Jharkhand High Court
Lacchu Ganjhu vs The State Of Jharkhand on 7 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No.695 of 2014
(Against the judgment of conviction dated 25.08.2014 and the order of
sentence dated 27.08.2014, passed by the learned District & Addl. Sessions
Judge-II, Latehar in N.D.P.S Case No. 08 of 2009)
1. Lacchu Ganjhu, son of late Jairam Ganjhu
2. Parana Ganjhu, son of late Sanichar Ganjhu
Both r/o-village-Lukaiya, PS-Chandwa, District-Latehar
... Appellants
Versus
The State of Jharkhand ... Respondent
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(Heard through V.C on 07th April, 2021)
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. Amit Kumar Choubey, Advocate
For the State : Mr. Shekhar Sinha, PP
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Oral Judgment
07th April, 2021
Per, Shree Chandrashekhar, J.
Chandwa PS Case No. 28 of 2009 was registered on
04.03.2009 against Lacchu Ganjhu and Parana Ganjhu on the
allegation of illegal cultivation of poppy plants. After the
investigation charge-sheet was submitted under sections 15 and
21 of Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as N.D.P.S Act). In N.D.P.S Case No. 08 of
2009 a charge under sections 15, 18 and 21 of N.D.P.S Act was
framed against Lacchu Ganjhu and under section 18 of N.D.P.S
Act against Parana Ganjhu. During the trial the prosecution has
examined eight witnesses out of whom PW3-Rakesh Thakur
and PW5-Md Mahtab were tendered for cross-examination.
2 Cr. Appeal (DB) No. 695 of 2014
PW1-Rupesh Nayak who was the driver was declared hostile when
he stated in the Court that he put his signature on the papers at
the police station; that the bundle of poppy (posta) plants was tied
with a cloth, and; that he cannot give description of the poppy
plants. The learned District & Additional Sessions Judge-II,
Latehar has held that the seizure witnesses have proved seizure of
the illegal narcotic plants and the other witnesses such as PW2,
PW4 and PW8 have also supported the prosecution case. Lacchu
Ganjhu was convicted and sentenced to R.I for ten years with a fine
of Rs. 1,00,000/- under sections 15 and 21 of N.D.P.S Act on each
count separately. Lacchu Ganjhu was further convicted and
sentenced to R.I for 10 years with a fine of Rs. 1,00,000/- under
section 18 of N.D.P.S Act. The appellant, namely, Parana Ganjhu
was convicted and sentenced to R.I for ten years with a fine of
Rs. 1,00,000/- under section 18 of N.D.P.S Act.
2. On 04.03.2009 Shamim Ahamad Khan was posted as
officer-in-charge of Chandwa PS. On the basis of his statement a
First Information Report was lodged against Lacchu Ganjhu and
Parana Ganjhu. In his statement recorded on 04.03.2009 at
11:30 AM in the village Lukaiya, Shamim Ahamad Khan has
disclosed that on the basis of a secret information that poppy is
cultivated in the field of Parana Ganjhu after making entry in the
Station Diary he sent information to the Block Development Officer
and asked him to participate in the proceeding as a Magistrate.
Thereafter he proceeded for village Lukaiya with Ramdeo Ram Ravi
and the police force and in course of enquiry he was told that
Lacchu Ganjhu has cultivated poppy in the field of Parana Ganjhu.
About one kilometer away from the village he found two persons
removing Doda from the poppy field. On enquiry they disclosed
their identity. On the boundary of the field he found four gunny
bags and one plastic bag containing 50-60 kilograms Doda. On
enquiry Lacchu Ganjhu and Parana Ganjhu admitted that Lacchu
Ganjhu has cultivated poppy in the field of Parana Ganjhu. The
poppy plants were seized in the presence of independent witnesses
and he also put his signature on the same. Thereafter confessional
3 Cr. Appeal (DB) No. 695 of 2014
statement of Lacchu Ganjhu was recorded by Ramdeo Ram Ravi,
the Investigating Officer.
3. The witnesses examined by the prosecution during the
trial were official witnesses. The learned counsel for the appellants
has raised a plea that the procedure prescribed for search and
seizure was not followed, the prosecution has not established that
poppy was cultivated in the agricultural field of Parana Ganjhu
and, above all, on the basis of the evidence of official witnesses
conviction of the appellants cannot be recorded under sections 15,
18 and 21 of N.D.P.S Act.
4. PW1 is the driver who was posted at the police station.
He has stated that the officer-in-charge and the police force had
proceeded for village Lukaiya and Doda was seized in his presence.
In his cross-examination he has stated that he put his signature
on the seizure-memo in the police station and poppy plants tied
with the cloth were kept in a room. He has further stated that he
does not know how a poppy plant looks like. At this stage he was
declared hostile at the instance of the prosecution. PW2 is a
constable who was member of the raiding party. He has stated that
near the bank of a river in village Lukaiya he has seen two persons
removing poppy with the sickle and on enquiry they disclosed their
identity. He has further stated that a seizure-memo of Doda and
opium (Aphim) was prepared by the officer-in-charge. In the cross-
examination he has stated that there were 15-20 houses near the
field from where seizures were made and at the time of seizure 3-4
other persons were also present there. PW3 and PW5 were
tendered for cross-examination by the prosecution. PW4 and PW6
were also members of the raiding party. PW4 has also stated that
on 04.03.2009 he accompanied the officer-in-charge, Ramdeo Ram
Ravi and the Block Development Officer to Lukaiya village. Two
persons who were cutting poppy plants from a field on enquiry
disclosed their name. He has stated that a seizure-list was
prepared in the field and a plastic jar containing opium was
recovered from the house of Lacchu Ganjhu. In his cross-
examination he has stated that 16 persons had gone to village
4 Cr. Appeal (DB) No. 695 of 2014
Lukaiya on motorcycle, all were police personnel. PW6 who was
Chowkidar of Sere Panchayat has stated that poppy plants in 2-3
bags were brought at Chandwa PS. In his cross-examination he
has stated that he put his signature on the seizure-memo at the
police station.
5. In the evidence of these witnesses, we do not find any
reference regarding compliance of sections 42, 43, 52 and 57. It is
true that provisions of section 52 and 57 are directory and
violation of these provisions would not ipso facto vitiate the trial or
conviction, however, the investigating officer cannot ignore these
provisions in entirety. The provisions of N.D.P.S Act have to be
construed strictly and the safeguards provided therein have to be
scrupulously and honestly followed. In "Tofan Singh v. State of
T.N." (2013) 16 SCC 31 the Hon'ble Supreme Court has held that
N.D.P.S Act is a complete Code relating to narcotic substances, and
dealing with the offences and the procedure to be followed for the
detection of the offences as well as for the prosecution and the
punishment of the accused.
6. The prosecution case against the appellants is based on
cryptic and insufficient evidence. The chain leading to seizure and
production of the contraband was completely broken. There is no
evidence that the seized contraband was deposited in Malkhana.
The Malkhana register was not produced and in-charge of
Malkhana was not examined during the trial. The Block
Development Officer who allegedly accompanied the raiding team
was not examined by the prosecution. In "Ashok v. State of M.P."
(2011) 5 SCC 123 the Hon'ble Supreme Court has observed that
seizure witnesses turning hostile may not be very significant by
itself but before a conviction is recorded there must be connecting
evidence. But, in the present case, there is no satisfactory
evidence, either oral or documentary, to show that the seized
contraband was cultivated by the appellants and report of the
chemical examination was of the seized material.
7. The prosecution evidence, that there are several houses
near the field from where Doda was seized and 4-5 other persons
5 Cr. Appeal (DB) No. 695 of 2014
were also present there at the time of seizure, creates doubt on the
prosecution case that the seized materials belonged to the accused,
and statement of the witnesses that poppy plants were tied with a
cloth and they put their signature at the police station further
erodes credibility of the prosecution case. The evidence of PW4 and
PW6 has, in fact, completely clouded the prosecution case with
serious doubts.
8. In "Jitendra v. State of M.P." (2004) 10 SCC 562 the
Hon'ble Supreme Court has observed as under:
"5. The evidence to prove that charas and ganja were
recovered from the possession of the accused
consisted of the evidence of the police officers and the
panch witnesses. The panch witnesses turned hostile.
Thus, we find that apart from the testimony of
Rajendra Pathak (PW 7), Angad Singh (PW 8) and
Sub-Inspector D.J. Rai (PW 6), there is no independent
witness as to the recovery of the drugs from the
possession of the accused. The charas and ganja
alleged to have been seized from the possession of the
accused were not even produced before the trial court,
so as to connect them with the samples sent to the
Forensic Science Laboratory. There is no material
produced in the trial, apart from the interested
testimony of the police officers, to show that the
charas and ganja were seized from the possession of
the accused or that the samples sent to the Forensic
Science Laboratory were taken from the drugs seized
from the possession of the accused. Although the High
Court noticed the fact that the charas and ganja
alleged to have been seized from the custody of the
accused had neither been produced in the court, nor
marked as articles, which ought to have been done,
the High Court brushed aside the contention by
observing that it would not vitiate the conviction as it
had been proved that the samples were sent to the
Chemical Examiner in a properly sealed condition and
those were found to be charas and ganja. The High
Court observed, "non-production of these commodities
before the court is not fatal to the prosecution. The
defence also did not insist during the trial that these
commodities should be produced". The High Court
relied on Section 465 CrPC to hold that non-production
of the material object was a mere procedural
irregularity and did not cause prejudice to the
accused."
9. PW7 who was the officer-in-charge has deposed in the
Court that on 04.03.2009 he received secret information which
was entered in the Station Diary as Sanha No. 86. On his request
the Block Development Officer, Chandwa accompanied him to
Lukaiya village. He has found two persons cutting poppy plants in
6 Cr. Appeal (DB) No. 695 of 2014
the field and on enquiry they disclosed their name Parana Ganjhu
and Lacchu Ganjhu. He has seized 50-60 kilograms Doda in two
plastic bags and one plastic sheet in presence of Ranthu Oraon
and Spus Nayak. In his cross-examination he has stated that he
has not recorded total area and description of the land in which
poppy was planted. PW8 who is the investigating officer has stated
that he recorded confessional statement of Lacchu Ganjhu who
admitted that he had cultivated poppy over the land of Parana
Ganjhu. He has further stated that the seized contraband was
deposited in the Malkhana. Next day he forwarded the accused for
judicial custody and on completion of the investigation submitted a
charge-sheet against them under sections 15 and 21 of N.D.P.S
Act. When he was examined in the Court he produced the FSL
report. He has identified signature of Dr. A. K. Bapuli, Director of
FSL. In his cross-examination he has admitted that he did not
enquire about khata number, plot number and ownership of the
field, and weight of contraband was not taken rather approximate
weight was recorded. He did not record statement of the land
owners of the adjoining fields and did not prepare the site map of
the field. He has further admitted that he has not written in the
case diary that before entering the house of Lacchu Ganjhu he
made an offer for his search. He did not provide a copy of the
seizure-memo to the accused and the seized contraband was
produced in the Court after about two months.
10. In "Alakh Ram v. State of U.P." (2004) 1 SCC 766 the
Hon'ble Supreme Court has observed that the prosecution must
prove that the property from which contraband plants were
uprooted/seized belonged to the accused or that the accused has
right over the property. It was further observed that:
"6. The above evidence is to be appreciated in the
background of other evidence on record. Appellant
Alakh Ram, his father and brothers owned 70 bighas
of land. The prosecution has not produced any
document to show that the property from which the
ganja plants were uprooted belonged to appellant
Alakh Ram exclusively. The witnesses who were
examined in support of the prosecution also have not
given any evidence to show that this property belongs
to appellant Alakh Ram. There is no satisfactory
7 Cr. Appeal (DB) No. 695 of 2014
evidence, either oral or documentary, to show that the
appellant has a right over the property from which the
ganja plants were recovered. There is no evidence
that the appellant cultivated these ganja plants.
Having regard to the extent of the property and the
number of plants recovered from that property, it
cannot be said that these plants had been the result
of cultivation. They may have sprouted there by
natural process and the appellant or anybody who is
the owner of the property must not have been diligent
in destroying the plants. There is no evidence to prove
that there was cultivation of ganja plants by the
appellant and the Additional Sessions Judge wrongly
convicted him as the evidence adduced by the
prosecution was not carefully scrutinized by the
Court. The High Court committed error in confirming
the conviction and sentence of the appellant."
11. The prosecution has relied on the confessional
statement of Lacchu Ganjhu which was recorded by Ramdeo Ram
Ravi, S.I of Chandwa PS on 04.03.2009 at about 12:05 hours. In
the confessional statement Lacchu Ganjhu has stated that he
gathered information from his relatives that cultivation of poppy
plants is quite profitable and so he approached Parana Ganjhu
who had land near the river and started cultivation of poppy
plants. The confessional statement of an accused is inadmissible in
evidence and the primary reason for that had been distrust on the
police action by the Courts.
12. In "Queen Empress v. Babu Lal" ILR (1884) 6 All 509,
Mahmood, J., has observed as under :
"... the legislature had in view the malpractices of
police officers in extorting confessions from accused
persons in order to gain credit by securing convictions,
and that those malpractices went to the length of
positive torture; nor do I doubt that the legislature, in
laying down such stringent rules, regarded the
evidence of police officers as untrustworthy, and the
object of the rules was to put a stop to the extortion of
confession, by taking away from the police officers the
advantage of proving such exported confessions
during the trial of accused persons."
13. Under section 67 of N.D.P.S Act an officer referred to in
section 42 who is authorized by the Central Government or the
State Government may, during the course of any enquiry in
connection with the contravention of any provisions of this Act - (a)
call for information from any person for the purpose of satisfying
8 Cr. Appeal (DB) No. 695 of 2014
himself whether there has been any contravention of the provisions
of this Act or any rule or order made thereunder; (b) require any
person to produce or deliver any document or thing useful or
relevant to the enquiry; (c) examine any person acquainted with the
facts and circumstances of the case. But any statement of an
accused recorded under section 67 is treated as statement before a
police officer and thus hit by section 25 of the Evidence Act.
14. In "Tofan Singh v. State of T.N." 2020 SCC OnLine SC
882 the Hon'ble Supreme Court has held as under:
"158. We answer the reference by stating:
(i) That the officers who are invested with powers
under section 53 of the NDPS Act are "police officers"
within the meaning of section 25 of the Evidence Act,
as a result of which any confessional statement made
to them would be barred under the provisions of
section 25 of the Evidence Act, and cannot be taken
into account in order to convict an accused under the
NDPS Act.
(ii) That a statement recorded under section 67 of the
NDPS Act cannot be used as a confessional statement
in the trial of an offence under the NDPS Act."
15. Even otherwise, confessional statement of a co- accused
is weak piece of evidence and confession made by an accused must
be subject to closure scrutiny and it needs to be corroborated by
some other evidence.
16. In "Haricharan Kurmi v. State of Bihar" AIR 1964 SC
1184 the Hon'ble Supreme Court has observed that if a statement
by an accused person is found to be voluntary and it amounts to a
confession in the sense that it implicates the maker, it is not likely
that the maker would implicate himself untruly, and so section 30
provides that such a confession may be taken into consideration
even against a co-accused, however, the proper approach to adopt
would be to consider the other evidence against the co-accused and
if such evidence may sustain the charge framed against him the
Court may turns to the confession with a view to lend assurance to
the tentative opinion formed by it.
17. Subject to the exception provided therein, section 8 of
Narcotic Drugs and Psychotropic Substances Act, 1985 provides
that: no person shall - (a) cultivate any coca plant or gather any
9 Cr. Appeal (DB) No. 695 of 2014
portion of coca plant; or (b) cultivate the opium poppy or any
cannabis plant; or (c) produce, manufacture, possess, sell,
purchase, transport, warehouse, use, consume, import inter-State,
export inter-State, import into India, export from India or transship
any narcotic drug or psychotropic substance, except for medical or
scientific purposes and in the manner and to the extent provided
by the provisions of the Act. The prosecution evidence is that the
appellants were found removing poppy plants from the field and
Lacchu Ganjhu has suffered a disclosure statement admitting that
he was cultivating in the field of Parana Ganjhu but, there is no
independent supporting evidence to establish that the appellants
were cultivating poppy in contravention of the provisions of N.D.P.S
Act. The prosecution evidence that poppy plants were seized in the
field belonging to Parana Ganjhu is not sufficient to fasten liability
under sections 15, 18 and 21 of N.D.P.S Act upon the appellants.
18. In view of the aforesaid undisputed facts, we hold that
the prosecution has failed to prove the charges against the
appellants and, accordingly, the judgment of conviction dated
25.08.2014 and the order of sentence dated 27.08.2014 against the
appellants, namely, Lacchu Ganjhu and Parana Ganjhu of R.I for
ten years and a fine of Rs.1,00,000/- each under section 18 of
N.D.P.S Act, and also against the appellant, namely, Lacchu
Ganjhu of R.I for ten years and a fine of Rs. 1,00,000/- each both
under section 15 and section 21 of N.D.P.S Act, passed by the
learned District & Addl. Sessions Judge-II, Latehar in N.D.P.S Case
No. 08 of 2009, are set-aside.
19. Mr. Shekhar Sinha, the learned Public Prosecutor states
that the appellants, namely, Lacchu Ganjhu and Parana Ganjhu
are in custody.
20. Accordingly, the appellants, namely, Lacchu Ganjhu
and Parana Ganjhu who are in custody shall be set-free forthwith,
if not wanted in connection to any other criminal case.
21. In the result, Criminal Appeal (DB) No. 695 of 2014 is
allowed.
22. Let the lower Court records be sent to the Court
10 Cr. Appeal (DB) No. 695 of 2014
concerned forthwith.
23. Let a copy of the judgment be transmitted to the Court
concerned and the concerned Jail Superintendent through 'Fax'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 07.04.2021
Tanuj/
A.F.R
