CASE NO.: Appeal (crl.) 36 of 2004 PETITIONER: ALAKH RAM RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 08/01/2004 BENCH: K.G. BALAKRISHNAN & B.N. SRIKRISHNA JUDGMENT:
JUDGMENT
2004(1) SCR 394
The following Order of the Court was delivered :
Leave granted.
The appellant Alakh Ram was tried by the Additional Sessions Judge, Jhansi
for the offence punishable under Section 8 read with Section 20 of the NDPS
Act. He was found guilty under Section 20 and was sentenced to undergo
three years imprisonment. He filed an appeal before the High Court and by
the impugned Judgment, the High Court declined to interfere with the
conviction and sentence.
The case against the appellant was that the he planted Ganja in his Artieo
field and on 9.6.1992, the Station Officer Ravinder Kumar Mishra with
Constable. P.S. Katera visited the agricultural field belonging to the
appellant and seized 17 Ganja plants allegedly planted by the appellant.
Two witnesses were also present at the time of the recovery of these
plants. All the 17 plants were taken into custody and on chemical analysis,
it was proved that these plants were Ganja plants. The appellant on being
questioned under Section 313 Cr.P.C, stated that he had filed a criminal
complaint against four persons and the SDM had passed order in his favour
and that when he went to the police station to serve the order in his
favour and that when he went to the police station to serve the order
passed by the SDM, he was falsely implicated in the case.
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 happened 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.
In the instant case, one witness was examined to prove the nature of the
offence committed by the accused. It was PWI who accompanied the police
officers to the appellant’s field. The evidence given by PWI 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 were sown. 1 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.” 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 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.
In the result, we find appellant Alakh Ram not guilty of the offence under
Section 20 of the NDPS Act. His conviction and sentence is set aside and
his bail bonds would stand cancelled.
The appeal is allowed accordingly.