Prosecution Must Prove Landowner Cultivated Prohibited Opium Plants ; Bombay HC Upholds Acquittal In NDPS Case [Read Judgment]

The Bombay High Court a couple of weeks ago upheld the acquittal of a 64-year-old man accused of cultivating opium-poppy plants at fields owned by him in village Bavdhan, Wail Taluka in Satara district.

Division bench of Justice SS Shinde and Justice VG Bisht held that merely because the field in question where opium poppy plants were found were owned by the accused, it did not mean the field was exclusively controlled by him.

Case Background

According to the prosecution, Shivaji Rasal (Prosecution Witness 3), at the relevant time was attached to State Excise Office, Wai, when he received information that some agriculturists have cultivated opium-poppy plants in their fields at village Bavdhan. Rasal gave information to the Superintendent, State Excise, Satara and then on February 25, 1997 he along with panch witnesses and other staff members raided the field owned by the respondent accused.

Opium-poppy plants were found in the field. Out of those plants, two plants were uprooted and treated as sample plants and were duly sealed on the spot, remaining opium poppy plants were also seized separately on the spot.

Thereafter, Rasal lodged a report on the basis of which a case under Section 8 (b) read with Section 18 of the NDPS Act came to be registered against the accused and after necessary investigation the accused was charge-sheeted. The accused abjured his guilt and argued that he was being falsely implicated.

On May 17, 2000 the Sessions Judge, Satara acquitted the respondent-accused and State filed an appeal before the High Court.

Judgment

APP VB Konde Deshmukh appeared on behalf of the State and SS Borulkar appeared for the respondent accused.

After examining the statement given by Shivaji Rasal, Court noted-

"From the contents of FIR, we notice that the informant was given information about illegal cultivation of opium-poppy plants at village Bavdhan by some agriculturist. However, the evidence of P.W.3 Informant suggests that on 25/02/1997 he summoned two panch witnesses in the office of Superintendent, State Excise, Satara and gave them idea of proposed raid in respect of opium-poppy plants being grown in different areas of village Bavdhan. If this piece of evidence is read carefully then this would definitely mean that he was having personal knowledge of cultivation of opium-poppy plants in different parts of village Bavdhan. However, it is not so. As is pointed out by us, the source of information was somewhere else and having come to know from that source, which is apparent from the FIR, the Informant went to the Superintendent, State Excise and informed him accordingly."

Justice Bisht also noted that even though the information received by agriculturist was in writing, yet the same has not been produced in Court by the informant-

"When the information was reduced into writing, according to this witness, then why the said information was not filed along with the charge-sheet by the Informant - Investigating Officer is beyond our comprehension. Even, he does not throw light as to procedure and means applied by him while recording the said information and its importance. Therefore, there is no occasion for us to verify the correctness or otherwise of said information and also about its source. This is major lacuna which necessarily gives set-back to the theory of the prosecution."

Furthermore, the bench perused through the testimony of Pradeep Bhadalkar (PW 1), the panch witness and observed -

"PW1 stated in his cross examination that he is deposing for the fourth time in respect of similar raid and has acted as panch witness in total seven cases. He further stated that he is acquainted with Sub-Inspector Shivaji Rasal (P.W.3). He then stated that in his presence the information was not reduced into writing. According to him, he cannot tell even by approximation as to what crops were grown in that field, where the raid was carried out."

Court pointed out the clear indication of the sole witness's testimony (PW1) being compromised-

"It doesn't take much prescience to understand that this witness is a habitual panch witness, the reason being his acquaintance with the informant. What hits his testimony is his inability to tell about crops standing at the time of alleged raid."

Moreover, Bhadalkar's examination-in-chief shows that there were total 1580 opium-poppy plants in the field where the raid was carried out whereas the panchnama shows and as also the case of prosecution is that there were 1558 opium-poppy plants. So on this count also his testimony is questionable.

Finally, the Court said-

"Assuming for the sake of argument that opium-poppy plants were discovered in the field of accused. However, not only from the FIR but as also from evidence of P.W.1 panch witness and P.W.3 Informant it is discernible that at the relevant time the accused was not found in his field. There is a reason for that and we find that reason in the cross examination of P.W.3 Informant."

The informant (Rasal) stated that he learnt that the field owner was actually in service at Bombay. The respondent accused was called by giving a message through his relatives.

The bench determined that it was not the prosecution's case that the accused used to cultivate the field in question through servants or through his relatives.

"This witness could have ascertained that fact by recording the statements of adjoining land holders. Surprisingly, his cross examination shows that he did not record the statements of adjoining land holders. In this obtaining situation, merely because the accused was the owner of the field in question, it cannot be said, in the light of evidence of informant, that the field was exclusively or consciously controlled by him.

In order to prove the guilt, the prosecution must have proved that the accused had cultivated prohibited plants, namely, opium poppy plants at the time of raid. No proof is forthcoming from the prosecution to establish that the accused was in exclusive possession of field or he had actually cultivated opium-poppy plants although it was found in the field in question."

Observing that the prosecution had completely failed to prove its case, the High Court dismissed State's appeal.

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