JUDGEMENT

This appeal has been preferred to challenge the judgment of conviction and sentence passed under Section 8 read with Section 20(a)(i) of NDPS Act by Special Judge (NDPS Act), Jabalpur, in Special Case No.24/2003 on 23.1.2006. The appellant was sentenced for it to undergo rigorous imprisonment of one year and fine amount of Rs.1,000/- and further rigorous imprisonment of one month, in case of non-payment of fine.

2. Brief facts of the prosecution case are that an information was received on 24.5.2003 by Chowki Prabhari, Rampur, Police Station, Gorakhpur, that appellant was cultivating "Ganja" in the courtyard of his house located in Jogni Nagar, Chhui Khadan; he recorded the information in Rojnamcha Sanha, summoned the independent witnesses and proceeded for spot along with witnesses and the police party; on arrival at the house of appellant, he was informed about mukhbir soochna; his consent was taken for search; the police party first gave its search to the appellant and then searched his house in which a five feet high plant of cannibus was found; it was uprooted and weighed; the samples of leaves and stem were taken; the samples as well as the plant were seized and the appellant was arrested; on return to police station, the FIR was registered and the report was sent to CSP; information about the ownership and possession over the house were obtained from Nagar Nigam and MPSEB. After completion of investigation, the charge-sheet was filed, the trial was held and upon its conclusion, the appellant was convicted and sentenced as aforesaid.

3. The grounds raised in this criminal appeal are that the learned trial court erred in holding the appellant guilty and the sentence passed is improper and illegal; there was no evidence to indicate that the alleged plant was of "Ganja"; necessary ingredients of offence of Section 8/20(a)(i) of NDPS Act was completely missing; the benefit of provisions of Probation of Offenders Act should have been given to the appellant. It is, therefore, prayed that the appeal be allowed and the appellant be acquitted.

4. On the other hand, learned counsel for the State has vehemently opposed the present appeal and has prayed for its rejection.

5. Both the parties have been heard and the record has been perused. 6 . The prosecution has relied upon the testimony of Seizure Officer Bharat Dubey (P.W.7), member of search party Constable Santosh (P.W.1) and witness to the seizure proceedings Uday Bhan Yadav (P.W.3). The statements given by these three witnesses reveal that they all reached to the house of appellant on 24.5.2003 and a search of his house was conducted. Bharat Dubey (P.W.7) has claimed that this search was held for the reason that an information from mukhbir was received by him which he had recorded in Rojnamcha Sanha, Ex.P-20, and also prepared a mukhbir Panchnama, Ex.P-3. It has also been disclosed by him that he prepared a Panchnama for not obtaining the search warrant, which is Ex.P-4, and sent its information to CSP Gorakhpur, which was received by his reader. The letter written in this regard is Ex.P-13, which bears the receipt of reader. It has also been disclosed by Bharat Dubey (P.W.7) that the Rawangi Rojnamcha marked as Ex.P-22 has the entry of police party leaving for the spot along with the witnesses.

7 . All the aforesaid witnesses, namely Santosh (P.W.1), Uday Bhan (P.W.3) and Bharat Dubey (P.W.7) have made statements that on reaching the house of appellant, a search was made after taking consent of appellant and for this, documents were prepared. These three witnesses have also claimed that upon this search, a plant of cannibus was found growing in the courtyard of appellant, which was of five feet height and the samples of its leaves, etc. were taken while the plant was uprooted and seized. According to these witnesses, the appellant was arrested and the sample as well as plant were sealed on spot.

Shri R. S. Pandey (P.W.2) was the Malkhana Moharrir in Police Stati