The High Court · 1992
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.53 of 1992 In the matter of an Appeal under Section-36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section- 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 7th February 1992 passed by the learned Sessions Judge, Balangir in Sessions Case No.69 of 1991. ---- Bhakta Mahala …. Appellant State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ========================================================= For Appellant -
Legal Reasoning
Mr. S.C. Mohanty, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CORAM: MR. JUSTICE D. DASH DATE OF HEARING :20.06.2024: DATE OF JUDGMENT:01.07.2024 D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 7th February 1992 passed by the learned Sessions Judge, Balangir in Sessions Case No.69 of 1991 arising out of G.R. Case No. 478 of 1991 corresponding to Balangir Sadar P.S. Case No.104 of 1991. CRA NO.53 OF 1992 Page 1 of 5 The Appellant (accused) has been found guilty for offence under section-20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and accordingly, he having been convicted thereunder had been sentenced to undergo rigorous imprisonment for a period of one year. 2. Prosecution case is that on 27.07.1991, the Sub-Inspector of Police (P.W.3) having received reliable information as regards cultivation of cannabis/ganja plants at the Potala Bari of the accused, he (P.W.3) and others had gone there. It was found that in the said Bari, the accused had grown two ganja plants which were than uprooted and seized under seizure list, Ext.1. The F.I.R.(Ext.3) being lodged, case was registered, and investigation commenced. On completion of investigation, Final Form was submitted for placing the accused to face the trial for commission of offence under section-20(a)(i) of the NDPS Act. 3. The Trial Court having gone through the evidence of P.Ws. 1 to 3 as well as the documents admitted in evidence from the side of the prosecution and marked Exts.1 to 4 has held that that the prosecution has proved the charge against the accused beyond reasonable doubt through clear, cogent and acceptable evidence. Accordingly, the accused being convicted for the said offence under section-20(a)(i) of the NDPS Act, has been sentenced as aforestated. CRA NO.53 OF 1992 Page 2 of 5 4. Mr. S.C. Mohanty, learned Counsel for the Appellant, placing the evidence of P.Ws. 1, 2 and 3 submitted that the Trial Court on the basis of the same ought not to have held the accused to have been involved in growing those two seized ganja plants. He further submitted that there is absolutely no evidence on record to show that the accused being the owner of the said Bari had planted those two plants. According to him, there is also no evidence to connect the accused with the growing of the said plants in proving that the accused was taking all such care in growing said two plants either by watering, cleaning, manuring etc. He, therefore, submitted that the finding of guilt against the accused as has been returned by the Trial Court cannot be sustained. 5. Learned Additional Government Advocate submitted all in favour of the finding of guilt fastened against the accused. According to him, all the prosecution witnesses having directly implicated the accused in growing said ganja plants, the Trial Court has rightly convicted the accused under section-20(a)(i) of the NDPS Act. 6. Keeping in view the submissions made; I have carefully read the judgment passed by the Trial Court and I have also extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 4. CRA NO.53 OF 1992 Page 3 of 5 7. In order to address the rival submission and judge the sustainability of the finding of guilt against the accused as has been rendered by the Trial Court, this Court is now called upon to examine the evidence of the prosecution witnesses. P.W.1 in clear terms has stated that when the police people arrived, they asked him to lead to the Bari of the accused and then the accused was not present in the Bari. So in that way accused is not being connected with the Bari. It is also stated by him, that they then entered into the Bari of the accused and that the accused and shown two ganja plants to have been grown there which were seized. As per evidence of P.W.2, the Revenue Inspector, the land in question is a piece of Government land. He has not been able to say as to whether the accused was in possession of the same. It is his evidence that no record is available in the office attributing the possession of the said piece of Government land to the accused. When such is the evidence of P.Ws. 1 and 2, it has been stated by P.W.3 that the accused was present when they arrived at the Bari in question, which is stated otherwise by P.W.1 and also when P.W.3 states that all taken of such plants for their growth was taken by the accused, he admittedly has no direct/ persons knowledge and he also does not cite any prior occasion about such activity of accused being so watched by him. CRA NO.53 OF 1992 Page 4 of 5 8. The evidence of P.Ws.1, 2 and 3 do not suggest that the land in question was in exclusive possession of the accused, and none else was having the access to the same nor there was any scope for any one to enter into the said Bari. In such state of affair, in the evidence, this Court is of the considered view that the Trial Court is not right in holding that the accused had grown those two ganja plants on that piece of land and thus, the cultivation of said ganja plants is attributable to him so as to be held liable under section-20(a)(i) of the NDPS Act. 9. In view of all the aforesaid, this Court is of the view that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. Accordingly, it is held that the accused is entitled to be acquitted of the charge under section- 20(a)(i) of the NDPS Act. Therefore, the impugned judgment of conviction and order of sentence are hereby set aside. 10. The Appeal is allowed. The judgment of conviction and order of sentence dated 7th February 1992 passed by the learned Sessions Judge, Balangir in Sessions Case No.69 of 1991 are hereby set aside. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 09-Jul-2024 18:55:32 CRA NO.53 OF 1992 (D. Dash), Judge. Page 5 of 5