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2015 DIGILAW 651 (ORI)

Narendra Sahu v. State of Orissa

2015-11-23

S.PUJAHARI

body2015
JUDGMENT : S. Pujahari, J. 1. The appellant in this appeal calls in question the judgment of conviction and order of sentence passed by the learned Sessions Judge, Bolangir in Sessions Case No. 20 of 1992. Learned Sessions Judge, Bolangir vide the impugned judgment held the appellant guilty of charges under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as N.D.P.S. Act) and sentenced him to undergo rigorous imprisonment for one year and to pay a sum of Rs. 5,000/- (rupees five thousand) in default, to undergo rigorous imprisonment for one year more for that count. Case of the prosecution is that on 28.01.1992 Sivanarayan Panda (P.W.3), the Sub-Inspector of Excise, Bolangir while conducting patrol duty in village Kuturapali noticed the appellant was watering green 'hemp plants inside a fenced field known as 'Bel Atta' locally. He as such proceeded to the spot along with his staff Lalit Mohan Mishra (P.W.1) and demanded the appellant to show authority for cultivation of the same, but the appellant could not show any authority or license for such cultivation. He uprooted and counted the plants which comes to 277 and seized the same through seizure list (Ext. 1) and forwarded the appellant to the court. So also conducted further enquiry and on completion of the same, he placed the prosecution report against the appellant for alleged commission of offence punishable under Section 20(a)(i) of the N.D.P.S. Act. The appellant being charged of the aforesaid offence and having pleaded not guilty, faced the trial before the learned Sessions Judge, Bolangir. 2. On conclusion of the trial, basically relying on the evidence of official witnesses P.Ws. 1 and 3, the trial court returned the judgment of Conviction and order of sentence repelling the defence plea of denial and false implication. 3. It has been submitted by the learned counsel for the appellant that in this case since the version of the prosecution witnesses against the appellant was not corroborated by the independent witness to seizure who said to have witnessed the seizure, the trial court ought not have returned the judgment of conviction and order of sentence solely relying on the version of official witnesses P.Ws. 1 and 3 more particularly when their evidence is unworthy of credence, in the facts and circumstances of the case. 4. 1 and 3 more particularly when their evidence is unworthy of credence, in the facts and circumstances of the case. 4. Learned counsel for the State, however, has defended the impugned judgment of the trial court to be just and proper inasmuch as there is no impediment in law to record the conviction basing on the testimony of the official witnesses particularly when the same suffers from no infirmity and worthy of credence. According to him, since in this case the evidence of official witnesses are clear, cogent with regard to cultivation of ganja by the appellant and seizure of the same and there was nothing on record to suggest that P.Ws.1 and 3 had any reason to falsely implicate the appellant, even if their version was not supported by P.W. 2, the independent witness to seizure, the trial court has rightly placed reliance on the same and found the appellant guilty of the charge, The appeal filed challenging the same as such liable to be dismissed was also the submission of the learned counsel for the State. 5. On perusal of the materials on record it would go to Show that the version of the official witnesses with regard to the fact that the appellant was cultivating ganja and the seizure is not supported by the independent witness i.e. P.W.2. It is settled law that the same can hardly be a ground to discard the evidence of official witnesses to record the conviction if the version of the official witnesses is otherwise worthy of credence and prove the guilty of the accused beyond reasonable doubt. The aforesaid law has been well settled in a catena of decisions by the Hon'ble Apex Court so also by this Court. The aforesaid law has been well settled in a catena of decisions by the Hon'ble Apex Court so also by this Court. One of such case is the case of Nathusingh v. State of Madhya Pradesh reported in AIR 1973 SC 2783 , wherein the Hon'ble Apex Court have held that: "The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused." A Division Bench of this Court in the case of Nilambar Sahu v. State of Orissa reported in (1990) 3 OCR 219 relating to Bihar and Orissa Excise Act have held that: "Even if the evidence of these two witnesses be not available to the prosecution to establish its case, the evidence of the three official witnesses cannot be brushed aside. Even a closure scrutiny of the evidence does not permit us to differ with the finding of fact reached by the two courts below in this regard." So also in the case of Shyam Sunder Rout v. State of Orissa reported in 1991 Cri LJ 1595, this Court has held that: "It is well settled in law that where seizure witnesses turn hostile, the evidence of the departmental witnesses can be relied upon to prove the fact of seizure unless there is intrinsically anything which appears to make their evidence non-trustworthy." Section 118 of the Indian Evidence Act, 1872 also does not make the official witnesses to be incompetent witnesses. Again Section 134 of the Indian Evidence Act, 1872 speaks that no particular number of witnesses shall in any case be required for the proof of any fact. The said section also does; not make any distinction with regard to version of official witnesses and other witnesses. Therefore, even if the version of the independent witness to seizure does not support the case of seizure if the version of the official witnesses making the seizure is worthy of credence and suffers from no infirmity, there is no impediment in law to place reliance on such evidence to accept the seizure. The law with regard to appreciation of the version of official witnesses is that their testimonies are required to be scrutinized fairly and dispassionately like the other witnesses in order to find out whether the same inspire confidence and can be safely relied upon. The law with regard to appreciation of the version of official witnesses is that their testimonies are required to be scrutinized fairly and dispassionately like the other witnesses in order to find out whether the same inspire confidence and can be safely relied upon. On such scrutiny, if no infirmity is found in the version, there is no impediment to make the foundation of conviction and record a conviction on the same even if not corroborated by any other independent witness. In view of the aforesaid, contention advanced by the learned counsel for the appellant that since the version of the official witnesses are not supported the independent witness, such version of the official witness to incriminate the appellant requires outright rejection, is unacceptable. 6. Keeping in mind the aforesaid settled law, the evidence of official witnesses in this case is required to be addressed. It appears from the version of the said witnesses i.e. P.W. 1 and 3 that while they were on patrol duty, they found the appellant was watering the plants, which were found to be hemp plants with a bucket of water and as such the appellant was booked for cultivating the ganja under the N.D.P.S. Act as the appellant had no authority for the same. The appellant on the contrary stated that the allegation is false as he had never cultivated the field. The excise officer, P.W. 3 had made no effort to prove whether the field in which the said plants were cultivated belonging to the appellant. No doubt, the ownership of the field of the appellant was not a prerequisite or an ingredient to prove the cultivation inasmuch as a person can cultivate a land belonging to others or having no ownership on the land can commit the crime by planting ganja on the same. But in all fairness of the things and in normal course, the P.W. 3 should have verified the ownership of the field where cannabis were said to have been cultivated, which would have been an important link to prove the offence. P.W. 3 did not do the same. It was the version of PWs. 1 and 3 that the appellant was watering the ganja plants. The Ganja plants had grown up 6 inches. Number of plants were seized and on counting it comes to 277. P.W. 3 did not do the same. It was the version of PWs. 1 and 3 that the appellant was watering the ganja plants. The Ganja plants had grown up 6 inches. Number of plants were seized and on counting it comes to 277. The presence of any water source nearby was also not deposed by the P.Ws. 3. In such premises, it is hard to accept that the appellant was watering the plants by a bucket of water. Furthermore, the bucket was also not seized from the spot. Therefore, the evidence of the official witnesses adduced to connect the appellant to the cultivation of the plants seized by the aforesaid evidence, is not convincing one. Besides the same, no other evidence was adduced to connect the appellant with regard to the plants seized. Hence, even if the version of the official witnesses with regard to the cultivation and seizure is acceptable, but there being no convincing evidence that the appellant had cultivated the same, the trial court should not have accepting the version of the official witnesses that when they arrived near the field the appellant was there and watering the plant, held the appellant guilty of charge, more particularly when the same was not corroborated by the version of independent witnesses. Resultantly, for the forgoing reasons the appeal is allowed. The judgment of conviction and order of sentence are set aside. The appellant-Narendra Sahu is acquitted of the charges in which he was found guilty in this case. He being on bail, the bail bonds shall stand discharged. Appeal Allowed.