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2014 DIGILAW 176 (ORI)

STATE OF ORISSA v. MOCHIA GOUDA

2014-03-14

D.DASH

body2014
JUDGMENT : D. Dash, J. - The State has challenged the judgment passed in S.C. No. 14/ 95 by the learned 1st Additional Sessions Judge, Berhampur acquitting the respondent of the charge for offence under Section 20 (a) and (b) (i) of the N.D.P.S. Act, 1985. 2. Prosecution case, in short, is that on receiving information, the Officer-in-Charge of Badagada Police Station on 28.11.1994 around 6.30 P.M. reached village Karataili. The information was to the effect that the respondent had raised Hemp (Ganja Plants) at backyard (bari) of his house. The police personnel, having arrived there, raided the house and finally detected that two Hemo Plants deeply rooted to the earth on the bari of the respondent. Thereafter, the plants were cut at their roots and seized. Samples were collected from the flowering and fruiting portion of the plants, sealed at the spot in presence of the witnesses and others followed by seizure. 3. The samples were sent to the chemical examiner and the report was received in the affirmative. Finally charge-sheet was filed placing the respondent for trial in the Court of law for the above offences. 4. During trial, the respondents took the plea of complete denial and in his statement under Section 313, Cr.P.C., has further taken a specific stand that he has no bari and the case is said to have been foisted against him at the instance of one Bijaya Patnaik, his adjacent neighbour being in inimical terms with him. 5. Prosecution during the trial has examined as many as 10 witnesses. P.W.1 is then Officer-in-Charge of the Police Station, who had gone as the leader of the team to the house of the respondent. P.W.2 is the neighbour of the respondent, P.W.3 is a member of the raiding party as Havildar of police, P.W.4 is an independent witness to the seizure of the Hemp Plants, P.W.7 is another member of that raiding party, who had accompanied P.W.1 and so also P.W.8, a member of that party, P.Ws.9 and 10 are the two Investigating Officers. Defence has examined none despite of the opportunity being given to him in that regard. Prosecution besides leading oral evidence has also proved documents such as the seizure list Ext. 1 showing seizure of the Hemp Plants, report of the chemical examiner of R.F.S.L, Rasulgarh Ext. 4/1, F.I.R. Ext.-3 and the forwarding letters addressed the Chemical Examiner Exts. Defence has examined none despite of the opportunity being given to him in that regard. Prosecution besides leading oral evidence has also proved documents such as the seizure list Ext. 1 showing seizure of the Hemp Plants, report of the chemical examiner of R.F.S.L, Rasulgarh Ext. 4/1, F.I.R. Ext.-3 and the forwarding letters addressed the Chemical Examiner Exts. 2 and 4. 6. The settled position of law regarding the powers to be exercised by High Court in an appeal against the order of acquittal is that while High Court has full powers to appreciate the evidence upon which an order of acquittal is based and to act on its own thereof, it will not do so lightly and will be slow to reverse an acquittal, except for strong and compelling reasons when it differs from that of the trial Court. The paramount consideration in the matter is to avoid miscarriage of justice. Of course where two views are possible and the trial Court has taken a reasonable view and acquitted the accused, the High Court in appeal cannot interfere with such finding but when there is perverse finding based on erroneous appreciation of evidence and a serious miscarriage of justice has been caused, the High Court has ample power to reverse that finding. 7. Learned counsel for the State submits that in this case the trial Court ought to have recorded a positive finding that the Hemp Plants were grown by the respondent on his backyard as there remains absolutely no reason to discard the evidence with regard to detection of the two Hemp Plants in the backyard (bari) of the respondent and then their seizure and also when the same has been confirmed to be the Hemp Plants by chemical examination. It is his further submission that the trial Court on some flimsy grounds on erroneous appreciation of evidence has gone to record the order of acquittal. In view of the above, he urges for interference with the order of acquittal in this appeal preferred at the instance of the State. 8. Learned counsel for the respondent, on the other hand, submits that even leaving aside the reasons given by the trial Court when the evidence is independently assessed and analyzed, the prosecution can be said to have failed to establish the charges against the respondent. 8. Learned counsel for the respondent, on the other hand, submits that even leaving aside the reasons given by the trial Court when the evidence is independently assessed and analyzed, the prosecution can be said to have failed to establish the charges against the respondent. In this connection, he has taken great pain by placing the depositions of the witnesses examined on behalf of the prosecution in finally submitting that the evidence is only lacking to establish the nexus between the respondent and the Hemp Plants said to have been seized after being uprooted. He also submits that the trial Court's view cannot be said to have been based on erroneous appreciation of evidence and their remains no compelling reasons to upset the order of acquittal and here it can never be said that there has been miscarriage of justice thereby when the trial Court has taken quite a reasonable view. 9. Keeping in view the scope of this appeal and power of the Court in seisin of this appeal as, well as the rival submission, it is necessary now to go through the evidence. P.W.1 in his evidence has simply stated to have discovered two Hemp Plants of different sizes and, according to him, those were seized under seizure list Ext. 1. It is his further evidence that the plants were standing on the respondent's backyard. Except this, he has not gone to further state anything as to establish any connection between such growing of Hemp Plants and the respondent. P.W.2's evidence is also to the effect that after search two Hemp Plants were detected at the bari of the respondent, which was letter on seized. Both these witnesses have stated that the respondent accompanied them to the backyard. Evidence of P.W.3 also runs in the same vein that they had gone to the backyard of the house of the respondent and therefrom two Hemp Plants were uprooted and seized followed by collection of the samples from the flowering and fruiting portion of the plants. P.W.4 has again stated that the respondent had gone to the bari and there was seizure of Hemp Plants. P.W.7 is the police personnel, who had also accompanied other members of the raiding party, he has stated that they found two Hemp Plants at the backyard of the house of the respondent, which were then cut and seized. P.W.4 has again stated that the respondent had gone to the bari and there was seizure of Hemp Plants. P.W.7 is the police personnel, who had also accompanied other members of the raiding party, he has stated that they found two Hemp Plants at the backyard of the house of the respondent, which were then cut and seized. Evidence of P.W.8 runs in the same vein. So, taking into consideration the entire evidence let in by the prosecution, I do find any nexus to have been established between the two numbers of Hemp Plants said to have been seized with the respondent. Even after accepting for a moment that two Hemp Plants were found to have been there in the backyard of the house of the respondent, the same cannot be said to have been grown or cultivated by the respondent without any further evidence on the score that the respondent was doing any further act in the direction of rearing those plants, such as, watering, taking care or even some sort of conduct that he was hiding their existence from others by doing some further act. Here the conduct of the respondent also is not such so as to infer in the above light. When all the prosecution witnesses have stated that the respondent accompanied them to his backyard, the same rather stands as a conduct favouring the ignorance of the respondent about the existence of those plants and the accidental growth of only two plants is also not altogether ruled out. The prosecution evidence is also not there as regards the size and area of the backward from which necessary interference could have been at least drawn as regards the knowledge of the respondent about the existence of those two plants. Furthermore, P.W.1 and P.W.2 stated that the backyard was open and P.W.1 again says that it was having green fence. The evidence is also wholly deficient as regards the possession of the said land much less to say exclusive possession. There is also no evidence that there was no other adult male member of the family or that the petitioner as head of the family was looking after all these properties. Therefore, even without looking at the appreciation of evidence as made by the trial Court and without going to examine as to whether the same is perverse or not, on my independent assessment of evidence. Therefore, even without looking at the appreciation of evidence as made by the trial Court and without going to examine as to whether the same is perverse or not, on my independent assessment of evidence. I find the prosecution to have not been able to establish the case of cultivation of the Hemp Plants of the respondent in his backyard by leading evidence on all such facts for the said purpose. Therefore, I find no compelling reason to disturb the ultimate result by interfering with the order of acquittal. Resultantly, the Government Appeal stands dismissed.