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2014 DIGILAW 431 (ORI)

Sadhu Bhoi v. State of Orissa

2014-07-18

D.DASH

body2014
Judgment The appellant being aggrieved by the judgment of conviction recorded against him by the learned Sessions Judge, Sambalpur in S.T. No. 129 of 1990, convicting him for offence under Section 20 of the N.D. and P.S. Act, 1985 and sentencing him to undergo rigorous imprisonment for a period of one year with payment of fine of Rs. 500/- in default to undergo rigorous imprisonment for three months has preferred this appeal. 2. The case of the prosecution is as under: On 29.03.1990 around 6.30 AM the Officer-in-charge of Ambabana Police Station, P.W.5 received credible information that the appellant in his village had cultivated cannabis (ganja) plants on his land. So he having entered the said fact vide Station Diary Entry No. 427 dated 29.03.1990, with his staff proceeded to village Bugbugi and arrived at 8.00 A.M. Thereafter they went to the bari (backyard of the house) of the appellant with local witnesses and detected that the appellant to have cultivated seven numbers of cannabis plants. Observing all the formalities of search and seizure, P.W.5 then seized those seven number of plants uprooting those from the bari of the appellant and prepared the seizure list. On completion of the investigation, charge sheet having been submitted against the appellant, he faced trial being charged for commission of offence under Section 20 of the N.D.P.S. Act. The appellant while denying the charge, pleaded his innocence. 3. In the trial, prosecution examined five witnesses when the defence examined none. The trial Court on analysis of evidence as let in by the prosecution has found that the prosecution has proved its case beyond reasonable doubt that it is the appellant who had cultivated those seven numbers of cannabis plants in his bari in violation of the provision of Section 8 of the Act. With said finding, conviction has been recorded, followed by the order of sentence as above stated which are now impugned in this appeal. 4. Learned counsel for the appellant submits that the prosecution case with regard to cultivation of cannabis plants by the appellant has not been established by requisite evidence at all. With said finding, conviction has been recorded, followed by the order of sentence as above stated which are now impugned in this appeal. 4. Learned counsel for the appellant submits that the prosecution case with regard to cultivation of cannabis plants by the appellant has not been established by requisite evidence at all. He further contends that even if for a moment it is found that seven numbers of cannabis plants were seized from the bari of the appellant, still as such he cannot be held liable for cultivating the same in absence of any other evidence to substantiate on that score. Thus according to him, the trial Court has simply been swayed away with factum of seizure to fasten guilt upon the appellant. He also submits that the evidence is not sufficient to conclude that those plants were grown in the bari in exclusive possession of the appellant. Thus he contends that the judgment of conviction and order of sentence cannot stand in the eye of law. Learned counsel for the State supports the findings of the trial court and contends that the same is based on just and proper appreciation of the evidence and the prosecution according to him has established by clear cogent and acceptable evidence that it is the appellant who had cultivated those seven numbers of cannabis plants in his bari which has been seized. 5. Keeping the above rival submissions in mind, let us now proceed to analyze the evidence on record to find out as to how far the prosecution has, established the factum of cultivation of seven numbers of cannabis plant by the appellant in his bari. It is the evidence of P.W.1 that the appellant has a bari which is a Government land. His evidence is to the effect that P.W.5 called him to the bari of the appellant and showed some trees and then seized those. This witness is thus not supporting the prosecution case relating to cultivation of the cannabis plant by the appellant or that the bari was in exclusive possession of the appellant. For that reason, prosecution has been permitted to cross-examine the witness. But nothing substantial has been elicited from him in support of the case of the prosecution on the above score. For that reason, prosecution has been permitted to cross-examine the witness. But nothing substantial has been elicited from him in support of the case of the prosecution on the above score. On being asked, that he had stated before police as regards such cultivation of cannabis plants by the appellant, he has flatly gone to deny. During cross-examination, this witness has stated that the appellant has three sons, two of them have married and they use to look after the cultivation when the appellant simply remains engaged in tending the goats. Although he has stated that it is the appellant who has a bari in possession, his evidence on the score of cultivation is that bari was being looked after by the appellant three years before. Another co-villager of the appellant is P.W.2. His evidence also runs in the same line. P.W.3's evidence is to the effect that the appellant used to raise vegetables in that bari and on the relevant date there was seizure of cannabis plants from the bari of the appellant. He has further stated that the activities in that bari was being carried out by the appellant and his sons. The Revenue Inspector has been examined as P.W.4. His evidence is that the land in question stands recorded in Government Khata. Although, he states that it is the appellant who was in unauthorized possession of the same, he is not coming to state the source of his knowledge it was from any record when he is also not a co-villager. Though it is stated by him that he ascertained the said fact from Neheru Sandha and Sitaram Pradhan, both being examined as P.Ws. 1 and 2 respectively do not support it by stating to have expressed before P.W.4 about possession of the said land by the appellant. In the case the last witness of the prosecution is P.W.5. He is not a witness to have personal knowledge of the possession of the land in question or about cultivation thereon. His knowledge is based on the information that he received from the other villagers who have not gone to support the case of the prosecution in clear terms. This witness has also not stated that even at the time of his arrival with other staff and witnesses, the appellant was near the plants or even at the bari. His knowledge is based on the information that he received from the other villagers who have not gone to support the case of the prosecution in clear terms. This witness has also not stated that even at the time of his arrival with other staff and witnesses, the appellant was near the plants or even at the bari. The prosecution has not also lead any evidence on the score that it is the appellant who was taking care of that bari and the plants grown therein by looking after those frequently or by doing other act which is required for the purpose of growing those plants. No evidence is also forthcoming that the land in question was under fencing in any manner that it was not possible to be used by anyone other than the appellant in order to show that the appellant was in exclusive possession of the same. The prosecution evidence is also not there that at any time, this appellant was sprinkling water over those plants, or clearing the area etc. from which appellant's knowledge could have been inferred leaving the call in the Court of appellant to show that he had no nexus with those plants. It is the common knowledge that such kind of plants also accidentally grow in some place. Here also the number of plants are not so such that interference of knowledge of growth of those can be attributed to the appellant. More particularly in this case it is not even stated as to what was the size of that bari and its area. P.W.4, the Revenue Inspector has not whispered about it. In such state of affair in evidence, and in view of the aforesaid discussion, even accepting for a moment the factum of seizure of seven numbers of ganja plants, this Court finds that the prosecution has failed to establish the fact that it is the appellant who had cultivated those cannabis plants or even that such growth of the plants was within his knowledge or that the land over which those had grown was in his exclusive possession. The trial Court's finding holding the appellant guilty for commission of offence under Section 20 of the Act is thus found to be vulnerable and so also the order of sentence. Resultantly, the judgment of conviction and order of sentence are hereby set aside and the appeal stands allowed. Appeal allowed.