The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.122 of 2003 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Narottam Mirdha ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. A.K. Dash, Advocate For the Respondent : Mr. S.J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing and Judgment: 23.10.2025 S.S. Mishra, J. The sole appellant Narottam Mirdha has assailed the judgment of conviction and the order of sentence dated 21.04.2003 passed by the learned Additional Sessions Judge, Sambalpur in T.R. Case No.88/27 of 2000-2001 (Arising out of Raikakhol S.I. of Excise P.R. No.49 of 2000-2001) whereby he has been convicted for the alleged commission of the offence punishable under Section 20(a)(i) of the N.D.P.S. Act and sentenced to undergo R.I. for two years and to pay a fine of Rs.2000/- (Rupees two thousand), in default, to further undergo R.I. for two months. 2. The prosecution case in terse and brief is that on 24.10.2000 at about 9.30 A.M., the Excise Sub-Inspector, Rairakhol (P.W.6) along with his staff namely the Constable (P.W.3) being accompanied by the Executive Magistrate (P.W.5) and the APR force went to the village Brahamanipali and raided the house of the accused Parameswar Mirdha, who was residing with his son accused Narottam Mirdha. Seeing the raiding party, the father of the accused Parameswar fled away from the spot. The Excise staff searched the house and bari in presence of the accused Narottam, the Executive Magistrate (P.W.5) and the independent witnesses (P.Ws.1 and 2) and saw 8 numbers of ganja plants of height ranging from 5 feet to 7 feet in the bari. When the accused Narottam confessed to have raised those plants without any authority, the Excise staff seized those plants (M.O.I) by uprooting the same and prepared the seizure list vide Ext.2. Hence, the F.I.R. 3. After the investigation, the charge sheet was filed against Parameswar Mirdha and the present appellant. Page 2 of 10 4. The prosecution examined six witnesses. Out of whom, P.Ws.1 & 2 were the independent witnesses to the search and seizure of the ganja plants. Both the accused have not supported the prosecution case. P.W.3 was the Constable, who accompanied the Excise Inspector. P.W.5 was the Executive Magistrate, in whose presence, the search and seizure was taken place, whereas P.W.4 was the R.I., who stated to have demarcated the land. The defence took a stance of complete denial and claimed trial. 5. The learned trial Court, after analyzing the evidence on record, arrived at the conclusion that the prosecution could not prove its case beyond all reasonable doubt so far as co-accused Parameswar Mirdha is concerned and accordingly acquitted him. However, the present appellant has been found guilty of the offence punishable under Section 20(a)(i) of the N.D.P.S. Act. 6.
Legal Reasoning
The learned trial Court, in the concluding paragraph has observed as under: “9. In view of the confession of the accused Narottam before the officers under N.D.P.S. Act and his statement u/s. 313 Cr. P.C. in Court that the said house and bari being in his occupation and possession, and there being consistent evidence from the side of prosecuting party that they have recovered the ganja plants from the said bari; and accused Page 3 of 10 having confessed to have raised those plants I should say a clear cut case u/s. 20(a)(i) of the N.D.P.S. Act is made out against accused Narottam Mirdha. implicating himself and his 10. Coming to accused Parameswar Mirdha I should say that there is no documentary evidence that the said bari and house is in his occupation or possession. There is also no confession from his side about raising of plants. If that be so I should say there is no clear material indicating that the father accused is in possession of that bari and he raised those plants. A question may arise the confessional statement of accused Narottam father Parameswar can be utilized against Parameswar but it is held in the decision of N. Nageswar Rao referred to above that it is true confession of a co-accused is relevant u/s. 30 of Evidence Act but such confession of co-accused cannot be considered as substantive material to implicate the co-accused in the trial and it can be considered as lending assurance to the other material on record if available. In this case there being no other material on record implicating the accused Parameswar it cannot form the basis of conviction against Parameswar. Further I should say that the evidence of Excise S.I. does not suggest clearly if accused Narottam while confessing implicated the accused Parameswar. In this view of the matter the benefit of doubt is given to accused Parameswar.” 7. Being aggrieved by the aforementioned observation leading to the conviction and sentence passed against the appellant, the appellant has filed the present appeal.
Legal Reasoning
8. Mr. A.K. Dash, learned counsel appearing for the appellant had taken me to the evidence of all the prosecution witnesses and submitted that even if the prosecution evidence is taken at its face value, no case Page 4 of 10 under Section 20(a)(i) of the N.D.P.S. Act is made out against the appellant. Moreover, relying upon the same set of evidence, the learned trial Court has acquitted the co-accused Parameswar Mirdha and he has also pointed out in paragraph-9 of the judgment which shows that the learned trial Court persuaded to convict the appellant on the basis of the alleged confession made by the accused appellant himself and his statement recorded under Section 313 of the Cr. P.C. He submitted that the learned trial Court has clearly gone wrong in appreciating the evidence adduced by the prosecution. 9. The learned trial Court, while appreciating the evidence of the R.I., the Executive Magistrate and the Investigating Officer, P.W.6 and Ext.1, the report of the R.I. which is the backbone of the prosecution case, arrived at the following findings: “7. The prime question that arises now for consideration is who cultivated those plants. There is no direct evidence of any person who saw the accused raising or cultivating those plants but prosecution in order to show that Parameswar Mirdha was in possession of the said bari land and therefore he and his son must have necessarily cultivated those plants relied upon the report of R.I. (Ext.1) to prove that the ganja plants were standing on Plot No.595 and 607 and those plots as per the revenue record were in possession of Parameswar Mirdha. On the other hand, the learned counsel for the defence urged that Page 5 of 10 Ext.1 shall be totally excluded from consideration as because it has no evidensary value. The contention of the defence cannot be said to have without any force for the simple reason that the learned Executive Magistrate (P.W.5) who deposed in this case stated the measurements of the land were taken place immediately after the plants were seized and it is the R.I. (P.W.4) in person had measured that land in his presence. But unfortunately the R.I. who is examined as P.W.4 denied to have undertaken any such measurements. According to him it is the collection Moharir Prafulla Patra who has demarcated the land. The said collection Moharir Prafulla Patra is not examined in Court and his report is not existing on record as per the version of Investigating Officer (P.W.6). If that be so I should say Ext.1 which is signed by the R.I. who has not actually visited the spot and demarcated the land cannot be taken note of to say that the said bari land is appertaining to plot No.595 and 607. Assuming for the sake of argument that Ext.1 can be taken into account even then also Plot No.595 is said to be in the forcible possession of one Dhanapati Mirdha, but not the present accused as per the remarks column of Ext.1. It is only in respect of plot No.607, there is an entry that accused Parameswar Mirdha is in possession.” 10. On the face of the aforementioned finding, one thing is apparently clear on record that the contraband ganja plants were allegedly standing on the Plot Nos.595 and 607. The evidence as emanating from the record shows that Plot No.607 was not in the possession of the appellant. In so far as the plot no.595 was concerned, the evidence regarding the ownership and possession over the said plot by the appellant is shaky and doubtful. Page 6 of 10 11. The Investigating Officer, P.W.6 in his examination in chief in paragraph-7 has stated as under: “7. I have not mentioned the numbers of plot from which the plants were seized. Ext.1 shows the ‘Dakhal’ of the accused Parameswar Mirdha in respect of the plots No.607 and 608. However it was recorded in the name of Government as ‘Rakhita’. I cannot say who are the boundary owners of plot Nos.607 and 608 as I have not mentioned the same in my C.D. I have not examined the R.I.R. or the collection Moharir to find out who are the adjoining owners of those plots. It is not a fact that the bari from where the plants were removed were four feet away from the residence of the accused (witnesses says that the distance between the front door of the house of the accused and the bari door at is four feet).” 12. The R.I., P.W.4 in his evidence has stated that he has not gone to the spot where the contraband ganja plants were standing and he has also not demarcated the land. He has stated that the demarcation of the land was done by the collection Moharir. This part of the testimony of P.W.4 is directly running contrary to the version of the Executive Magistrate, (P.W.3). P.W.3 in his testimony has stated that the demarcation of the land in which the cultivation of the contraband ganja had taken place was done by the R.I. (P.W.4). He has also stated in his evidence that there were 8 trees standing in the plots and the accused illegally raised ganja plants on their land. The Excise Officials seized those ganja plants Page 7 of 10 by uprooting the same. The said plants were of 5.5 to 7.5 feet. At the time of seizure of the ganja plants, the appellant was present. He has further stated that on the requisition of the police, he directed P.W.4, the R.I. to demarcate the land and to identify the same. The measurement of the land was taken place immediately after the plants were seized by uprooting the same. The R.I. (P.W.4) himself measured the land in his presence. That part of the evidence of P.W.5 directly runs contrary to the statement of P.W.4, the R.I., who has denied the fact that he had gone to the spot and had measured the land/plots. 13. P.W.3 is the Constable, who accompanied P.W.6. He in his testimony has stated that he cannot say the plot number and khata number of the land used for cultivation of the ganja and he has also denied that he had any knowledge regarding who is the owner of the land in which the cultivation of ganja had taken place. 14. Surprisingly, the two independent witnesses, i.e., P.Ws.1 and 2, who were the witnesses to the search and seizure have not supported the prosecution. Therefore, the search and seizure has come under the cloud of doubt. It is also eminent from the evidence of P.W.6 that the part of Page 8 of 10 the plot on which the ganja plants were standing belongs to the co- accused Parameswar Mirdha. In paragraph-6 of the evidence of P.W.6, he has stated as under: “5. Before I have conducted the actual search of the bari and the house and when I have started interrogating about the ownership of the house then the accused Parameswar Mirdha escaped from the spot. It is disclosed in the investigation that the house and the bari was appertaining to plots No.607 & 608 of Khata No.57 belonging to accused Parameswar Mirdha. He was found absconding right from the beginning and as such I could not arrest him.” 15. Conjoint reading of the evidence of all the witnesses makes it abundantly clear that the prosecution could not prove as to at which plot, the plants were standing and whether the plots indeed belongs to the appellant or not particularly when the Investigating Officer himself says that the plot has been recorded in the Government khata. At the same time, the part plots i.e. plot Nos.607 and 608 belong to the co-accused Parameswar Mirdha. Therefore, nothing is coming to fore regarding the present appellant and nothing is coming on record regarding the ownership of the land. In the absence of the evidence beyond all reasonable doubt and the fact that the search and seizure has not been proved by the prosecution, the evidence of the official witnesses like Page 9 of 10 P.Ws.4 and 5 are completely contradictory in nature, the conviction recorded by the learned trial Court against the appellant is not sustainable. 16. Hence, on the basis of the evidence on record, this Court is bound to arrive at a conclusion that the appellant is not guilty of the charge. 17. Accordingly, judgment dated 21.04.2003 passed by the learned Additional Sessions Judge, Sambalpur in T.R. Case No.88/27 of 2000- 2001 (Arising out of Raikakhol S.I. of Excise P.R. No.49 of 2000-2001) is set aside and the appellant is acquitted of the charges. The accused- appellant was on bail vide order of this Court dated 13.05.2003 passed in M.C. No.208/03 on a bail bond of Rs.20,000/- (Rupees twenty thousand). The same stands discharged.
Decision
18. Accordingly, the Criminal Appeal stands allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 23rd of October, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 30-Oct-2025 19:49:25 Page 10 of 10