This acquittal appeal is preferred by the State of Gujarat against the judgment and order rendered by Sessions Court, Bhavnagar on 27th January, 1992 in Sessions Case No.125 of 1991 acquitting the respondent of the charges punishable under Sections 8 and 20 (b) of the Narcotic Drugs & Psychotropic Substances Act (“N.D.P.S. Act” for short). 2. As per prosecution case, the respondent had cultivated Ganja plants, 101 in number and weighing 60 Kilogram in the field of his ownership/possession. The field was used for cultivation of onion. The police received an envelope containing a map showing the place where Ganja cultivation had been carried out by the respondent and Police Sub Inspector raided the place and found 101 Ganja plants. The P.S.I. After drawing panchnama of scene of offence and seizing the contraband in presence of panchas and preparing the panchnama thereof, arrested the respondent and lodged a complaint with Talaja Police Station. However, the P.S.O. of the Talaja Police Station handed over the investigation to the HeadConstable.
3. One of the plants was sent to F.S.L. for examination and it was found that it was a “Ganja” plant, rest of the plants were not sent to the F.S.L.
4. The Trial Court found that there were discrepancies in the prosecution case and therefore, conviction cannot be recorded. The first defect that was noticed by the trial court was, noncompliance of mandatory provision of Section 42 of the N.D.P.S. Act, viz., that the information regarding the intimation having been received, was not sent by the investigating officer to his immediate superior, as required under Section 42 of the N.D.P.S. Act. The trial Court also found that there was a breach of mandatory provisions of Sections 52, 55 and 57 of the N.D.P.S. Act.
4.1. The trial Court found further that there are discrepancies in the evidence in respect of the field whereon the cultivation of “Ganja” was done and ultimately recorded acquittal.
5. We have heard Mr.Neeraj Soni, Ld. A.P.P., for the State and Mr.Ashish Dagli, Ld.Advocate appearing on behalf of the respondent.
6. Having examined the record and proceedings, we find that undisputedly the investigation was carried out by the HeadConstable although, at the time of raid P.S.I. was present. In this context, it would be appropriate to refer to provision contained in Notification No.G.H.L. 14 – N.D.S.108210577(I) M. dated 15/06/1981, which requires that such investigation will not be carried out by the Police Officer below the rank of P.S.I. Therefore, when the investigation is carried out by Head Constable, who is lower in rank to P.S.I., the investigation would be vitiated.
6.1. We also find that as per the prosecution case, the cultivation of “Ganja” was on the left bank of the canal as emerging from Exh.18, whereas as per the evidence of the panch witness and the investigating officer, they went on the right hand side bank and they found the cultivation in a field located on right hand side of the canal.
6.2. It is also required to be noted that, in the copy of the abstract of Village Form No.712, the cultivation was that of peanuts rather than onion, which is a case of the prosecution. Therefore, if the field was that of the respondent, there should have been cultivation of peanuts, unlike the cultivation of onion, which was found at the time of drawing of panchnama. Therefore, when there is discrepancy about the location of the field, whether it was on the left bank or right bank and there is a discrepancy of the official cultivation of the land viz., whether the crop of onion or peanuts, it cannot be said with certainty that there was cultivation of “Ganja” by respondent in the field allegedly owned by him. The trial Court can not be said to have been committed any error in recording acquittal, and Ld. A.P.P. has not shown us any reasons to interfere with the order of the trial Court and no illegality or impropriety is indicated to us.
7. The appeal, therefore, must fail and stands dismissed. The judgment and order rendered by Sessions Court, Bhavnagar on 27th January, 1992 in Sessions Case No.125 of 1991 acquitting the respondent of the charges punishable under Section 8 and 20 (b) of the N.D.P.S. Act is hereby confirmed.
(A.L.DAVE, J.) ..rathod (A.J.DESAI, J.)