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2017 DIGILAW 1050 (ORI)

Mohadev Gond v. State of Odisha

2017-09-14

D.DASH

body2017
JUDGMENT : 1. The appellant being aggrieved by the judgment of conviction and order of sentence dated 22.09.2012 by the learned Sessions-cum-Special Judge, Sambalpur in Criminal Trial No. 08 of 2004, convicting him for offence under section 20 (a) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, NDPS Act) and sentencing him to undergo rigorous imprisonment for a period of ten years with payment of fine of Rs. 1.00 lakh in default to undergo rigorous imprisonment for two years has preferred this appeal from inside the jail. 2. The case of the prosecution is as under:- On 10.11.2003 around 6.30 AM, the Officer-in-Charge of Raighar Police Station, P.W. 8 received credible information that the appellant in his village had cultivated cannabis (ganja) plants. So, he having entered the said fact in the Station Diary Book of the police station and having intimated the Circle Inspector of Police, Umerkote, proceeded to village Chitrakote with his staff. On arrival there at village Chitrakote, they went to the bari (backyard of the house) of the appellant with local witnesses and detected the appellant to have cultivated one hundred and ten numbers of cannabis plants. Observing all the formalities of search and seizure, P.W. 8 then seized those plants uprooting those from the bari of the appellant and prepared the seizure list. All those plants weighed 26 kgs. On completion of the investigation, charge-sheet having been submitted against the appellant, he faced the trial being charged for commission of offence under section 20(a)(i) of the NDPS Act. The appellant in the said trial while denying the charge pleaded his innocence. 3. During trial, prosecution examined eight witnesses when defence has examined none. From the side of prosecution several documents such as F.I.R., seizure list, Chemical Examiner’s report etc have also been proved. The trial court on analysis of evidence as let in by the prosecution has found the prosecution to have proved its case beyond reasonable doubt that it is the appellant who had cultivated those seized cannabis plants in his bari in violation of the provision of section 8 of the Act. With the said finding, conviction has been recorded and the order of sentence as above stated has followed, which are now impugned in this appeal. 4. Mr. With the said finding, conviction has been recorded and the order of sentence as above stated has followed, which are now impugned in this appeal. 4. Mr. Samarendra Mohanty, the learned counsel appearing for the appellant submits that the prosecution case with regard to cultivation of cannabis plants by the appellant has not at all been established by requisite evidence. He further contends that even if for a moment, it is found that those 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 such clinching evidence to further provide support to it in that direction. According to him, the trial court has simply been swayed by the factum of seizure of large number of plants and that has mainly weighed in its mind to fasten the guilt upon the appellant without establishment of the appellant’s nexus with the seized plants through clear, cogent and acceptable evidence. He also submits that the evidence is not sufficient to conclude that the seized plants were grown in the place which is said to be 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. 5. Mr. Sidharth Sankar Mohapatra, learned Additional Standing Counsel supporting the findings of the trial court 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 seized cannabis plants in his bari which was in the exclusive possession of the appellant. 6. Keeping the above rival submissions in mind so as to be addressed, let me take up the exercise of analysis of the evidence on record to find out as to how far the prosecution has established the factum of cultivation of seized numbers of cannabis plants by the appellant in his bari which would eventually lead to the examination of the findings of the trial court as regards their sustainability. It is the evidence of P.W.2 the Executive Magistrate, a member of the raiding party that the appellant has a bari which was searched after carrying out the search in his house. It is the evidence of P.W.2 the Executive Magistrate, a member of the raiding party that the appellant has a bari which was searched after carrying out the search in his house. It is not the prosecution case that there had either been the seizure of any contraband item from the house or any such other article having the connection with the cultivation of cannabis plants. Although, his evidence is to the effect that P.W. 8 at the spot identified the appellant before him, he is silent as regards any role being played by the appellant there at the time of their arrival or shortly before it which he had noticed. This witness is thus not saying anything either relating to cultivation of the cannabis plants by the appellant or that about the possession of that bari by the appellant or that the appellant was doing something then so as to take a view that he was in care and control of those plants which were uprooted from the back side field of the house of the appellant and seized. A co-villager of the appellant is P.W.1, does not implicate the appellant in any manner. P.W. 3 is the Revenue Inspector and his evidence is to the effect that the appellant’s house and bari stand on the land notified as reserve forest. Both these above official witnesses are silent about their noticing any sort of fencing of the land around where the house and bari situate. P.W.3 does not state about any proceeding to have been initiated against the appellant being in unauthorized possession of the land under reserve forest although he is the concerned officer for reporting the same. The evidence of these witnesses that the seizure of plants has been from the bari of the appellant, is not acceptable as they do not state as to how they derived said knowledge or from whom. They do not also state anything as regards the conduct of the appellant on the field at the relevant time. So their evidence that it is the bari of the appellant do not make any sense. P.W. 4 has stated that P.W. 1 and Tanuram had showed them the house of the appellant. He has no personal knowledge with regard to the possession of the land in question or about the cultivation there on. So their evidence that it is the bari of the appellant do not make any sense. P.W. 4 has stated that P.W. 1 and Tanuram had showed them the house of the appellant. He has no personal knowledge with regard to the possession of the land in question or about the cultivation there on. His derivation of knowledge about it appears to be based on the information that he received from the some other source which he has not disclosed. This witness has also not stated that at the time of his arrival with other staff and witnesses, the appellant was near the plants or even at the bari. His evidence is rather specific that the appellant was in his house. The prosecution has also not tendered any evidence on the score that it is the appellant who was in control or taking care of that bari and the plants grown thereon by looking after those frequently or by doing any such act/acts for the purpose of growing those plants or nurturing. No evidence is also forthcoming that the land in question was under any sort of fencing or enclosure in any manner that it was not possible to be used by anyone else other than the appellant in order to show that the appellant was in exclusive possession of the same. The prosecution evidence is also not on the score that at any time, this appellant was sprinkling water over those plants, or clearing the area or manuring or doing such other like act so as to infer the appellant’s knowledge about the growth of the plants seized, leaving the ball in his court to explain that he had no nexus with those plants for wriggling out of the liability. More particularly, in this case it is not even stated as to what was the size of that patch of land where the plants were found to have been grown or that whether it was in compact block or had grown in a scattered manner, the bari being of quite large in extent. That too when it is not stated to be under any enclosure, its mere situation i.e. adjoining the house of the appellant on its backside is of no such significance for the purpose of establishing the prosecution case as laid. That too when it is not stated to be under any enclosure, its mere situation i.e. adjoining the house of the appellant on its backside is of no such significance for the purpose of establishing the prosecution case as laid. In such state of affair in the evidence, the trial court ought not to have placed the burden upon the appellant to explain as to who then had cultivated the ganja plants in order to escape from the criminal liability. The prosecution evidence when lack in arriving at the conclusion even with regard to the knowledge of the appellant about the said cultivation, the appellant ought not to have been held to be under the legal obligation to explain about the cultivation so as to get rid of being fastened with the liability for that. In view of the aforesaid discussion, the factum of seizure of ganja plants even when accepted, this Court finds that the prosecution has failed to establish the fact that it is the appellant who had cultivated those cannabis plants or that such growth of the plants was within his knowledge or that the land over which those had been grown was in his exclusive possession. In view of aforesaid, the trial court’s finding holding the appellant guilty for commission of offence under section 20 (a) (i) of the NDPS Act is found to be vulnerable. The judgment of conviction and order of the sentence are thus liable to be set aside which is hereby done. 7. In the result, the appeal stands allowed. The appellant be set at liberty forthwith, if his detention is not required in connection with any other case. LCR received be sent back forthwith along with a copy of the judgment.