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Judgment
This appeal under Section 378(III) of the Code of Criminal Procedure, 1973 has been filed by the appellant/State assailing the judgment and order of acquittal dated 30.12.2016 passed in Criminal Case No.08 of 2012 (State of M.P. vs. Ganesh Parte) by the learned Special Judge, N.D.P.S. Act, Seoni, District Seoni (M.P.), whereby the learned trial Court acquitted respondent/accused of the offence punishable under Sections 8(B)/20(a)(1) of the NDPS Act, 1985.
Briefly stated, the prosecution case is that on 14.10.2012, Sub-Inspector R.P. Rawat of Police Station Lakhnadon received secret information from an informant that the respondent/accused Ganesh Parte had cultivated cannabis plants and was storing cannabis in the maize field situated behind his house in Village Dhauria. The said information was recorded in the Roznamcha Sanha, where after two independent witnesses were summoned and a Panchnama of the informant's information was prepared (Ex. P/26). Thereafter, S.I., R.P. Rawat, accompanied by the police staff and Panch witnesses, proceeded to the spot and conducted a raid. Upon finding the respondent/accused present at the spot, a consent Panchnama was prepared after informing him of his legal rights. The respondent/accused first conducted the search of the police party and the Panch witnesses. Thereafter, the investigating officer searched the maize field allegedly belonging to and in the possession of the respondent/accused, where nine cannabis plants were found growing amidst the maize crop. The said plants were uprooted, identified as cannabis and seized in accordance with law. During the course of investigation, the respondent/accused was arrested and an intimation under Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was sent to the Sub-Divisional Magistrate, Lakhnadon. Statements of the witnesses were recorded, and Crime No. 349/2012 was registered at Police Station Lakhnadon.
Upon completion of the investigation, a charge-sheet was filed against the respondent/accused before the competent Court. The learned trial Court framed charges against the respondent/accused for the offence punishable under Section 8(b) read with Section 20(a)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The charges were read over and explained to the respondent/accused, who denied the same and claimed to be tried. The defence of the respondent/accused is one of complete denial and false implication.
In order to bring home the charges, the prosecution has examined as many as 10 witnesses namely Patwari Suresh Sahu (PW-1), Head Constable Jamna Prasad Baghel (PW-2), Constable Ramkumar (PW-3), Dilip Chourasiya (PW-4), Constable Ramlal Kumre (PW-5), S.D.M. Ku. Lata Pathak (PW-6), Ramkumar Chandrawanshi (PW-7), Narendra Jain (PW-8), S.D.O.P., P.S. Balre (PW-9) and Sub Inspector, R.P. Rawat (PW-10) and placed Ex.P/1 to P/37, the documents on record.
5 . Learned trial Court after recording the evidence of both the parties acquitted the present respondents/accused persons. Hence, this appeal.
Learned counsel appearing on behalf of the appellant/State contends that the prosecution has successfully established the guilt of the respondent/accused on the basis of the cogent and reliable testimony of the prosecution witnesses including the independent witness Ramkumar Chandrawanshi (PW-7) and the Investigating Officer, R.P. Rawat (PW-10), who conducted the entire search and seizure proceedings at the spot. It is further submitted that all the mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 were duly complied with in their letter and spirit during the course of search, seizure and the subsequent investigation. Learned counsel further contends that the learned trial Court adopted an unduly technical approach while appreciating the evidence on record and, on that basis, erroneously extended the benefit of doubt to the respondent/accused, resulting in an unwarranted order of acquittal. In such circumstances, it is submitted that the findings and observations recorded by the learned trial Court are perverse, erroneous and contrary to law. Accordingly, prayer is made that the present appeal be allowed, the impugned judgment of acquittal be set aside and the respondents/accused persons be convicted and sentenced in accordance with law.
I have heard the learned counsel for the appellant and perused the record meticulously.
The independent witness cited by the prosecution namely Ramkumar Chandrawanshi (PW-7) has not supported the prosecution case or the proceedings relating to the preparation of the seizure and other documents bearing his signatures. He has categorically deposed before the trial Court that the police had merely obtained his signatures in his capacity as a member of the Gram Suraksha Samiti and that no seizure or other proceedings were conducted in his presence. The other seizure witness namely Rewaram, has not been examined by the prosecution for reasons best known to it. Furthermore, both the aforesaid witnesses cannot be regarded as truly independent witnesses, as they are members of the Gram Suraksha Samiti. The prosecution has failed to explain as to why no independent and disinterested witness from the locality was associated with the seizure proceedings. The prosecution could have associated the Sarpanch, Patel, Kotwar or any other respectable resident of Village Dhuriya at the time of the alleged seizure and other proceedings conducted on the spot. This omission on the part of the prosecution assumes considerable significance in the facts and circumstances of the present case and casts a doubt on the credibility of the prosecution version.
Moreover, as is evident from Ex. P/31, Constable Ramkumar (PW-3) was deputed at 15:30 hours to procure the presence of two witnesses and within a span of merely 15 minutes i.e. at 15:45 hours, he returned along with both of them. The prosecution has not explained how, within such a short interval, the constable was able to locate, contact and bring both witnesses to the spot. It has also failed to disclose the place from where the said witnesses were secured. This unexplained circumstance assumes significance and creates a doubt regarding the genuineness and transparency of the proceedings allegedly conducted by the prosecution.
As far as the testimony of the police witnesses is concerned, Sub-Inspector R.P. Rawat (PW-10) is the principal prosecution witness. A perusal of the record reveals that Crime No. 349/2012 has been mentioned in the spot map (Ex. P/21), seizure memo (Ex. P/22) and arrest memo (Ex. P/23), although these documents were allegedly prepared prior to the registration of the FIR (Ex. P/30). In such circumstances, the presence of the crime number on documents purportedly prepared before the institution of the FIR gives rise to a serious doubt regarding their genuineness and the manner in which the investigation was conducted.
As regards the testimony of Narendra Jain (PW-8), who is stated to be a Hamraha witness, it is noteworthy that his signatures do not appear on any of the documents alleged to have been prepared at the spot. During his cross-examination, he admitted that the seized contraband (Article-A) did not bear the signature of the seizing officer, nor did it contain the signatures of any of the witnesses. He further admitted that the packet containing Article-A was not found to be completely sealed; rather, it was open from one side. This circumstance creates a serious doubt as to whether the seized material was deposited in the Malkhana of the concerned police station in a duly sealed and intact condition. Further, the Malkhana Muddemal Register (Ex. P/5) does not bear the signature of the officer who allegedly effected the seizure. Likewise, the signature of the Malkhana Moharrir, Jamna Prasad Baghel (PW-2), is also absent from the relevant entries in the register. Jamna Prasad Baghel (PW-2) has further admitted that the sealed packet was not resealed before it was deposited in the Malkhana of the police station. These omissions and discrepancies materially affect the sanctity of the chain of custody and cast a serious doubt on the integrity of the seized contraband throughout its safe custody. Further, Ex. P/16, Ex. P/17, Ex. P/18 and Ex. P/19 do not bear the signatures of the respondent/accused, thereby casting doubt on the authenticity of the proceedings.
Patwari Suresh Sahu (PW-1) deposed that he prepared the spot maps (Ex. P/1 and Ex. P/2) and submitted the Khasra Panchshala (Ex. P/3). However, he admitted that Ex. P/1 and Ex. P/2 were not prepared on the basis of the revenue records but at the instance of the witnesses. Significantly, witness to the documents Rewaram has not been examined by the prosecution, while Ramkumar Chandrawanshi (PW-7) has not supported the prosecution case. Consequently, the genuineness of Ex. P/1 and Ex. P/2 becomes doubtful. Suresh Sahu (PW-1) further admitted that the spot map relates to the Baadi and not to the agricultural field. Admittedly, only nine cannabis plants were seized and they were found growing amidst the maize crop. There is nothing on record to indicate that the respondent/accused had undertaken systematic cultivation of cannabis. Mere recovery of nine stray cannabis plants from a maize field, without any evidence of conscious and deliberate cultivation, is insufficient to establish the offence of cultivation under the NDPS Act.
There is nothing on record to suggest that the present case is not one of spontaneous or wild growth of cannabis. No evidence has been adduced to show that the respondent/accused was consciously cultivating the field or deliberately growing cannabis plants. Admittedly, only nine cannabis plants were seized and the possibility of their wild or natural growth cannot be ruled out. In this backdrop, the recovery of a few cannabis plants, by itself, is insufficient to establish conscious cultivation. Section 18(c) of the NDPS Act relates to the cultivation of cannabis. To establish the offence, the prosecution must prove by cogent and reliable evidence that the accused was engaged in or responsible for such cultivation. Mere recovery of cannabis, without proof of its cultivation by the accused, is insufficient to attract the said provision. A Coordinate Bench of this Court, in the case of Nanda Sakhaji Mal v. State of Madhya Pradesh, 2008 ILR (MP) 589 has held as under:-
"(5)ON account of the omission of Sunil Yadav (P. W. 4) to make a spot map or to produce the photographs, even if it is assumed that it was the field of the accused of which he was Bhumiswami and in possession, the question arises whether the Cannabis was cultivated by the accused. It is also not clear whether the Plants which were found were scattered or were in a row or in a bed so as give any indication that the Cannabis were grown by the accused. There is also nothing to suggest that it was not a case of spontaneous growth. There is also no evidence to suggest that anybody had noticed that the accused was cultivating the field and growing cannabis.
(6.) THE learned Sessions Judge has referred to the testimony of Sunil yadav (P. W. 4) Rameshwar (P. W. 1) and Rameshchandra (P. W. 5) with regard to the ownership and possession of the accused of the field concerned. Patwari madanlal (P. W. 2) has also been examined but Rameshwar and Rameshchandra have not supported the prosecution. It is, therefore, clear that even on the finding arrived at by the learned Sessions Judge with regard to the ownership and possession of the field, the quantity of Plants being only 90, and there being no evidence that they were systematically grown in the absence of spot map and the photographs, it is not unlikely that while the field had the Maize Plants, there may have been wild growth of the Cannabis. It is otherwise not comprehensible that if the accused wanted to grow Cannabis, he would confine the growth only to 90 Plants.
This Court in the case of Chhotelal Lodh vs. State of M.P., 2012 1 MPHT 512 has held as under:-
"10.On appraisal of the evidence of aforesaid witnesses, it transpires that there is no cogent and convincing evidence that appellant was in possession of the land in which cannabis plants were found growing. None of the independent witnesses said that the filed in which the plants were detected belonged to appellant or was in his possession. Even Head Master C.P. Yadav (P.W.5) did not say that he knew that the said bagiya was in possession of the appellant. According to him, when he reached the field on being called by the police officer, appellant was also called. Patwari (P.W.7) stated that the said field was recorded in the name of Rameshwar, but it was in possession of the appellant. He, however, in cross-examination, admitted that there was nothing in the record to show that appellant was in possession of the said field. He stated merely on the basis of statements made by other witnesses. However, he did not record any such statement in the Panchnama drawn by him. In these circumstances, the evidence about the fact that the field in which the plants were found growing was in possession of appellant, does not appear trustworthy. In my opinion, it was not established beyond doubt that the field belonged to appellant or he was in possession of the field from which the cannabis plants were seized. Apart from it, it is also to be noted that if only 2-3 plants of cannabis were found growing in an open field along with other vegetable plants, it cannot be presumed and held that the said plants were being cultivated. For holding a person cultivator of plants, it has to be established that he deliberately developed and maintained the plants by cultivation using agricultural techniques or he prepared the land or soil for growing such crops. In the absence of such evidence, it cannot be held that cannabis plants were being cultivated. Mere growing of stray cannabis plants in the field midst of number of other plants will not amount to cultivation of the said plants."
Survey No. 90 is jointly recorded in the names of three Bhumi Swamis namely Sevaram, Ganesh and Jamni. Therefore, it cannot be inferred that the said land was in the exclusive possession of the respondent/accused. Further, R.P. Rawat (PW-10) has deposed that the nine cannabis plants were found on only 0.03 R.A. of land comprised in Survey No.90; however, no investigation was conducted to ascertain in whose possession or occupation the said portion of land actually was. In the absence of any cogent evidence establishing the respondent's/accused exclusive possession over the specific portion of land from which the cannabis plants were seized, the prosecution has failed to prove this essential fact beyond reasonable doubt.
In the overall conspectus of the factual matrix, as discussed hereinabove, the view taken by the learned Trial Court appears to be both plausible and legally sustainable. The findings recorded by the learned Trial Court are based on a proper appreciation of the evidence available on record and do not suffer from any perversity, illegality or material irregularity warranting interference by the appellate Court. It is well-settled that an appellate Court ought not to interfere with an order of acquittal unless the findings recorded by the trial Court are perverse, manifestly erroneous or wholly unreasonable.
In H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
(Emphasis Supplied)
Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-
"42.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as :
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive — inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court."...
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground for interference with the findings of the trial Court.
2 1 . Ex. consequenti, while affirming the findings of acquittal of present respondents by the learned trial Court, the appeal being bereft of merit is hereby dismissed.