Nafr High Court
Case Details
1 / 12 2025:CGHC:48618 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 938 of 2014 Balak Ram, S/o Mukund Manjhi, Aged About 60 Years, R/o village Baturakachar Thana Pathalgaon, Distt. Jashpur, Chhattisgarh versus ... Appellant State Of Chhattisgarh Through The Police Station - Pathalgaon, District - Jashpur, Chhattisgarh ... Respondent For Appellant : Mr. N.K. Malviya, Advocate. For Respondent/State : Ms. Sunita Sahu, P.L. Hon'ble Smt. Justice Rajani Dubey, J (Judgment on Board) 22.09.2025 1. The appellant in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 04.09.2014 passed by the Special Judge (NDPS Act), 2 / 12 Jashpur, District Jashpur (C.G.) in Special Case No.06/2014, whereby the appellant stands convicted and sentenced as under: Conviction Sentence Under Section 20(A)(i) of RI for 03 years and to pay Narcotic Drugs and fine of Rs.5,000/-, in default Psychotropic Substances of payment of fine amount Act, 1985. to further undergo additional R.I. for 02 months. 2. Case of the prosecution, in brief, is that on 04.05.2014, Assistant Sub-Inspector Dinesh Rajwade of Police Station Pathalgaon along with staff Assistant Sub-Inspector Dakeshwar Singh, Constable No. 351, 709, lady constable 608 had gone to search the warrantee in village Baturakachar, where an secret information was received from informer that accused/appellant Balak Ram Manjhi had grown/sowed cannabis plants in kitchen garden of his house. Thereafter, a panchanama of secret information was prepared vide Ex.P.-3 and sent to the Sub-Divisional Officer, Pathalgaon. Assistant Sub-Inspector Dakeshwar Singh along with staff reached the spot and a notice Ex.P.-2 was given to witnesses Manohar and Raghuram regarding their presence. The accused/appellant was given notice under Section 50 of the N.D.P.S. Act vide Ex.P-4 regarding the 3 / 12 search of the kitchen garden of his house. His consent was obtained vide Ex.P-5 in which the accused gave his consent for the search of kitchen garden of his house. Thereafter, the police personnel were got searched by the accused/appellant and search panchanama of police was prepared vide Ex.P-6 The kitchen garden of accused/appellant was searched in presence of the witnesses, where 30 plants of contraband article ganja were found in the kitchen garden of the accused/appellant. In this regard, search panchnama was prepared vide Ex.P-7. The ganja plants were uprooted in the presence of witnesses and panchnama (Ex. P.-11) and drug identification panchnama (Ex. P.-10) were prepared. Physical verification of the electronic weighing scale was conducted vide Ex.P.- 12 and a weighing panchnama (Ex.P.-13) was prepared. The narcotic substance was weighed. Upon weighing, the ganja plants were found to weight 1.360 kilogram. The ganja plants were sealed vide Ex. P.-15. The ganja plants were seized in the presence of witnesses vide seizure memo Ex.P-9. 100 grams of soil was seized from the spot vide Ex.P.-17. Dehati nalishi was recorded at the spot vide Ex.P-
Legal Reasoning
24. An FIR was registered at Police Station Patthalgaon vide Ex.p-26. The family members of the acused/appellant were informed about his arrest and he was arrested vide Ex.P-18. 4 / 12 The seized ganja plants were handed over to the In-charge Maalkhana fot keepign it in maalkhana, and supurdnama receipt was obtained vide Ex.P-25. The Patwari prepared spot map vide Ex.P-20, and a panchnama was accordingly prepared vide Ex.P-21. The seized plants of ganja were sent for its chemical examination to FSL, Raipur, and a report of FSL was obtained vide Ex.p-28, accoridng to which, the plants were found to be ganja. The statements of the witnesses were recorded and after completion of investigation, the charge sheet was filed against the appellant for the same offence as in the FIR followed by charge under Sections 20 (a) (i) of the N.D.P.S. Act. The appellant however denied the charge and pleaded for trial. 3. In order to prove its case, the prosecution has examined as many as 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure where he pleaded his innocence and false implication in the same. He however did not examine anyone in his defence. 4. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment. Hence, this appeal. 5.
Legal Reasoning
Learned counsel for the appellant submits that the judgment 5 / 12 and sentenced passed by the learned trial Court is bad, illegal, contrary to the facts and law. The learned trial Court has convicted the appellant only on the basis of conjecture and surmises, while the witnesses were neither appearing natural nor inspiring confidence and the learned trial Court also ignored the material contradiction and omission with the case diary statements, therefore, conviction of the appellant by the learned trial Court is erroneous. Learned counsel further submits that the learned trail Court has wrongly appreciated the facts and circumstances of the case, particularly the kitchen garden of the appellant which was not in his sole possession and it was easily accessible to the other villagers also. So, the impugned judgment is liable to be set aside. 6. On the other hand, learned State counsel supports the judgment impugned to be just and proper and submits that the judgment impugned being based on just and proper appraisal of the evidence on record, and that all the mandatory provisions of the NDPS Act were duly complied with while undertaking the search and seizure formalities, therefore the conviction and sentence recorded in the judgment impugned cannot be said to suffer from any legal law warranting any interference in this appeal. 6 / 12 7. I have heard learned counsel for the parties and perused the material available on record. 8. It is apparent from the record of the learned trial Court that the learned trial Court framed charge under Section 20 (a) (1) of the NDPS Act against the appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted and sentenced the appellant accordingly. According to the prosecution, the accused/appellant had sowed/planted 30 plants of cannabis in his kitchen garden/field. 9. Manohar (PW-1) has admitted his signature on notice Ex.P- 1 given to appellant, notice Ex.P-2 given to him, secret panchanama (Ex.P-3), panchanama regarding not obtaining search warrant Ex.P-4, consent panchanama (Ex.P-5), panchanama of search of police (Ex.P-6), search memo (Ex.P-7), notice of search of appellant (Ex.P-8), seizure memo (Ex.P-9) and identification panchanama (Ex.P-10). This witness has stated that all plants of cannabis were uprooted in his presence and at that time Raghuram (PW-9) and the appellant were also present there & has admitted his signature on uprooted panchanama (Ex.P-11). He has also stated that the uprooted plants of cannabis were weighed by Roop Singh (PW-2) and admitted his signature on panchanama of physical verification of scale (Ex.P-12), 7 / 12 weighment panchanama (Ex.P-13), mixing panchanama (Ex.P-14), sample panchanama (Ex.P-15), police search panchanama (Ex.P-16), property seizure memo (Ex.P-17), arrest memo (Ex.P-18), crime detail form (Ex.P-19), nazri naksha (Ex.P-20) and panchanama (Ex.P-21). The prosecution has declared this witness hostile on some points and cross-examined him but he stated that he did not know whether the accused/appellant accorded his consent for search of kitchen garden or not. He also did not know whether after weighment the plants of ganja was found to be 1.300 kilogram in weight or not. In para 16 of his cross- examination, he has admitted that appellant’s father name is Mukund Ram, who was aged around 80-85 year & Hemant, Jitendra, Mukund Ram, Mamta Bai and Sonaamati Bai were also residing in the house of accused/appellant. This witness has also admitted in para 18 of his cross- examination that Mukund Ram and his brothers have joint property in village Baturakachar and no partition was taken place. This witness has admitted this suggestion of defence that police personnel had called him and Raghuram to police station with regard to ganja and got his and Raghuram’s signature on all the documents. 10. Roop Singh (PW-2) has stated that on 04.05.2014, he had gone to the house of accused/appellant with weighing scale 8 / 12 on call being made by Thana Incharge, Patthalgaon, and in this regard he had receive a notice vide Ex.P-22, in which he admitted his signature on ‘A to A’ part. He has also stated that he weighed the plants of ganja which was found to be 1.360 kilogram vide Ex.P-23. This witness has denied this suggestion that police had called him in police station. 11. Yogesh Patel (PW-3) is the Patwari who prepared spot map vide Ex.p-20 and panchanama vide Ex.P-21. In cross- examination, he has admitted this suggestion of defence that in nazri naksha he has not mentioned that the place of incident is situated on which khasra number and who is the land owner. 12. Dakeshwar Singh (PW-4), Assistant Sub Inspector and Sunil Kumar Sahu (PW-5), Constable, have stated that they went with police party and seized 30 plants of ganja from the kitchen garden of the accused/appellant. 13. Dinesh Rajwade (PW-6), Asstt. Sub Inspector and Investigating Officer, has stated that upon receiving the secret information, he searched the kitchen garden of the appellant and prepared all documents from Ex.P-1 to Ex.P- 21. In para 17 of his cross-examination, he admitted this suggestion of defende that he had not inquired/investigated that in whose name the kitchen garden and house was recorded in revenue record. He has also admitted that the 9 / 12 name of father of appellant is Mukundram and he is alive. He has also admitted this suggestion of defence in para 24 that various types of plants grow naturally in the fields and garden. He is not aware that a seed of ganja plant lying on the ground will also sprout a plant. 14. The Hon’ble Apex Court in the matter of Alakh Ram Vs. State of U.P., reported in 2004 (1) SCC 766 observed and held in para 5 and 6 as under :- “5. In the instant case, one witness was examined to prove the nature of the offence committed by the accused. It was PW 1 who accompanied the police officers to the appellant’s field. The evidence given by PW 1 is to the following effect :- “Alakh Ram is a farmer. I do not know the number of those fields. I do not know the number of that field in which Ganja was sown. I do not know as to who had cultivated the plants of Ganja. That field is irrigated and Madho also works in that field. Neither have I seen anyone planting the Ganja plants nor do I know when was it planted.” 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 10 / 12 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 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 the property, it cannot be said that these plants had been the result of cultivation. They may have been 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." 15. In the light of above dicta of Hon’ble Apex Court, in the present case also, it is vivid that though the seizer witnesses 11 / 12 and Investigating Officer have state about 30 plants of cannabis and as per the prosecution, 30 plants of cannabis were seized from the kitchen garden/field of the accused/appellant but the prosecution has utterly failed to prove and and establish that the field/kitchen garden where plants of cannabis were planted, were in exclusive possession of the accused/appellant only and he had exclusive right/title over the property, from which the cannabis plants were recovered. There is no evidence on record to show that the accused/appellant cultivated/sowed these plants of cannabis. The prosecution must have foreseen that the plants have been planted/cultivated by the accused/appellant, which they have miserably failed. They must have also ruled out that the said cannabis plants did not sprout out by natural process, as such, the learned trial Court did not appreciate these evidence properly and recorded wrong and perverse finding of conviction. As such, the judgment impugned deserves to be set aside.
Decision
16. For the foregoing reasons, this appeal is allowed and the impugned judgment of conviction and order of sentence is set aside. The appellant is acquitted from the charge under Section 20(a)(1) of the NDPS Act. The appellant is in jail. He be set at liberty forthwith if no longer required in any other criminal case. 12 / 12 17. Keeping in view the provisions of Section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the Court concerned forthwith, which shall be effective for a period fo six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 18. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE