JUDGMENT :

Per, Shree Chandrashekhar, J.

Chandwa PS Case No. 28 of 2009 was registered on 04.03.2009 against Lacchu Ganjhu and Parana Ganjhu on the allegation of illegal cultivation of poppy plants. After the investigation charge-sheet was submitted under sections 15 and 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S Act). In N.D.P.S Case No. 08 of 2009 a charge under sections 15, 18 and 21 of N.D.P.S Act was framed against Lacchu Ganjhu and under section 18 of N.D.P.S Act against Parana Ganjhu. During the trial the prosecution has examined eight witnesses out of whom PW3-Rakesh Thakur and PW5-Md Mahtab were tendered for cross-examination.

PW1-Rupesh Nayak who was the driver was declared hostile when he stated in the Court that he put his signature on the papers at the police station; that the bundle of poppy (posta) plants was tied with a cloth, and; that he cannot give description of the poppy plants. The learned District & Additional Sessions Judge-II, Latehar has held that the seizure witnesses have proved seizure of the illegal narcotic plants and the other witnesses such as PW2, PW4 and PW8 have also supported the prosecution case. Lacchu Ganjhu was convicted and sentenced to R.I for ten years with a fine of Rs. 1,00,000/-under sections 15 and 21 of N.D.P.S Act on each count separately. Lacchu Ganjhu was further convicted and sentenced to R.I for 10 years with a fine of Rs. 1,00,000/-under section 18 of N.D.P.S Act. The appellant, namely, Parana Ganjhu was convicted and sentenced to R.I for ten years with a fine of Rs. 1,00,000/- under section 18 of N.D.P.S Act.

2. On 04.03.2009 Shamim Ahamad Khan was posted as officer-in-charge of Chandwa PS. On the basis of his statement a First Information Report was lodged against Lacchu Ganjhu and Parana Ganjhu. In his statement recorded on 04.03.2009 at 11:30 AM in the village Lukaiya, Shamim Ahamad Khan has disclosed that on the basis of a secret information that poppy is cultivated in the field of Parana Ganjhu after making entry in the Station Diary he sent information to the Block Development Officer and asked him to participate in the proceeding as a Magistrate. Thereafter he proceeded for village Lukaiya with Ramdeo Ram Ravi and the police force and in course of enquiry he was told that Lacchu Ganjhu has cultivated poppy in the field of Parana Ganjhu. About one kilometer away from the village he found two persons removing Doda from the poppy field. On enquiry they disclosed their identity. On the boundary of the field he found four gunny bags and one plastic bag containing 50-60 kilograms Doda. On enquiry Lacchu Ganjhu and Parana Ganjhu admitted that Lacchu Ganjhu has cultivated poppy in the field of Parana Ganjhu. The poppy plants were seized in the presence of independent witnesses and he also put his signature on the same. Thereafter confessional statement of Lacchu Ganjhu was recorded by Ramdeo Ram Ravi, the Investigating Officer.

3. The witnesses examined by the prosecution during the trial were official witnesses. The learned counsel for the appellants has raised a plea that the procedure prescribed for search and seizure was not followed, the prosecution has not established that poppy was cultivated in the agricultural field of Parana Ganjhu and, above all, on the basis of the evidence of official witnesses conviction of the appellants cannot be recorded under sections 15, 18 and 21 of N.D.P.S Act.

4. PW1 is the driver who was posted at the police station. He has stated that the officer-in-charge and the police force had proceeded for village Lukaiya and Doda was seized in his presence. In his cross-examination he has stated that he put his signature on the seizure-memo in the police station and poppy plants tied with the cloth were kept in a room. He has further stated that he does not know how a poppy plant looks like. At this stage he was declared hostile at the instance of the prosecution. PW2 is a constable who was member