Orissa High Court
Srikant Dash vs State Of Odisha on 20 June, 2024
Author: D.Dash
Bench: D.Dash
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.
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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-
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
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
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
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. Learned counsel for the Appellant (accused) submitted that
the evidence on record upon proper scrutiny do not reveal that it
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
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
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
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
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
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
learned Judge, Special Court-cum-Sessions Judge, Dhenkanal in
Special Case No.04 of 2001 are hereby set aside.
(D. Dash),
Judge
Gitanjali
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA : CUTTACK
Date: 27-Jun-2024 12:28:33
