Arun Sharma vs The State Of M.P.
2023 Latest Caselaw 6007 MP

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                      ON THE 13 th OF APRIL, 2023
                  CRIMINAL APPEAL No. 140 of 2005

BETWEEN:-
ARUN SHARMA S/O RAMDAYAL SHARMA, AGED
ABOUT 44 YEARS, OCCUPATION: LABOURER RESIDENT
OF VAGHEDARI DARWAJA, KARERA, P.S.KARERA,
DISTRICT SHIVPURI (MADHYA PRADESH)

                                                              .....APPELLANT
(SHRIAJAY SINGH RATHORE, LEARNED COUNSEL FOR THE
APPELLANT)

AND
THE STATE OF M.P. THROUGH S.H.O. P.S.KARERA,
DISTRICT SHIVPURI (MADHYA PRADESH)

                                                            .....RESPONDENT
( SHRI VIRENDRA PAL- LEARNED COUNSEL FOR THE RESPONDENT-
STATE)

      This appeal coming on for HEARING this day, th e court passed the
following:
                                JUDGMENT

Instant criminal appeal u/S 374(2) of CrPC r/w Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the NDPS Act'') has been preferred by appellant Arun Sharma being aggrieved by judgment of conviction and order of sentence dated 12th January, 2005 passed by Special Judge (NDPS Act), Shivpuri, District Shivpuri (MP) in Special Sessions Trial No.04 of 2004, whereby the appellant has been convicted under Section 2(3) r/w Section 20(C) of the NDPS Act and sentenced to undergo 10 years RI with fine of Rs.1 lac and in default whereof,

to undergo further 5 years RI.

(2) In nutshell, prosecution case is that on 13-01-2004, on receiving a letter/complaint dated 07-01-2004 from District Excise Officer, Shivpuri, namely, H.P. Gupta (PW8), the Assistant Sub-Inspector of Police Station Karera, namely, Shivnath Singh Bais (PW15) along with other police forces went to the house of appellant and upon searching the house of appellant situated at Modoripura, Karera where appellant was found growing cannabis plant illegally in the courtyard of his house having 10 feet height along with flowers. Upon making search, appellant was found in the house wearing underwear and baniyan and on seeing them, he ran away from back of house.

After plucking leaves of said plant, the same were smelt and in the presence of witnesses, the said plant was identified as cannabis plant. Said plant was removed along with roots and thereafter they were sealed by three packets of 30-30 grams for the purpose of samples. The seized contraband was weighted at flour-mill of one Babu Kushwah (PW7) near the place of the incident and on weighing it was found 11.400 kilograms. Search Panchanama was prepared and thereafter upon reaching the police station, FIR vide Ex.P20 was registered against appellant at Crime No.19 of 2004 for offence under Section 2(3) of NDPS Act. Spot map was prepared, statements of witnesses were recorded and matter was investigated. Seized sample of contraband article was sent to FSL, Sagar from where FSL report Ex.P21 was received. After completion of investigation, charge sheet was filed before the competent Court from where case was committed to Special Court. The learned trial Court framed charges under Section 2(3) r/w Section 20 of NDPS Act against appellant. Statement of appellant was recorded under Section 313 CrPC. He abjured his guilt and

pleaded complete innocence and in his defence, he stated that he has been falsely implicated. During the course of trial, Prosecution in support of its case examined as many as 17 witnesses whereas the appellant did not examine any witness in support of his defence. After conclusion of trial, the trial Court held the appellant guilty and convicted him under Section 2(3) r/w Section 20(C) of the NDPS Act and sentenced him accordingly, as stated above. (3) It is the contention of learned counsel for the appellant that the prosecution put up its case on the ground that cannabis plant was found in the courtyard of house of appellant but the prosecution has utterly failed to prove that as to whether the said plant was planted on the land or was in exclusive possession of the appellant. It is further contended that where identification and recovery of contraband is doubtful, conviction of appellant under the NDPS Act is unsustainable. It is further contended that the alleged house is belonging to the mother of appellant and other family members are also living in the said house, therefore, only the present appellant is not responsible for growing the said cannabis plant at the place from where it was recovered. Further, it is contended that at the time of preparation of seizure, the appellant was not present on the spot. Neither there is any mark of seal in the seizure memo, so that it cannot be said that seized plant has been sent for chemical examination. There is a procedure that whenever anything is seized, seal should be affixed on

the sealed packet and impression of seal should be affixed on the seizure memo, so that any manipulation could not be done, but in the present case, the said procedure has not been followed. Besides this, independent witnesses, namely, PW1 Suresh and PW2 Matadeen have not supported the prosecution version and they have been declared hostile by the prosecution on the point of identification of accused as well as seizure of contraband from the possession

of appellant. It is further contended that since all the interested witnesses being police officials, therefore, their evidence being not trustworthy and reliable. There was non-compliance of mandatory provisions of Sections 42(2), 50 and 57 of the NDPS Act. The prosecution has failed to prove it case beyond reasonable doubt and in such circumstances, learned trial Court has committed an error in convicting the present appellant. Therefore, the appellant deserves acquittal and the impugned judgment of conviction and order of sentence deserves to be set aside. In support of contentions, learned counsel for the appellant has relied on the judgments of Hon'ble Apex Court in the the matters o f Alakh Ram vs. State of UP, (2004) SCC 766 and Gangadhar alias Gangaram vs. State of Madhya Pradesh (2020) 9 SCC 202 as well as the judgments of Main Seat of this High Court in the case of Dhannulal vs. State of MP (CRA No.667 of 2000, decided on 26-09-2000), Amar Bahadur Khadak Bahadur vs. State of MP (CRA No.466 of 1994, decided on 15- 09-1998 and the judgment of Charanlal vs. State of MP reported in 1998 (1) JLJ 142.

(4) On the other hand, learned counsel for the State supported the impugned judgment and submitted that from the place where contraband article was seized was in the ownership o mother of the appellant and the appellant- accused resides with his mother. In this regard, certificate of Chief Municipal Officer, Karera has been affixed. After securing search warrant, the seizing officer was on the spot. At the time of seizure, the appellant ran away from the spot. In such a situation, the trial Court has rightly convicted and sentenced the appellant. No interference is warranted. Hence, prayed for dismissal of this appeal.

(5) Heard the learned counsel for the parties and perused the record of the trial Court.

(6) The first contention of counsel for the appellant that appellant cannot be convicted until and unless his exclusive possession is not proved upon the seized plant of cannabis. In order to prove the guilt of the appellant, there must be supporting evidence to prove that appellant had cultivated the alleged contraband plant and it is not enough that only one plant was found in the courtyard of the house of the appellant and it is quite reasonable to assume that sometimes, the plant may sprout up, if seed happens to be embedded in earth due to natural process. If plant is sprouted by natural growth, it cannot be said that it amounts to cultivation of alleged cannabis plant. Therefore, conviction of the appellant is based on mere presumption of ownership of aforesaid house so as to attribute presumption under the NDPS Act against him with regard to recovery of contraband article. Hence, the guilt of appellant is not established beyond reasonable doubt.

(7) Next contention of counsel for the appellant that the prosecution did not prove that from the courtyard of the house of the appellant from where the cannabis plant was seized, was sealed at the spot and was sent to FSL in that state that the same was seized without tampering with contraband article. There is a serious lacuna in the evidence of Investigating Officer, therefore, the benefit of this cannot be given to the prosecution but the benefit should be given to the accused if seizure and sealing of plant on the spot is not proved. (8) The further contention of counsel for the appellant that the two independent witnesses namely, Suresh (PW1) and Matadeen (PW2) did not support their testimony. Other independent witnesses namely, Jagdish (PW3), Punna (PW4), Prakash (PW6) and Rajbhaiya (PW13) have also not supported

the prosecution version and except Rajbhaiya (PW13), all of them denied to identify the appellant in their Court statements and they have specifically stated that they had never seen any cannabis plant in the house of appellant. The testimony of IO or Seizing Officer was not of such a character as to form the sole basis of conviction without corroboration. When investigating officer himself says that the appellant was not present at the spot, it is very difficult to believe that the appellant was present when the seizure was made. Babu Kushwah (PW7) in para-2 of his cross-examination has specifically deposed that the bag was brought to him without seal. PW9 Gyaneshwar Sharma, Constable in para 4 of his evidence deposed that after keeping the cannabis plant in the bag, it was sealed on the spot but he could not able to explain that how, why and in what manner the seal was put. In any case, the testimony of prosecution is conflicting and discrepant on this point and it cannot be relied upon for holding that at any point of time just after the seizure of the plant of cannabis, it was sealed by IO. Therefore, appellant is entitled to be given the

benefit of doubt.

(9) Further contention of counsel for the appellant is that there is a delay in receipt of FSL report after recovery of contraband article by seizing officer. The prosecution failed to prove that the article which was sent to FSL is the same as the same was recovered from the possession of present appellant accused.

(10) Before deciding this appeal, the evidence of Seizing Officer Shivnath Singh Bais (PW15) is very important. As per his evidence on 13-01-2004 he was posted at Police Station Karera on the post of Assistant Sub-Inspector. He received a letter dated 07-01-2004 from District Excise Officer, HP Gupta

(PW8) and thereafter, he took up two independent witnesses, namely, Suresh (PW1) and Matadeen (PW2). By way of search warrant, he reached the house of appellant. Upon making search, one cannabis plant having height of 10 ft was found planted in the courtyard of house of the appellant. Search Panchnama was prepared vide Ex.P1. Identification of said plant was made by the witnesses vide Ex.P2. Contraband plant was seized vide seizure memo Ex.P4. An information was given to SDO(P) Karera vide Ex.P17. This witness in his evidence deposed that upon reaching the police station, an FIR was registered vide Ex.20. Spot map was prepared vide Ex.P5. During cross-examination, this witness admitted that letter/complaint which he had received from the District Excise Officer is not on record but the photocopy of same is annexed. In complaint/letter, besides the name of appellant Arun Sharma, name of other persons have been mentioned who were cultivating the cannabis plants but he had searched only the premises of the appellant. The boundary of the house was constructed by mud. Regarding ownership of the house of appellant, he had received a certificate Ex.P9 in which, the name of the appellant was not mentioned. This witness in his evidence further deposed that the appellant was not present on the spot and has self-explained that the appellant ran away. This witness denied that he got a secret information regarding plantation of cannabis plant by the present appellant.

(11) On going through evidence of aforesaid witnesses, especially from his examination and cross-examination, it is crystal clear that from the place where the cannabis plant was planted, was in the ownership of Smt. Kunjan Bai, wife of Late Ramdayal Sharma, the father of the appellant. The appellant was not present on the spot and has self-explained that he ran away. Complaint/letter regarding plantation of cannabis plant was not in original. The aforesaid witness

has not mentioned that when the said plant was seized and whether he has affixed seal on the packet of the sample as well as seizure memo. Upon weighting the contraband article, there is no mark of seal on seizure memo Ex.P4, but it is very essential to ascertain whether the seized contraband article was properly sealed so that, further no manipulation can be done. Besides this, two important seizure witnesses, namely, Suresh (PW1) and Matadeen (PW2) have not supported the aforesaid seizure memo. Further, the SDO(P) to whom an information was given by Seizing Officer/Investigating Officer has not been produced and examined by the prosecution in the trial Court during the course of trial.

(12) On going through the entire record, it is evident that the prosecution has utterly failed to prove that at the relevant time, any seizure was made and the signature of witnesses were obtained on the spot because the independent witnesses of seizure memo namely PW1 Suresh and PW2 Matadeen have not supported the prosecution story in any manner. The cannabis plant was sent in a bag for taking weight of same to the flour-mill of one Babu Kushwah (PW7) who in para 2 of his cross-examination has specifically deposed that at the time of bringing contraband article in a bag before him it was not sealed. It appears that the said cannabis plant was not sealed immediately after seizure thereof. Further, the prosecution has utterly failed to prove that as to whether the said plant was planted on the land or was in exclusive possession of the appellant. (13) In view of aforesaid discussion, the appeal succeeds and it is allowed accordingly. The impugned judgment of conviction and order of sentence passed by trial Court is hereby set aside and the appellant is acquitted of charge levelled against him. Appellant is on bail, therefore, his bail bonds and

surety bonds stand discharged. Amount of fine, if any, so deposited by appellant be refunded to him.

(14) A copy of this judgment along with record be sent to the trial Court for necessary information.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

MAHENDRA BARIK 2023.04.18 14:30:49 +05'30'