RAMGOPAL Vs. STATE OF MP

JUDGEMENT

(1.) This appeal is preferred by the sole accused, who is convicted for commission of offence under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for two years R.I. and fine of Rs. 2,000/- and in default to undergo another term of three months.

(2.) As per prosecution case, Govindram Kukrreja was posted as A.S.I. at police station Shivpuri. He got an information from the informant that one person is standing near the hand-pump at Lalmati and he is trying to sell Ganja. If he is not arrested immediately he will escape from the spot. This information was recorded by Shri Kukreja in Rojnamcha Sanha No. 331/ 5.7.2002 (Ex.P-13). This document was prepared at 5-10 in the evening. Thereafter Mr. Kukreja went.on the spot shown by the informer alongwith the witnesses, Praveen and Sunil where they found one person with two polythene bags standing near the hand-pump. After seeing the police force, that person started running but the police chased him and caught him. He told his name as Ramgopal, S/o Gulab Singh Dhakad and he is at 45. On searching of the two polythene bags, it was found that one bag contained 1 kg. of Ganja and the other 900 gms. Thus, the accused was found with 1,900 kg. of Ganja with him, which is a small quantity of Ganja. The commercial quantity under the Act is 20kg. The police after preparation of the Panchanama and after investigation filed challan against the accused and the Sessions Court after framing the charge and appreciating the evidence convicted the accused, hence this appeal.

(3.) The contention of Shri A.S. Rathore, learned counsel appering on behalf of the appellant is that in the present case the conviction cannot be sustained as the Analyst's report of the substance is not proved by the prosecution. He also contended that the independent witnesses have not supported the prosecution story and, therefore, the conviction deserves to be set aside. In support of this contention, he relied on judgments of this High Court in the case of c 2000 (II) MPWN 10=2000 (1) C.Cr.J. 326 (M.P.) wherein this Court has held that in absence of the examination of Public Analyst the report of the Analyst is not admissible in evidence. In the present case, the Analyst is not examined by the prosecution, and therefore, there is no evidence on record to show that the contraband material which was seized from the present appellant was Ganja. Apart from that the panchanama Ex.P-9 shows that the substance which was seized from the present appellant was leaves of black and green colour. The definition of Ganja was defined under section 2 (iii) (b) of the Act and from the said definition Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. Thus, the seeds and leaves are excluded from the definition of Ganja. In the present case, only the leaves are recovered by the police.