Thavriuya vs State Of Madhya Pradesh

Both these appeals have arisen out of the common judgment dated 23.11.2012 delivered by Special Judge, NDPS Badwani in Special Sessions Trial

No.02/2009, whereby the learned Trial Court has held the appellant guilty for the offence under Section 8(c) read with 20(2)(c) of Narcotic Drugs and

Psychotropic Substance Act, 1985 (hereinafter referred to as the Act, 1985) for having in their possession 21 Kgs Ganja (Cannabis) without any

license and cultivating 7 quintal crop of cannabis on the land under their possession and sentence them for 10 years rigorous imprisonment with fine of

Rs.1,00,000/- each and in default of payment of fine further to undergo two years rigorous imprisonment.

Facts of the case in short are that on 05.03.2009, the Station In-charge of Police Station Barla, B.L. Bhabhar (PW/2) received information that in

village Matiyamal, the accused Thavriya having cannabis in his house and he is cultivating cannabis too on the land situated near Nullah opposite to his

house. His servants Kamlesh and Anil are looking after his crop. Acting on this information, SHO completed the requisite pre raid formalities like

entry of information in Roznamcha, preparation of necessary memos (Panchnama), constitution of raid party and took all necessary paraphernalia,

called Panch witnesses and proceeded towards the place indicated in the information. They reached there after sunset at 19:15 hours, therefore,

stayed near the Nullah and raided the place in the next morning. Sons of Thavariya, Biyan Singh and Adar Singh and his servants Kamlesh and Anil

were found there but Thavariya managed to escape. They all revealed that the house and the crop belongs to Thavariya. The SHO Mr. Bhabhar

(PW/2) informed the accused persons about their right regarding search by gazetted officer and after obtaining their consent, searched the house and

farm. He recovered 21 Kgs cannabis from the house and found that crop of cannabis was standing on about one and ½ Acres land and was at

flowering and seeds stage. He got the photographs clicked, seized the cannabis and cannabis plants, took out samples, prepared necessary memos and

recorded statements of the accused persons. Sons of Thavariya informed him that the house and land belongs to their father. After completing all

requisite proceedings on the spot they came back at police station, scribed FIR, arrested the accused persons, sent intimation to the concerning

authorities, deposited the seized cannabis and its crop and further investigated the case. During investigation they obtained revenue records and

information from forest officials regarding title and possession of the house and land. After completing investigation, the police filed charge-sheet.

The Charge-sheet was filed against 5 accused persons out of which Lala @ Bhadi and Khuma were acquitted by the learned Trial Court while the

appellants were convicted and sentenced as stated in para no.1 above.

The appellants have preferred both these appeals on the grounds that the judgment and order of the learned Trial Court is contrary to the law and

the facts on record. The learned Trial Court has not considered that the house from the ganja is seized is a cattle shed and an open place; anybody

can move in or out easily, therefore, exclusive possession over the substance seized cannot be held proved. Similarly the title and possession over the

land, where the cannabis plant were standing could not be established. The sole independent witness velchand has not supported the case of the

prosecution, even then the learned Trial Court has convicted the appellants. In the absence of exclusive possession over the place or the land from

where the cannabis or cannabis plant were seized, the appellants cannot be held guilty. Therefore, quashing of the judgment is prayed for.

Learned Public Prosecutor has opposed the prayer. Supporting the judgment of the learned Trial Court, he submitted that the Investigating Officer

SHO B.L. Bhabhar (PW/02) has proved the seizure and his statement is well supported by the other witnesses and corroborated by the documents

prepared before, on or after the raid. The prosecution has successfully proved involvement of the appellants in the alleged crime, therefore, the

learned trial Court has rightly convicted them. He prayed for dismissal of the appeals.

In the present case, most important thing is proof of title and possession over the house and the land from where the cannabis or cannabis plant

were recovered and I have no hesitation to say that the prosecution has miserably failed to establish both of them.

According to the prosecution case itself, the crop was standing over the land bearing survey no. 262, which belongs to Khumsingh, who is acquitted

by the learned trial Court and the acquittal is not challenged by the prosecution.

Other land where the police claimed that the cannabis crop was standing, according to the documents filed by the prosecution itself, belongs to the

forest department. Spot map Ex.P/34 prepared by the police during investigation as well as memo Ex.P/43 prepared by Patwari are the only

documents; which the prosecution could produce. Ex.P/43 reads thus:-

“ iapukek ge iapx.k mifLFkr ;g iapukek fy[kk nsrs ,slk fd vkt fnukad 6@3@09 dk Jh lq[kyky lksyadh iVokjh pkSdhnkj xzke ekfV;kesy vk;sA xkze

ekfV;kesy esa Jh [kqeflax firk 'kadj tkfr ckjsyk losZ 262 jdck 494@2000 yxku 5-00 okyh Hkwfe jktLo jsdkMZ esa ntZ dkxtkr gSA mDr d`f""k Hkwfe

ou O;oLFkkiu ls Hkwfe 2000 jktLo foHkkx gLrkafjr gqbz gSA mijk/k dzekad 40@9 /kkjk 8@20Â fnukad 5@3@09 rFkk xzke ekfV;kesy esa [kljk

ua- 261 Fkkofj;k firk gksydj;k ekudj ds jgoklh edku fLFkr gSA rFkk [kljk 262 esa eknd inkFkZ xkatk dh Qly cksbZ gqbZ gSA rFkk ekSds ij Qly cksbZ

x;h gSA vr% ;g iapukek iapks ds le{k rS;kj fd;k x;k gSAâ€​

Thus, it is clear that this memo nowhere states that the appellants were having possession over the land where the cannabis plants were found

standing. Even spot map (Ex.P/34) prepared by the Investigating Officer B.L. Bhabhar (PW-2) himself does not show the possession over the land

belongs to any of the appellant.

So far as, title of the land is concerned, the situation is more worst as not a single document showing title over the land or over the house is

produced by the prosecution.

The learned Public Prosecutor took me to the Sehmati Punchanama (Consent Memo) Ex.P/40 and a letter sent by Patwari to the Tehsildar

Ex/P/40 (wrongly marked), copy of Kishtbandi Khatoni Ex.P/41, the trace map prepared by the Patwari Ex.P/42, but I am afraid, none of them shows

the title or the possession of the appellants over the house or the land from where the cannabis or the cannabis plants were recovered and seized by

the police. It is mentioned in both these documents (Ex.P/40 & 43) that the cannabis crop was standing over survery No.262 or over three pieces of

land opposite to the house of the appellants. There is no dispute that Survey No.262 belongs to Khum Singh, who is later acquitted by the learned trial

Court and other land belongs to the forest department and not to the appellants.

It is mentioned in Sehmati Punchanama Ex.P/40 that the appellants Biyan Singh and Aadar Singh, who are sons of the appellant Thavariya

consented that they are ready to give search to the police “of their house and landâ€, but this mention only, in the absence of any supporting

documents; which were easily available but neither collected nor produced, is not sufficient to show the title or possession of the appellants.

Statements of the prosecution witnesses examined before the learned trial Court are commensurate to the status appeared in the documents.

Investigation Officer, B.L. Bhabhar PW-2 and Patwari Sukhlal PW-5 has stated the same thing which is mentioned in the documents discussed in last

preceding paras. In their cross-examination they both have admitted that they have not inquired much about the title of the land or the house. SHO

B.L. Bhabhar PW/2 in para no.43 onwards of his cross examination as admitted that he has never collected any information regarding title or

possession of the land or the house. He neither inquired from the Gram Panchayat nor from any independent persons of Village Matiyamal that the

house belongs to whom. He further admitted that according to Panchnama Exb.P/40 and P/43, the appellant Thavriya has no land in the area

mentioned in these Panchnamas. Similar is the statement of Head Constable Surpal PW-01.

In his attempt to collect evidence regarding title or possession, I.O. got prepared the spot map from the forest officer of Tehsil Barla, but, neither

this statement nor spot map got prepared by him are helpful to generate desired result. This witness has admitted even in his examination-inchief that

he does not know as to who is in possession of the land given to Thavriya on lease. It is also not clear from his statement that which land was given to

Thavriya on lease. In his cross-examination also he has admitted that he had not collected any record that the land for which he prepared spot map

belongs to Thavriya. He has admitted that such record is available in the forest department, but the prosecution did not take pain to collect or produce

such record before the trial Court and to get it called by the Court itself.

Patwari Sukhlal PW-5 has stated that the land situated opposite to the house of Thavriya was being ploughed by Thavriya, but in the absence of

any revenue record or supporting document, this statement can not be taken as gospel truth and this one line statement can not be made basis for the

conviction of such heinous crime.

So far as the house of the appellants is concerned, the Patwari Sukhlal PW-5 has stated that this house is situated on the land bearing Survey

No.261. The fact is also mentioned in letter Ex.P/40 and Punchnama Ex.P/43 and this is not disputed by the appellants that the land bearing Survey

No.261 belongs to Thavriya. Sukhlal PW-5 has admitted in his cross-examination that there are 4-5 houses and a school exists on Survey No.261.

Head Constable, Surpal PW-01, who accompanied the SHO at the time of raid has admitted in para nos.8 and 9 of his cross-examination that 5-6

houses exists on the land belonging to the appellant Thavriya and his brothers. I.O. B.L. Bhabar PW-2 and Patwari Sukhlal PW-5 have admitted that

they had not inquired that how many people, other than the appellants, were residing in the house. HC Surpal PW-1 has admitted that apart from the

appellants, many other people reside in this house. He further admitted that many relatives of Thavaria like brother in Law (Saala), Son in Law

(Jamai), servants Kamlesh and Anil etc. are permanently residing in this house and cultivating there.

Admittedly the appellant Thavariya was not found on the spot and statement of SHO B.L. Bhabhar that he fled away from the spot is not

convincing.

Head Constable Surpal (PW/1) has admitted that the house from where the cannabis was seized is actually not a house but is a cattle shed, has

kavelu roof, no rooms or partition, no doors and no walls and it is open from three sides. Anybody can enter into or come out from this house without

any obstruction. In such circumstances, exclusive possession of the appellants over the cannabis seized from the house cannot be assumed.

In paragraph Nos. 30,31,33 of Shahaji Mattapattil Vs. State of Maharashtra reported in 2009 SCC Online Bom 879 the Hon'ble Supreme Court

has stated that :-

30] In this case it was the duty of theprosecution to find out who was in real possession of the said land. He might have been the owner or the person

who had taken the said field on lease. Then if the appellants would have been employed by him for the illegal act of cultivating cannabis plants, they

would have been liable. None of the villagers who might have been witnessing labourers in the said field since beginning are examined. Why Rushi

Nale maintained silence for pretty long period is not explained. Same is the case of Sattyam. Even Talathi Kishor Tiple P.W. 4 might have been to

spot earlier to the raid but he also did not take any action. As such the case of the prosecution against the appellants appears to be of thick suspicion,

but suspicion howsoever strong, can not take place of proof. I have already pointed out above that the property in this case was not produced before

the trial court, therefore, in view of the judgment of the Apex Court cited above, the appellants can not be convicted.

31] In such cases ownership of the land or land beingin possession of accused has to be established. As stated above, this fact is not established.

Charge against the appellant is for cultivating cannabis plants, and for possession of ganja seeds. Admittedly, ganja seeds were found from the tin

shed. The exclusive possession of the said shed can not be said to be that of all the appellants, unless the same is established. No doubt it is alleged

that these appellants were residing in the same hut. But fact remains that there is no clinching evidence on record about their actual residence in the

said hut. Thus possession of Ganja seeds cannot be attributed to any of the accused.

33] Taking over all view of the matter, in my opinion, though the allegations are serious, evidence is shaky and the same does not positively point out

the guilt of all the accused or any of them. Suspicion howsoever strong cannot take place of proof. As such the order of conviction and sentence

passed by trial court can not be upheld. Order of remand is also not warranted. The appeal therefore, needs to be allowed. The same is allowed.

Para No.9 of Naresh Kumar Alias Nitu Vs. State of Himachal Pradesh reported in (2017) 15 SCC 684 is also relevant in the present case, which

reads thus:-

The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are

rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with

reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have

been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not

be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417, observing:-

“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of

proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the

guilt of the accused on the prosecution is “beyond all reasonable doubt†but it is “preponderance of probability†on the accused. If the

prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband

by the accused cannot be said to have been established.

With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to

shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the

element of possession will have to be proved beyond reasonable doubt.â€​

The Hon'ble Supreme Court in Para Nos.11 to 12 in the case of Om Prakash @ Baba Vs. State of Rajasthan reported in (2009) 10 SCC 632 has

held that

A bare perusal of the evidence aforementionedwould reveal that the ownership and possession of the house and the place of recovery is

uncertain. As a matter of Fact PW-3 has categorical stated that the house from where the recovery had been made belonged to one Durga Bhanji

and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further

required to show that the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of

his brothers, their children and their parents were living therein.

Admittedly, here is no evidence as to the appellants exclusive possession. In this situation we find that the judgment cited by the lenared counsel ,

that is, Mohd. A Khan case fully suports the plea on behalf of the appellants. We observe that in addition to the ocular evidence, the prosecution had

also put on record a document pertraining to the ownership of the house, but this Court nevertheless held as under :-

9... The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by

producing documents from the Registrar's office concerned or by examining the neighbours. No statement has been made by the prosecution that in

spite of the efforts taken by them, they could not produce the documents or examine the neighbours to prove the ownership of the appellant relating to

the flat in question. It is relevant to note here that two independent witnesses attested the Panchnama. Only one of them was examined as PW-5 who

did not support the prosecution versions and therefore, was treated as hostile. In this case except the retracted statements of the appellant to connect

the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned special judge extracted in the

beginning and confirmed by the High Court.

To our mind, the aforequoted observations clearly support Mr. Bhati's argument we find that there is no evidence on record to prove the appellant's

ownership and possession of the premises and the contraband in question.

The appeal is accordingly allowed, the judgmentof the courts below are set aside and the appellant acquitted. He is said to be in custody. He is

directed to be released forthwith.

In State of Punjab Vs. Balkar Singh And Another reported in (2004) 3 SCC 582 the Hon'ble Apex Court confirmed the acquittal of the accused in

absence of evidence of conscious possession of the accused over the substance seized.

Thus, it is clear that neither from the statements of the witnesses nor from any document produced by the prosecution, title or possession of the

appellants over the land or over the house from where the cannabis or cannabis crop have been seized is established. The evidence produced by the

prosecution falls short to establish both these facts. Further exclusive possession over the cannabis recovered from the house is also not established.

In the absences of any convincing evidence, the appellants cannot be convicted for the offence charged with. The learned Trial Court has committed

error in not appreciating the evidence in its right perspective, therefore, conclusion arrived at by the learned Trial Court are not sustainable in the eyes

of law and the same are set aside. The appellants are acquitted from the charges under Sections 8(c) read with 20(2)(c) of NDPS Act, 1985. Fine

amount, if deposited, be refunded back to them. They be set at liberty forthwith, if not required in any other case.

Order of the learned Trial Court regarding disposal of case property is hereby confirmed.