Sukhbir Singh vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Sukhbir Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Sonepat dated 17.5.1994 and 19.5.1994 respectively. By virtue of the impugned judgment and the order of sentence the appellant was held guilty of the offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). The appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, he was to undergo further rigorous imprisonment for two years.

The relevant facts are that on 11.3.1992 SubInspector Sajjan Kumar of C.I.A. staff, Sonepat received secret information in his office at 7.00 A.M. that the appellant had cultivated poppy plants without any licence or permit in his fields. The same is at a distance of 4 killas from the G.T. road opposite village Rai. It was further to the effect that the crop had flowered and pods had erupted. In case the raid was conducted, the crop could be found. Acting on the said secret information ruqa was sent to the police station for registration of the case.

SI Sajjan Kumar accompanied by HC Hari Ram, Lehna Singh and other constables left for the spot. A wireless message was sent to the photographer to reach the spot. It was also sent to the Patwari of the area to reach the spot. Poppy crop was found standing in the fields of the appellant. The place was got photographed from ASI Om Parkash. SI Sajjan Kumar got harvested the poppy crop and took into possession six capsules and sealed them into a parcel with the seal of ''SKC''. The remaining poppy plants were sealed in a quilt cover with the seal. Both the parcels were taken into possession vide a memo that was prepared. It was attested by Vikram Singh, Patwari and HC Hari Ram. Specimen of the seals were taken. The seal after use was given to Vikram Singh, Patwari. SI Sajjan Kumar prepared the site plan. The Patwari made available copy of the jamabandi and it was taken into possession. The copy of the Aksh Shajra showed the poppy crop in the middle of killa No. 42/10.

While SI Sajjan Kumar was coming to the police station, he met Inspector Rohtas Singh, Officerincharge of the police station Rai. The sample and rest of the recovered articles were produced before Inspector Rohtas Singh. He affixed his seal ''RS'' on both the packets. SI Sajjan Kumar was directed to deposit the same in the Malkhana.

The appellant was arrested on the next day. Later the samples were sent to Forensic Science Laboratory, Madhuban. On receipt of the report from the Laboratory, challan as against the appellant was submitted.

The learned Additional Sessions Judge framed a charge against the appellant for the offence punishable under section 18 read with Section 8 of the Act. The appellant pleaded not guilty and claimed a trial.

In support of its case the prosecution produced six witnesses besides tendered the affidavits of the formal witnesses and the report of the Forensic Science Laboratory. After the prosecution completed its evidence, the statement of the accused was recorded under Section 313 Cr.P.C. The appellant denied the prosecution evidence and stated that Officerincharge of the police station wanted him to get traced some cases of contraband articles. The appellant refused to do so. Thereafter he was called to the police station and falsely implicated. He further stated that girdawari in his name is false and he did not cultivate any land in village Asawarpur. In defence he only placed on record copy of the judgment in Sessions Case No. 187 of 1993.

The learned trial court on appraisal of evidence concluded that it is established that appellant was in possession of killa No. 42/10 and that poppy crop had been harvested. It was of the appellant. The learned trial court thus returned the finding that the appellant had committed the offence punishable under Section 18 of the Act because he had no valid licence or permit. The contention that there was violation of Sections 42 and 18 of the Act was rejected. With these findings the impugned judgment and the order of sentence were passed.

Aggrieved by the same, the present appeal has been filed.

Learned counsel for the appellant argued that secret information had already been received to the effect that appellant has standing crop on killa No. 42/10 and still no attempt was made to get the orders of the Judicial Magistrate for attachment of the plants nor any such attempt was made to call reliable persons particularly when it was not the case that appellant was harvesting and destroying the crop. In his information there was no urgency in the matter.

Section 18 of the Act specifically prescribes that whosoever cultivates opium, poppy or produces, manufactures, possesses, sells or transports such articles shall be punished with rigorous imprisonment for a term which shall not be less than ten years. Section 48 of the Act reads to the following effect:

"48. Power of attachment of crop illegally cultivated. Any Metropolitan Magistrate, Judicial Magistrate of the first class or any Magistrate specifically empowered in this behalf by the State Government (or any officer of a gazetted rank empowered under Section 42) may order attachment of any opium poppy, cannabis plant of coca plant which he has reason to believe to have been illegally cultivated and while doing so may pass such order (including an order to destroy the crop) as he thinks fit."

The purpose of Section 48 of the Act referred to above is clear. It permits the Magistrate to attach any opium poppy, cannabis plant which he has reason to believe to have illegally cultivated. The Magistrate may pass such orders to destroy the crop. The learned counsel for the appellant is right when he asserts that when appellant was not available in the field and there was no immediate danger of the crop being destroyed, the Investigating Officer could certainly take an order of attachment of the crop or such other order for destruction of the same. In a given case it may not be necessary when exigencies or urgency of the matter so requires. This fact was totally ignored by the Investigating Officer and he himself harvested the entire crop. The procedure so adopted not only is illegal but also contrary to law.

Patwari of the area Vikram Singh appeared as PW1. He made a statement that on 11.3.1992 he went to killa No. 42/10. It belongs to appellant Sukhbir Singh. He added that in 3 marlas Poppy plants were growing. They were cut and harvested. He was crossexamined by the Public Prosecutor and has denied that remaining bulk of the poppy had been put in a quilt. He also denied that seal after use was given to him. During crossexamination by the appellant the witness deposed that he is not aware that father of the appellant died 20 years ago. He further deposed that Khasra Girdawari in the name of the appellant was made on 25.13.1992.

It is proved from aforesaid that though the incident pertain to 11.3.1992, the Khasra Girdawari was made in the name of the appellant after the date of the incident. There is no earlier Khasra Girdawari to show that appellant is not in possession or owner of the said land. The document came into being after the incident. It cannot be termed to have, thus, been established that appellant was in cultivating possession of the same.

Coupled with the said fact is the plea that no person from the public had been joined despite there being opportunity to do so. SI Sajjan Kumar PW2 admitted that there were persons in the neighbouring fields but added that they expressed unwillingness to join the investigation. No action was taken who refused to join. HC Hari Ram PW 3 also testified that there were persons in the neighbouring fields but his explanation was not correct that they were willing to join the police party. On the contrary he stated that they did not come to the spot. There was sufficient time to call a public witness so that proper identity of the plot could be established.

Keeping in view the jerks and jolts received by the prosecution case particularly with respect to Khasra Girdawari in order to establish that plot was in possession of the appellant and that it not being established that appellant in fact was the person cultivating the said harvest of poppy. The case cannot be held to have proved beyond all reasonable doubt. The appellant is entitled to the benefit of doubt.

For these reasons, the judgment and the order of sentence passed by the trial court are set aside. The appeal is accepted. The appellant is granted the benefit of doubt. He be released if not wanted in any other case.