Criminal Appeal No. 827 of 2001 · High Court · 2007

BAIL SLIPThe Appellants herein / Accused viz. 1. Sathish 2. Murugesh weredirected were directed to be released on bail as per order of thisHonourable Court dated 28.9.2001 in Crl.MP.No.6236/01 inCrl.A.No.827/2001.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.827 of 20011. Sathish2. Murugesh ..Appellants/accused 1 and 2-vs-State rep.by Forest Range OfficerSirumugaiin O.R.No.45/2001.. Respondent/complainant This appeal is filed against the Judgment made in C.C.No.134 of2001 dated 24.7.2001 on the file of the Presiding Officer, Special Courtfor E.c/NDPS Act cases for the Districts of Coimbatore, Erode andNilgiris at Coimbatore.For appellants : Mr.C.S.Dhanasekaran For respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor. JUDGMENT This appeal has been preferred against the Judgment in C.C.No.134of 2001 on the file of the Presiding Officer, Special Court for E.C/NDPSAct cases for the Districts of Coimbatore, Erode and Nilgiris atCoimbatore.2. The case of the prosecution in brief is that on 4.3.2001 at about5.30p.m., when the complainant, the Forest Range Officer, SirumugaiForest, Sirumugai was indulged in raid at Bethikuttai Pirivu, NilgirisEastern Slope Kappukadu, Koothamandi Southern Beat near Thombu Pallamalong with his party found the accused cultivating ganja plants in theReserve Forest by way of ploughing the land, sowing seeds and irrigatingthrough hose pipes and thereby A1 and A2 have committed an offence underSection 21(d)(e) and (g) of Tamil Nadu Forest Act and Section 20(a) ofNDPS Act 1985. https://hcservices.ecourts.gov.in/hcservices/

3. On appearance of the accused, the learned Judge had furnishedcopies under Section 207 of Cr.P.C. and when the charges were framed underSection 21(d)(e) and(g) of Tamil Nadu Forest Act and Section 20(a) of theNDPS Act and when questioned the accused, pleaded not guilty.4. Before the trial Court, P.Ws 1 to 5 were examined. Exs P1 to P9were exhibited and M.Os 1 to 5 were marked.5. P.W.1 is the Forest Ranger of Sirumugai Forest Range. On24.3.2001 at about 5.30p.m., while, he was on his routine patrol dutyalong with Sub Inspector, Sivalingam and other forest officials, saw boththe accused at Thombupallam Slope at about 5.30p.m., have trespassed intothe forest area and after cleaning the forest have raised ganja plant andwere watering the same with the help of hosepipes in an area of 1 ½acres and the ganja plants were all two months old crops with the heightof 1 ½ feet. After complying with the mandatory provision under Section50 of the NDPS Act asking the accused whether they prepared for a searchto be conducted before the gazetted officer or before the JudicialMagistrate. Both the accused gave their consent for the search being madeby P.W.1 himself. Thereafter, he had recorded the submissions of A1 andA2 and under Ex P1 mahazar had recovered M.O1 Sickle, M.O.2 axe, M.O.3series Spades ,M.O.4 hose pipe and has also collected five ganja plantsunder "H" form ExP2 and has destroyed the remaining ganja plants by fire.Ex P3 is the statement of A1 and Ex P4 is the statement of A2. Thereafter,he has arrested both the accused and produced the accused before theJudicial Magistrate, Mettupalayam for remand on the following day. Out offive ganja plants, the seizure from the place of occurrence, one plant wassent for chemical analysis. Ex P5 is the letter of requisition of P.W.1to the Court for sending one of the Ganja Plants seized for chemicalanalysis. Ex P6 is the notification to show that the place of occurrenceis a Tamil Nadu Government's Forest lands. ExP7 is the sketch. Ex P8 isthe analyst's report.6a. P.W.2 has also accompanied with P.W.1 on 24.3.2001 in the raid.He would also corroborate the evidence of P.W.1 to the effect that at theplace of occurrence, he saw the accused working in the forest land.According to him, P.W.1 had recorded their statements Exs P3 and P4 fromA1 and A2 respectively. According to P.W.2, in an extent of 1 ½ acres,the accused have raised 900 ganja plants and at that time, when he saw theaccused, they were watering ganja plants through hosepipe and that fiveganja plants were seized from the place of occurrence under Form"H" whichis Ex P2. Ex P1 is the mahazar for the recovery of M.Os from the place ofoccurrence. Thereafter, the case was registered under O.R.No.45/2001against the accused.6b. P.W.3 is the Assistant Director of Regional Forensic ScienceLaboratory, Coimbatore. According to him, the plant measuring 120 cmsweighing 100gms connected with O.R.No.45/2001 was received in his office https://hcservices.ecourts.gov.in/hcservices/ for analysis accompanied by a letter No.470 dated 9.4.2001 from P.W.1 andafter analysis, the remaining samples were sent back to the Court and thechemical analysis was done by Analyst Banumathi.6c. P.W.4 is the Sub Inspector of Police, Hudco Police Station,Dharmapuri District. According to him, he had also accompanied with P.W.1at his request. He has also corroborated the evidence of P.W1 and P.W.2.He also speaks about the cultivation of ganja plants amounting to 1000 innumber by A1 and A2 and also speaks about the recovery of material objectsincluding five sample plants from the place of occurrence under Form" H".6d. P.W.5 is the Head Clerk of E.C.Court, Coimbatore. According toher,as per Ex P5 letter of requisition from P.W.1, she had sent the sampleplant for chemical examination through Mr.A.R.Subramaniam, Forest Guardand that Ex P8 is the report received from the Forensic ScienceLaboratory. 7.When incriminating circumstances under Section 313 Cr.P.C.were putto the accused, they deny their complicity with the crime. 8. The learned trial Judge after meticulously going through theevidence both oral and documentary adduced before him, has found that theaccused guilty under Section 21(d) and (g) of Tamil Nadu Forest Act andconvicted the accused under the above provisions of law and sentenced themto undergo four months rigorous imprisonment each and levied a fine ofRs.250/- each with default sentence. The learned Judge has also convictedthe accused under Section 20(a) of NDPS Act and sentenced them to undergoone year rigorous imprisonment each and a fine of Rs.2000/- each withdefault sentence. Aggrieved by the findings of the learned trial Judge,the accused have preferred this appeal.9. Now the point for consideration in this appeal is whether theconviction and sentence by the learned trial Judge against the accusedunder Section 21(d) and (g) of the Tamil Nadu Forest Act and Section 20(a) of NDPS Act is sustainable for the reasons stated in the memorandum ofappeal?10. Heard Mr.C.S.Dhanasekaran, learned counsel appearing for theappellant and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutorfor the respondent and considered their respective submissions.11. The Point:The learned counsel appearing for the appellant would focus the attentionof this Court mainly on the flaw committed by the prosecution in failureto prove that the sample plant sent for analysis to the Regional ForensicScience Laboratory, Coimbatore is not that the one seized from the placeof occurrence under Form"H". The learned counsel pointing out ExP5, theletter of requisition sent by P.W.1 Mylswamy, Forest Range Officer to theForensic Science Laboratory, Coimbatore and contended that the sample https://hcservices.ecourts.gov.in/hcservices/ noted under Ex P5 is" rooted Ganja plants with leaves net weight0.100kgs". But under Ex P8, report, the plant analysed was having a root,branches , leaves with florescence(fjph;) .Basing on the description ofthe sample plant as per Ex P8, the learned counsel would contend that theplant sent for analysis under Ex P8 is not the plant mentioned under Ex P5which has no florescence ((fjph;fs;) . In this regard, the learned counselwould point out that the evidence of P.W.1 in the cross examinationwherein P.W.1 would admit in categorical terms that the plants found inthe place of occurrence do not contain florescence ((fjph;fs;) . As in ExP2 Form"H",it is seen that five plants were seized and out of them onlyone plant was sent for chemical analysis. In Ex P2 Item No.6, it isstated that only one plant was separately packed for sending the same forchemical analysis. But that Item No.6, was written in different ink isadmitted by P.W.2 in the cross examination.12. So under such circumstances, it is highly doubtful whether theplant seized under Ex P1 mahazar was sent for chemical analysis Ex P5 andEx P8 report relates to the sample plant seized from the place ofoccurrence under Ex P1 mahazar. The learned counsel would further pointout that according to P.W.1 after taking samples under Ex P1, theremaining plants were destroyed by fire. But as per Section 48 of the NDPSAct, only under an order from the Gazetted Officer of the State Government, the ganja plants can be destroyed. But admittedly as per the evidence ofP.W.1, there was no order passed by the competent authority for thedestruction of the remaining plants. In the cross examination P.W.1 wouldadmit that he has not prepared any mahazar for the destruction of theremaining plants at the place of occurrence. P.W.2 also in the crossexamination would admit that there was no mahazar prepared for thedestruction of the remaining ganja plants at the place of occurrence andthe ash was also not seized after the destruction.13. The seizure was effected on 24.3.2001 but the material objectsseized including alleged ganja plants were reached the Court only on9.4.2004. It is the case of the prosecution that the accused havetrespassed in the forest land and cultivated ganja. If it is so, it is thebounden duty of the prosecution to show that the accused were found in theforest area. 14. In this regard, P.W.1 in his deposition in the cross examinationwould admit that there is no survey number for the place of occurrence andin the Government Gazettee, the place of occurrence has been declared as"a forest land". But he would admit that the said copy of the GovernmentGazettee was not produced but he has produced only Ex P7 Notification.Except the evidence of P.W.1 and ExP7, there is no evidence like VillageAdministrative Officer or Revenue Officials who will conversant with ExP7 notification to correlate that the place shown in Ex P8 sketch as theganja cultivated area to show that the area where the accused were https://hcservices.ecourts.gov.in/hcservices/ arrested as per the evidence of P.W.1 comes within the area marked asGanja cultivated land in Ex P8. So apart from the ipse dixit of PW1, theprosecution has not adduced any evidence to show that the place where A1and A2 were arrested by P.W.1 is a forest land and that they havetrespassed and cultivated ganja plants. Under such circumstances, itcannot be said that the offence under Section 21(d) and (g) of the TamilNadu Forest Act and Section 20(a) of NDPS Act has been proved beyond anyreasonable doubt. The doubt certainly enure to the benefit of the accused.15.In fine,the appeal is allowed and the conviction and sentenceagainst A1 and A2 under Section 21(d) and (g) of the Tamil Nadu Forest Actand Section 20(a) of NDPS Act in S.C.No.134 of 2001 on the file of theSpecial Court for E.C./NDPS Act cases for the Districts of Coimbatore,Erode and Nilgiris at Coimbatore is set aside and the accused areacquitted from all the charges levelled against them. Fine amount if anypaid, shall be refunded to them. The bail bond stands cancelled.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.SgTo1. The Presiding Officer,Special Court for E.C./NDPS Act cases for the Districts of Coimbatore, Erode and Nilgiris at Coimbatore2. The Public Prosecutor, High Court, Madras3. The Forest Range Officer, Sirumugai .4. The Superintendent ,Central Jail, Coimbatore.+ 1 CC To Mr. S.Silambanan, Advocate SR NO.46367Crl.A.No.827/2001gk[co]gp/2.8.