Cri) 1381. In that case, the allegations against the

accused were that he was selling ganja and bhang illegally. The accused was

convicted by the learned trial Judge for the offence punishable u/s. 20(b)(i)

well as u/s 20(b)(ii) of the NDPS Act. In appeal before this Court, the

sentence u/s 20(b)(i) was affirmed. In that case, this Court placed reliance

upon the decision of Rajasthan High Court in the case of Daulat Kumar v.

State of Rajasthan, reported in 1992 Drugs Cases 395. It is observed in

Paragraph 4 of the said judgment as under :

"4. From the above definitions, it could be said that for the purposes of this Act, "cannabis (hemp) is different from "cannabis plant". Cannabis (hemp) includes charas and ganja but excludes the seeds, and leaves of the plant. These seeds and leaves are included in "cannabis plant." However, possession of "cannabis plant" is not included in the definition of narcotic drug. The offence in relation to cannabis plant can be said to be committed under the Act only when a person cultivates a cannabis plant. In Section 20 of the Act, where reference has been made to cannabis plant is punishable and not possession of such plant. Offence could be said to have been committed in relation to cannabis (hemp) if some one produces, possesses, sells or uses cannabis but when it comes to "cannabis plant" only the cultivation of the cannabis plant is punishable."

CRI.APPEAL.371.03

13. In the case of Manjee vs. State of Rajasthan, reported in 1997(i)

(Crime) 164, in paragraph nos. 8 and 9, it is observed,

"8. For deeper understanding of the controversy involved in the present case it is pertinent to mention that Bhang cannabis plants are of two kinds known as a male and female. A female cannabis plant is called Pistillate Plants whereas male plants are identified by Short Axillary Drooping Panicles. Female flowering tops quoted with resin are Ganja whereas fruiting leaves are called Bhang ( see Vanoshadi Nirdeshika (Ayurvedic Pharmacopia) written by Dr.Ram Sushil Singh, published by Hindi Samiti, Suchna Vibhag, Uttar Pradesh, Lucknow.

9. According to Modi's Medical Jurisprudence and Toxicology 21st edition, 1988: Section II Toxicology Chapter XXXIV Page 248, Bhang Siddhi,Putti, are cannabis Sativa consists of dried leaves and fruiting shoots wheres Ganja has rusty green colour and the characteristic odour and consists of flowering or fruiting tops of the female plant quoted with resin. According to Modi's Toxicology, charas is concentrated resin excluding from the leaves and stems of the plant."

Thus, from the observations made in the aforesaid judgment it

is amply clear that the bhang and ganja are the products from the same

cannabis plants. Bhang is from the leaves of the plant and ganja is from the

flowering of fruiting tops of such cannabis plant. The learned trial Judge has

CRI.APPEAL.371.03

rightly come to the conclusion that 82 ganja plantations found in the field of

the accused which were uprooted, cleaned and weighed were cannabis plant.

14. In the backdrop of the above-referred facts and the provisions of

the NDPS Act, there is no substance in the Appeal. The learned trial Judge

has rightly considered the evidence adduced on record. No illegality,

perversity or irregularity is noticed in the judgment and order delivered by

the learned trial Judge. Hence the following order :-

ORDER

i) Criminal Appeal No. 371/2003 is dismissed.

ii) The judgment and order dated 12.03.2003 passed in Sessions Trial No.

8/2002 delivered by the learned 1st Ad-hoc Additional Sessions Judge, Akola

convicting the appellant of the offence punishable under section 20(1)(b)(i) of

the NDPS Act, and sentencing him to suffer RI for three years and to pay a

fine of Rs. 2000/-, in default, to suffer RI for one month, is maintained.