The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.327 of 2003 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 16.12.2003 passed by the learned Judge, Special Court-cum-Sessions Judge, Dhenkanal in Spl. Case No.4 of 2001. ---- Srikant Dash …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. Sudipto Panda Advocate For Respondent - Mr. P. K. Mohanty Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 20.05.2024 : Date of Judgment :20.06.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 16.12.2003, passed by the learned Judge, Special Court-cum- CRLA No.327 of 2003 Page 1 of 11 Sessions Judge, Dhenkanal in Special Case No.04 of 2001 arising out of Hindol P.S. Case No.36 of 2001. The Appellant (accused) thereunder has been convicted for commission of the offence under section 20(a)(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’) for having cultivated cannabis (ganja plant). Accordingly, he has been sentenced to undergo rigorous imprisonment for a period of two (02) years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for three months. 2. Prosecution Case:- On 18.08.2001 around 11 a.m, the Officer-in-Charge (OIC) of Hindol Police Station (P.W.5) received information that the accused had cultivated some Hemp Plants in his bari. Having entered the said fact in the Station Diary Book, maintained at the Police Station, he (P.W.5) intimated the same to the Superintendent of Police and Circle Inspector, Sadar Dhenkanal over VHF. Immediately thereafter, he proceeded to the village Bhgabanpur, where the house of the accused situated. He went with his other staff including the Assistant Sub Inspector (ASI) of Police attached to the Police Station (P.W.4). Having arrived at the spot, he (P.W.5) called the accused. Accused then is said to CRLA No.327 of 2003 Page 2 of 11 have come out of his house. P.W.5 gave his identity to the the accused and told him that they would search his courtyard (bari land) as they suspected that he had cultivated Hemp plants in his bari. The accused gave his consent in writing and thereafter in presence of witnesses, the bari of the accused was searched. In course of search, six (06) numbers of Hemp Plants were found to have been standing over the bari of the accused. The Hemp Plants being detected to be grown in the bari land, the accused was asked to uproot the plants which was then seized. P.W.5 then collected two packets of samples each containing 50 grams from out of those plant materials. He (P.W.5) then seized those uprooted plants under seizure list (Ext.1) and kept those in a gunny bag. The bags were sealed and so also the sample packets by using the personal brass seal of P.W.5. The brass seal was handed over to one Sameer Barik (P.W.1). P.W.5 then drew up
Legal Reasoning
plain paper FIR and he (P.W.5) returned to the Police Station with the accused and the seized articles. The seized articles were again resealed and kept at the P.S. Malkhana. The matter was then also reported to the Superintendent of Police. On 19.08.2001, the accused along with seized articles including the sample packet were sent to the Court. A prayer being made for sending the samples for chemical examination, one of the sample packets were sent for chemical examination CRLA No.327 of 2003 Page 3 of 11 under the forwarding letter of the Court. The report to the effect (Ext.7) was finally received. On completion of investigation, the Final Form was submitted placing the accused to face the trial for commission of offence under section 20(a)(b)(i) of the NDPS Act. 3. In the trial, the prosecution in total has examined five witnesses and has proved several documents which have been admitted in evidence and marked Ext.1 to 10. The defence being called upon, has also examined one witness as D.W.1 in order to establish his plea of denial and false implication. The Trial Court upon examination of the evidence let in by the prosecution and on perusal of the documents admitted in evidence and marked Exhibits from the side of the prosecution has held the prosecution case to have been established that it was the accused who had been engaged in cultivation of those Hemp Plants (Ganja Plants) in his bari. Accordingly, the accused has been held guilty for the said offence under section 20(a)(b)(i) of the NDPS Act for which he stood charged and faced the trial. The accused has been sentenced for the said commission as afroestated. 4.
Legal Reasoning
Learned counsel for the Appellant (accused) submitted that the evidence on record upon proper scrutiny do not reveal that it CRLA No.327 of 2003 Page 4 of 11 was the accused, who had grown those Hemp Plants in his bari land and was cultivating the same. He further submitted that the evidence of P.W.5 and other accompanying official witnesses do not go to show that those six numbers of Hemp Plants (Ganja Plants) had been grown in the bari of the accused by him and he was taking care of all those plants and looking after those. He submitted that when the official witnesses have no knowledge with regard to the exclusive possession of the bari land by the accused, no such other independent witness has come to depose that it was the accused who had grown those six numbers of Hemp Plants much less to say, on the bari land in his exclusive possession or control. He, therefore, submitted that on this ground, the conviction of the accused for cultivation of the Cannabis (Ganja Plant) cannot be sustained. He further submitted that the OIC (P.W.5), who was leading the party and had gone to raid the house of the accused has deposed to have collected the samples from out of those six plant materials which he seized at the spot, after the search was over and the plants were uprooted. He further submitted that the evidence as regards the safe keeping of those two sample packet is absolutely deficient and the record of the learned Magistrate does not reveal that the seals put on the sample packet were intact and untampered and that the learned Magistrate had CRLA No.327 of 2003 Page 5 of 11 compared those seals with the impression of the brass seal of P.W.5 which had been used in sealing the sample packet. He also submitted that the evidence of the prosecution thus stand deficient to show that from out of the two parts of the sample collected at the time of seizure, one part had been examined by the Chemical Examiner and, therefore, it has not been established that the samples collected at the spot have been found to the portions of the plants which had been seized at the spot and as such the report of the Chemical Examiner (Ext.7) according to him, cannot be pressed into service against the accused. He reiterated the submission that there is absolutely no evidence on record to establish the fact that it was the accused, who had grown six numbers of cannabis (Ganja Plants). In view of all these above, he urged that the judgment of conviction and order of sentence passed by the Trial Court cannot be sustained. 5. Learned counsel for the State refuting the above, contended all in favour of the finding of guilt against the accused as has been returned by the trial court. According to him, the evidence of the official witnesses including P.W.4 and P.W.5 being clear that those Hemp Plants (Ganja Plants) had been raised by the accused in his bari, the Trial Court has rightly convicted the accused for the said offence. He further submitted the sample packets having been received by the Chemical Examiner, since he CRLA No.327 of 2003 Page 6 of 11 has not noted therein that the seals put on same had in any way been tampered, there is no reason to hold that the sample packet had not been safely kept in the Police Malkhana after the seizure till the production before the learned Magistrate simply because learned Magistrate in the order has not so noted. 6. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction and order of sentence which have been impugned in this Appeal. I have also gone through the depositions of P.W.1 to P.W.6 as also the documents which have been admitted in evidence and marked Ext.1 to Ext.11. 7. In order to address the rival submission and judge the sustainability of the finding of guilt against the accused as has been returned by the trial court, first it becomes necessary to examine the evidence of P.W.5. P.W.5 is the leader of the raiding party. He was the then OIC of Hindol police station. He has stated that the bari of the accused being searched, six numbers of Hemp plants were found to have been grown therein and on being asked the accused uprooted the same. He does not have any personal knowledge with regard to the fact that the bari wherefrom he says to have detected those six numbers of Hemp Plants was under the exclusive possession and control of this accused. His evidence when is to the effect that the bari land was CRLA No.327 of 2003 Page 7 of 11 adjoining to the house of the accused and it is not stated by him that said bari land was situated on which side of the house of the accused. Likewise, P.W.4, ASI, who had accompanied P.W.5 having no personal knowledge with regard to the exclusive possession of the bari land to be resting with the accused has gone to say that when they raided the bari of the accused and then P.W.5 went inside the bari of the accused and found six numbers of ganja plants from inside that bari. He of course has stated that the bari was on the backside of the house of the accused. Having said that the bari was properly fenced with green plants, He (P.W.4) of course does not state further that it was not accessible to others except the accused. When P.W.5 states that on being asked accused uprooted the plants, P.W.4 says that the home guards and police constables uprooted the plants as per the direction of P.W.5. Independent witnesses (P.W.1) has not supported the prosecution case. P.W.2 who was also a member of the raiding party has stated that when they arrived, they saw accused standing in front of his house as against the version of P.W.4 and P.W.5 that the accused being called, came out of his house. Although P.W.2 says to have seen the Hemp Plants prior to the occurrence, he has not gone to state to have seen at any point of time before the search that it was the accused who was looking after or taking care of those plants in any manner by either cleaning the area where the plants had been CRLA No.327 of 2003 Page 8 of 11 grown or watering the plants or frequently putting his feet near those plants grown in the bari. He further states that the witnesses identified the accused and then only they could know his name. It is evidence that they went to the bari of the accused through a small lane adjacent to the house. His evidence is also not to the effect that the bari was having the fence in such a way that it was not accessible to anyone other than the accused or the inmates of the house of the accused. When P.W.3, the Amin has clearly stated that the records being perused, do not indicate the name of the accused in respect of the said land (spot), but as the police told him that the accused was residing at the spot, he had so mentioned in his report. This Amin (P.W.3) had also no personal knowledge as regards the fact that the accused was residing in the house which he demarcated. In his report (Ext.5), he has indicated that the accused had two other brothers. His evidence is that the spot was recorded in the name of Batakishore and Paramananda. 8. On over all analysis of the evidence as aforestated, this Court finds it extremely unsafe first of all to hold that the bari wherefrom the so called seizure of Hemp plants had been made was in exclusive possession of this accused and he was in care and control of the said bari which was only accessible to him but not others. Secondly, this Court finds that the evidence is not on CRLA No.327 of 2003 Page 9 of 11 the score that the accused either had grown those Hemp plants or that he was looking after those plants during that period as there is no such evidence to show that the accused was taking care of those plants by doing some such activity in that direction either by cleaning the place or by watering those plants or watching those plats for their proper growth etc. 9. In that view of the matter, it is held that the Trial Court is not right in holding the accused guilty for cultivation of those seized plants even if repelling the contention of the learned counsel for the Appellant; we take those to be the Hemp Plants. Having said as above, the next limb of the submission of the learned counsel for the Appellant with regard to the safe keeping of the sample packets and that it has not been proved beyind reasonable doubt that those samples collected have been examined by the chemical examiner is no more stand as the need to be further addressed. 10. For all these aforesaid, I am of the considered view that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 11. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 16.12.2003, passed by the CRLA No.327 of 2003 Page 10 of 11 learned Judge, Special Court-cum-Sessions Judge, Dhenkanal in Special Case No.04 of 2001 are hereby set aside. (D. Dash), Judge Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Jun-2024 12:28:33 CRLA No.327 of 2003 Page 11 of 11