TIKAM RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE appellant challenges his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the ND&PS Act').

(2.) THE prosecution case is that on 1.5.2011 PW10 ASI Yash Pal, HHG Hans Raj and HHG Rewat Ram of Police Station, Bhuntar had gone to Bhallan for destruction of opium poppy and cannabis plants. PW4 C. Sanjiv also joined the party. At village Dhekhli they found that there were around 5000 poppy plants in the area of two biswas land which had been intermingled with pea crop. The Investigating Officer PW10 ASI Yash Pal directed C.Sanjiv to get independent witness, who on search found none and thereafter PW4 C. Sanjiv Kumar and HHG Hans Raj were associated as witnesses in the proceedings. PW10 ASI Yash Pal conveyed information about cultivation of opium to Dy.S.P., who directed them to destroy the plants after retaining representative samples etc. Photographs of the cultivated poppy plants were taken, the sample was preserved and the case of the prosecution proceeded thereafter. During investigation, the tatima of land Ext.PW6/B, copy of jamabandi Ext.PW6/C with respect to Khasra No. 3390 which was the area on which the poppy was cultivated was obtained and demarcation report Ext.PW6/A was prepared which shows that the poppy was in fact cultivated on this Khasra number.

(3.) I notice that approach of the learned Court below cannot be commended for the reason that the offence is serious and some care and caution was required for the assessment of the evidence. The learned Court holds that Ext.PW6/C, which is the jamabandi, shows that the land is in joint possession of the parties and yet proceeded to convict the appellant on the basis of two affidavits Ext.PW7/A and Ext.PW8/A despite the fact that these witnesses were in relation of the accused and later on, they resiled from their statements. Be that as it may, without there being any substantive evidence that the accused was in exclusive possession of the land and he was responsible for cultivation of this crop, no conviction could have followed.