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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUNIL DUTTA MISHRA, J.
Criminal Appeal (SJ) No.474 of 2006
(12.8.2025)
Vijay Mahto @ Bijay Mahto ... Appellant
vs.
State of Bihar ... Respondents
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 18 and 35 – Criminal Procedure Code, 1973 – Sections 374 (2) – Recovery of Opium plants – Conviction and sentence – For holding a person liable for illegal cultivation of opium poppy, it must be proved that cultivation was done by accused or under his control – Mere presence of plants on land is not enough unless it is established that accused was in possession or had dominion over the land – Initial burden to prove that accused had conscious possession or ownership of a particular property/land where from there has been alleged recovery of substances prohibited under N.D.P.S. Act lies on prosecution – Statements of Court Witnesses contradict each other – Prosecution has failed to establish, beyond reasonable doubt, ownership and possession of land in question by accused – No credible evidence has been brought on record to prove that accused had any direct ownership or possession over the land – Seizure list witnesses have not supported prosecution case – No independent witnesses have supported prosecution case – There are serious infirmities and inconsistencies in prosecution case which go to root of matter – Prosecution case is riddled with material contradictions, procedural irregularities, and lack of substantive evidence linking accused directly with alleged offence – Benefit of doubt must go to accused – Judgment/order of conviction and sentence set aside – Appeal allowed. (Paras 22, 27, 28, 29, 33, 36, 38 to 41)
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 53 – Criminal Procedure Code, 1973 – Section 173 – There is no specific bar against conducting investigation by informant/complainant himself – Merely because complainant conducted investigation that would not be sufficient to cast doubt on entire prosecution version – Only in a case where accused has been able to establish and prove bias and or/unfair investigation by informant-cum-investigator and case of prosecution is merely based upon deposition of informant-cum-investigator, such aspect of matter can certainly be given due weightage while assessing evidence on record. (Para 32)
Sunil Dutta Mishra, J. – Heard learned counsel for the appellant and the learned APP for the State.
2. The present Criminal Appeal has been filed under Sections 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) against the judgment dated 24.05.2006 and sentence dated 26.05.2006 in Sessions Trial No.243 of 1990 passed by the Additional Sessions Judge, Fast Track Court No.5, Biharsarif, Nalanda (hereinafter referred to as the “Trial Court”), wherein the appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “N.D.P.S. Act”) and sentenced to undergo rigorous imprisonment for 10 years and was also imposed with fine of Rs. 1,00,000/- and in default of which the appellant has to further undergo rigorous imprisonment for 3 years.
3. The brief facts of the case as per the prosecution is that on 25.03.1987, Dinesh Chandra Gupta (P.W.5), Sub- Inspector of Excise, along with Sri S.S. Srivastava, Executive Magistrate, on secret information, visited and recovered 1800 opium plants from the alleged field of appellant at Asha Nagar, Biharsarif and also from nearby two plots 500 and 2000 opium plants respectively were recovered. The informant prepared seizure lists in presence of three witnesses detailing the recovery of opium plants from all three fields. Thereafter, the samples of the opium plants were taken and sealed in packets. A complaint to the learned C.J.M., Biharsarif was presented with seizure lists, application to destroy the opium plants and also the permission to send the sample for chemical examination was sought. The learned C.J.M., Biharsarif at Nalanda ordered to register the complaint and allowed the said applications for destruction of seized opium plants and chemical examination of the said sample. Upon completion of the investigation, it was found that 1800 opium plants recovered on 25.03.1987 from Khata No. 222, Plot No. 375, Area 21 decimals, belonged to Vijay Mahto-appellant herein. Subsequently, a prosecution report was submitted before the learned C.J.M. 17.07.1987 under Section 18 of the N.D.P.S. Act against the appellant/accused.
4. On the basis of material on record, including chemical examination report, the learned C.J.M., Nalanda took cognizance under Section 18 of the N.D.P.S. Act on 17.07.1987. Thereafter, the case was committed to the Court of Sessions on 24.04.1990 and charge was framed against the appellant/accused on 05.02.1999 under Section 18 of N.D.P.S. Act, wherein he pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution has examined total five witnesses to bring home the charges against the appellant/accused.
P.Ws. Name
P.W.1 Santosh Kumar (Seizure list witness)
P.W.2 Dr. Chhatrapati Shivaji (Seizure list witness)
P.W.3 Vijay Kumar (Formal witness)
P.W.4 Navin Kumar Mishra (Member of raiding party)
P.W.5 Dinesh Chandra Gupta (Complainant-cum- Investigating Officer)
Moreover, two court witnesses, namely, Md. Khabir, Circle Officer of Biharsarif Circle as C.W.1 and Vijay Kumar Srivastava, Revenue Clerk as C.W.2 were examined and altogether fifteen documents were exhibited as under:
Exhibit Documents
Ext. 1 Signature of Santosh Kumar (P.W.1) on seizure list
Ext. 1/A Signature of Dr. Chhatrapati Shivaji (P.W.2) on seizure list.
Ext. 2 Complaint dated 25.03.1987 to C.J.M., Biharsarif, Nalanda.
Ext. 3 Petition dated 25.03.1987 to destroy the seized opium plants.
Ext. 3/A The Carbon Copy of order dated 25.03.1987 on the petition to destroy the seized opium plants.
Ext. 3/B Carbon Copy of petition and forwarding order of Court on the same for chemical examination of sample of opium plants.
Ext. 4 Seizure list of 2000 opium plants
Ext. 4/A Seizure list of 1800 opium plants
Ext. 4/B Seizure list of 500 opium plants
Ext. 5 Prosecution Report to C.J.M., Nalanda
Ext. 6 Certificate of Chemical Examiner
Ext. 7 Seizure list
Ext. 8 Carbon Copy of Certificate issued by the Circ
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The conviction of the appellant was overturned due to insufficient evidence of possession and procedural violations under the Narcotic Drugs and Psychotropic Substances Act.
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