JAGDEO YADAV S/O LATE KULLI YADAV RESIDENT OF VILLAGE vs THE STATE OF BIHAR

Heard learned counsel for the appellant as well as learned Additional Public Prosecutor.

Sole appellant Jagdeo Yadav has been found guilty for an offence punishable under Section 20(a) of the NDPS Act whereupon sentenced to undergo R.I. for five years as well as to pay fine appertaining to Rs.25,000/- and in default thereof, to undergo R.I. for an additional period of imprisonment of a year vide judgment of conviction dated 21.07.2015 and order of sentence dated 22.07.2015 passed by Additional Sessions Judge, 1st, Jehanabad in NDPS Case No.4 of 2008 /44 of 2014.

Officer-in-charge of Jehanabad P.S. (O.P. Kalpa) recorded his own fardbeyan on 29.12.2008 divulging the fact that after getting proper instruction from Dy.S.P. regarding plantation of Ganja at village-Majhanpura, a raiding party was constituted and then, after making due Sanha Entry they left for Majhanpura where raid was conducted at the place of appellant, Jagdeo Yadav and during course of search, behind his Baithka 30 Ganja plaints varying different heights weighing approximately 100 kg. were found, uprooted and for that, search cum seizure list was prepared in presence of two villagers, namely, Madheshwar Yadav, Badhin Yadav. A copy of which was handed over to the appellant in token thereof, he put his signature.

Then thereafter returned to police station, along with accused, seized Ganja plants.

Jehanabad P.S. Case No.449/2008 was registered under Section 20 of the NDPS Act whereupon investigation commenced and after concluding the same, charge was submitted facilitating the trial recording finding of guilt against appellant, the subject matter of instant appeal.

Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, neither oral nor documentary evidence has been adduced at his end.

In order to substantiate its case, prosecution had examined altogether two PWs out of whom PW.1 is Awadhesh Prasad Sinha and PW.2 is Prabhakar Yadav as well as had also exhibited Ext.1-Seizure List, Ext.2- Written Report, Ext.2/1-Endorsement, Ext.3-Formal First Information Report Ext.3/1-Endorsement, Ext.4- FSL Report.

Although from the charge sheet it is evident that fiftteen persons have been named as a witness out of whom, as stated above only two witnesses have been examined and for that no explanation has been furnished at the end of prosecution. Now coming to evidence of respective PWs, it is evident that they have substantiated the case of the prosecution with regard to constitution of the raiding party, conduction of raid, seizure of thirty Ganja plants, preparation of seizure list and a copy having been handed over to the appellant/accused who endorsed the same by putting his signature.

However, when their evidences have been minutely gone through, it is evident that PW.1 in his examination-in-chief had stated that place lying west to the Baithka of Jagdeo Yadav was visited where thirty ganja plants were found, uprooted and seized while in cross-examination at para-7 had encircled the same by deposing that same was duly fenced up to the height of 5-6 feet having entrance from eastern side. None of them have stated that they have seen, found any sign identifying/disclosing presence of appellant over the land nor they have disclosed that they on their own trace out the identity of the land belonging to the appellant. Moreover, from para-2 of the seizure list, the situation became more worsen as, there happens to be complete silence with regard to identity of the land as, the same has been divulged as "VERNACULAR MATTER OMITTED"

True it is that in terms of Section 35, the culpable mental status of an accused is to be perceived and in likewise manner, as per Section 54 the presumption, though rebuttal is found against the accused but for that, the prosecution has to endeavour to such extent that the case on its face is found properly substantiated.

Had there been positive evidence on the score of the prosecution that the land from where thirty ganja plants were uprooted exclusively belonged to appellant Jagdeo Yadav then in that event, the presumption in terms of Section 54 and in likewise manner perception with regard to capable mental condition of appellant in terms of Section 35 of the Act would have been attracted against him more particularly, having his presence over the seizure list. That being so, the case of the prosecution is found deficient one on that very score, consequent thereupon, the finding so recorded by the learned lower court would not survive.

That being so, the judgment of conviction and sentence passed by the learned lower court is set aside. Consequent thereupon, appeal is allowed. Appellant is on bail, is being discharged from its liability.