Chattisgarh High Court
Sadhuram Agrawal vs State Of Chhattisgarh on 14 January, 2025
1
2025:CGHC:2375
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 75 of 2007
Sadhuram Agrawal S/o Vishweshar Prasad aged about 49
years, Occupation - Business, R/o Village - Pathalgaon,
Thana, Pathalgaon, District- Jashpur, Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh, Through : Station House Officer, P.S.
Pathalgaon, District-Jashpur, Chhattisgarh.
---- Respondent
For Appellant : Mr. Sanjay Agrawal, Advocate.
For Respondent/State : Mr. H.A.P.S. Bhatia, P.L.
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
(14.01.2025)
1. The present appeal arises out of the impugned judgment of
conviction and order of sentence dated 17.01.2007 passed
by the learned Special Judge (N.D.P.S. Act), Jashpur,
District - Jashpur (C.G.), in Special Criminal Case No.
08/2004 whereby, the learned Special Judge has convicted
and sentenced the appellant as under :-
Conviction Sentence
U/s 20(b)(ii)(A) of R.I. for 1 month and fine of Rs.
N.D.P.S. Act 1,000/-, in default of payment of
fine amount additional R.I. for 1
week.
2. Brief facts of the case are that on 29.11.2004 at about
11:10 am, Asst. Sub-Inspector, R.S. Verma (PW-4) of police
station Pathalgaon received secret information that another
co-accused namely Sukhsai was having a Ganja plant in
his nursery (Badi) situated at Bandhanpara of village
Tamta. After receiving the said information the concerned
officer along with his staff reached the spot i.e., the nursery
(Badi) of another co-accused Sukhsai in village Tamta
where they found a ganja plant. The said plant was seized
in the presence of independent witnesses and thereafter the
other accused Sukhsai was arrested. After completion of
the investigation charge sheet was filed against co-accused
Sukhsai and the present appellant was implicated vide
order of learned trial Court dated 14.03.2005 considering
that the land from where the alleged plant has been seized
is under the statutory possession of the appellant.
3. So as to hold the accused/appellant guilty, the prosecution
has examined as many as 5 witnesses and exhibited 21
documents. The statement of the accused/appellant was
also recorded under Section 313 of the Cr.P.C. in which he
denied the circumstances appearing against him and
pleaded innocence and false implication in the case.
4. After hearing the parties, vide impugned judgment of
conviction and order of sentence dated 17.01.2007, learned
Special Judge has convicted and sentenced the
accused/appellant as mentioned in para-1 of this
judgment. Hence, the present appeal.
5. Learned counsel for the appellant submits the prosecution
has completely failed to prove the fact that the alleged ganja
plant was seized from the exclusive possession of the
appellant. The independent witnesses Ghursai (PW-1) and
Raidhar (PW-2) have not supported the seizure and search
of the Ganja plant they have turned hostile. He further
submits that the prosecution has completely failed to prove
the fact that the appellant had cultivated this prohibited
plant, the appellant has been convicted merely on the
ground that he was the owner of the land. He also submits
that there is no FSL report to show that the seized plant
from the nursery of the appellant was ganja. As such, the
conviction of the appellant is not sustainable and he is
liable to be acquitted. He placed reliance on the decision of
this Court in the matter of Darasi Bai vs. State of
Chhattisgarh, passed in CRA No. 446/2005 on
06.01.2025 and on the decision of the Hon'ble Supreme
Court in the matter of Alakh Ram Vs. State of U.P.,
reported in (2004) 1 SCC 766.
6. Per contra, learned counsel appearing for the State,
supporting the impugned judgment, opposed the
arguments advanced on behalf of the appellant.
7. Heard learned counsel for the parties and perused the
material on record including the impugned judgment.
8. It is clear from the record that initially, a charge sheet was
filed against the co-accused Sukhsai who physically owned
the said nursery (Badi) from where the alleged plant of herb
had been seized but by the order of learned trial Court
dated 14.03.2005 the present appellant was also implicated
in this case as the statutory possession of the land was of
the appellant herein.
9. Further, it is also clear from the record that FSL report has
not been filed by the prosecution and only the memo of the
Superintendent of Police (Ex.P-20) is attached with the
charge sheet and before passing the impugned judgment,
no FSL report was filed by the prosecution but the learned
trial Court only on the ground that the investigating officer
identified the contraband plant as ganja, which was seized
from the nursery of the appellant. The independent
witnesses Ghursai (PW-1) and Raidhar (PW-2) have not
supported the seizure and search of the Ganja plant, they
have turned hostile.
10. The Hon'ble Apex Court in the matter of Alakh Ram (supra)
in para 4 has held as under:
"4. We heard the appellant's counsel and the
counsel for the respondent. Under section 8(b) of
the NDPS Act, cultivation of opium poppy or any
cannabis plant is prohibited and under Section
20 of the NDPS Act, such cultivation of cannabis
plant is made punishable with imprisonment
and fine. In order to prove the guilt, it must be
proved that the accused had cultivated this
prohibited plant. There must be supporting
evidence to prove that the accused cultivated the
plant and it is not enough that few plants were
found in the property of the accused. It is quite
reasonable to assume that sometimes the plants
may sprout up, if seeds happen to be embedded
in earth due to natural process. If plants are
sprouted by natural growth, it cannot be said
that it amounts to cultivation."
11.This Court in the matter of Darasi Bai (supra) relying upon
the matter of Santosh vs. State of C.G., 2006(1) CGLJ
323, and Laxmiprasad vs. State of M.P. (Now C.G.),
2010(2) CGLJ SN 26 (CG) has held as under:
"14. In this case also, no FSL report was filed by
the prosecution and no training certificate was
filed by the Investigating Officer who had
identified the contraband article as ganja. It is
also admitted by the independent witness that
the house was not in exclusive possession of the
appellant. Hence, it is clear that the prosecution
has utterly failed to prove its case beyond
reasonable doubt against the appellant."
12.In the case in hand, applying the principles above laid
down by the Hon'ble Apex Court in the subject matter, it is
clear that there is no FSL report to show that the seized
herb from the nursery (Badi) of the appellant/accused was
ganja, furthermore, the seizure witnesses have turned
hostile and do not support the seizure of the said
contraband. There must be supporting evidence to prove
that the accused cultivated the plant and it is not enough
that few plants were found in the property of the accused.
It is quite reasonable to assume that sometimes the plants
may sprout if seeds are embedded in the earth due to
natural processes. If plants are sprouted by natural growth,
it cannot be said that it amounts to cultivation. Without
supporting evidence, the appellant cannot be convicted for
the aforesaid offence. As such, the conviction of the
appellant under Section 20(b)(ii)(A) of the NDPS Act and the
sentence imposed thereunder cannot be sustained in the
eye of law.
13.In the result, the appeal is allowed. The impugned
judgment is set aside and the accused/appellant is
acquitted of the said charge. Fine, if any, deposited by the
appellant shall be refunded to him.
14.The appellant is on bail. He need not to surrender in this
case. His bail bond shall remain in force for a period of six
months in view of the provisions contained in Section 437-
A of the CrPC.
15.Record of the Trial Court be sent back along with a copy of
this judgment forthwith for information and necessary
action, if any.
Sd/-
(Sanjay Kumar Jaiswal)
JUDGE
H.L. Sahu
