Allowed

Mukunda Konhara v. State.

Orissa HC10 May 2017CRLA/101/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellant who was convicted under the NDPS Act. The court held that the prosecution failed to prove the appellant's exclusive possession of the house and the evidence regarding seizure, sealing, and safe custody of the drugs was tainted by discrepancies and lack of impartiality.

What did the court decide?

The impugned judgment of conviction and sentence set aside; appellant acquitted and set at liberty forthwith.

Mukunda Konhara Vs State. — Narcotics (NDPS) | Orissa HC (2017)

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ORISSA HIGH COURT, CUTTACK

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CRLA NO. 101 OF 2010

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From the judgment and order dated 15.02.2010 passed by Shri J.J. Patro, Sessions Judge-cum-Special Judge, Phulbani in G.R. Case No.1 of 2008.

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Mukunda Konhara .....…. Appellant -VersusState of Orissa ……… Respondent For appellant - Mr. S.K. Dwibedi, Advocate For respondent - Mr. P. Pattnaik, Additional Government Advocate

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PRESENT:-

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THE HON’BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Judgment: 10.05.2017 S.PUJAHARI, J. The appellant having been convicted for

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commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for a further period of two years by the learned Sessions Judgecum-Special Judge, Phulbani vide judgment of conviction and order of sentence dated 15.02.2010 passed in G.R. Case No.1 of 2008, has preferred this appeal.

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2. Prosecution case placed before the trial court that on 02.01.2008 at about 12.30 noon, P.W.8, Officer-in-charge, Phiringia Police Station with police raiding party performing patrolling at village- Nuapadar to keep vigil over communal violence that erupted in that locality. P.W.8 found in a flick the appellant running away from his house towards forest. Suspecting his involvement in communal violence, P.W.8 chased him, but could not apprehend when the appellant concealed his presence in a nearby forest. However, the over suspecting police rushed towards his house where they found the thatched room was under lock and adjoining terrace house left open. When peculiar odor of ‘Ganja’ emitting from the open window of that terrace house, P.W.8 climbed over the roof of the terrace and found huge quantity of ‘Ganja’ spread over the roof for processing. After observing all formalities of house search, P.W.8 in presence of Executive Magistrate (P.W.1) and C.I. of Police, Phulbani (P.W.7) broke open the lock of the thatched house and opened the door of that terrace house. They found 7 packets of ‘Ganja’ staked in that unlocked terrace room and 7 bags of ‘Ganja’ spread over that roof top. P.W.8 also found 9 bags of ‘Ganja’ staked in that thatched house. In presence of independent witness, P.W.6 and official witnesses, P.Ws.1 and 7 after observing all formalities of search and seizure, P.W.8 took

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weighment of 12 bags and found contained altogether 115 Kgs. of ‘Ganja’. P.W.8 thereafter drew sample of 25 grams each from 23 bags and thereafter sealed the recovered bags of ‘Ganja’ as well as sample packets affixing his paper seal and impression of his brass seal. Since the appellant could not be traced, P.W.8 prepared seizure list in his absence, released the brass seal in favour of an independent witness, drew up plain paper F.I.R., returned to the Police Station, deposited the seized articles in Malkhana, registered the case and on 29.06.2008 made over charge of investigation to P.W.7 who sent the sample packets to the Forensic Science Laboratory under forwarding report and on completion of investigation, submitted charge-sheet. The appellant pleaded not guilty to the charge and took the plea of denial in the trial. In order to substantiate the charge, prosecution examined 10 witnesses, exhibited 17 documents and produced XLVI Material Objects. Two witnesses were also examined on behalf of the defence in support of its plea of false implication. The learned trial court placing reliance on the evidence of P.Ws.7 and 8 and other prosecution witnesses held the prosecution to have established the charge against the appellant.

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3. In assailing the impugned judgment of conviction and order of sentence, it was argued by the learned counsel for the

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appellant that so far as the allegation of recovery of 23 numbers of gunny bags containing ‘Ganja’ from the house of the appellant is concerned, the prosecution has miserably failed to establish that the same was recovered from the exclusive and conscious possession of the appellant. It was further argued that there is no iota of evidence indicating that the house in question was in exclusive possession of the appellant. It was also argued that P.W.8’s evidence does not indicate that allegedly seized articles were properly sealed and kept in safe custody till its production in Court on 07.02.1008. It was further contended that the prosecution should have ruled out the possibility of tampering with the seized articles by leading cogent evidence to the effect that the articles were properly sealed at the spot and the brass seal was kept in the custody of independent witness. In the absence of such evidence, it would not be safe to infer that what was examined in the Laboratory was recovered from the exclusive possession of the appellant. The learned counsel for the appellant also contended that the prosecution has failed to establish compliance of provisions under Sections 42, 52, 55 and 57 of the Act by the Investigating Officer. Lastly, it was contended that P.W.1 himself having conducted search, effected seizure, kept the sample packets in his own custody, should not have proceeded with the

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investigation in order to ensure fair trial and impartiality. In support of his contention, the learned counsel for the appellants has relied upon several decisions.

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4. In reply, the learned counsel for the State submitted that the trial court having assigned cogent reasons in support of its findings recorded in the impugned judgment and the reasoning being based on legally acceptable evidence and law, the impugned judgment of conviction and order of sentence, as such, warrant no interference of this appellate Court.

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5. On perusal of the evidence on record, particularly the evidence of P.W.8 and other official witnesses, it is admitted that alleged seizure was made on 02.01.2008 at about 12.30 noon in absence of the appellant. Incidentally, no personal article belonging to the appellant was seized by P.W.8 or P.W.7 to show that the appellant was in exclusive possession of the house in question. P.W.8 has stated that he broke open the lock of the thatched room of his dwelling house, but neither the broken lock seized nor produced in Court. The evidence of P.W.8 also revealed that the thatched room was only locked but pucca house was unlock and he smelt ‘Ganja’ from the window of that room. However, he stated that he climbed over the roof and found huge quantity of ‘Ganja’ spread over. Moreover, according to the prosecution, since a Landline telephone connection

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bearing No.268453 was taken in the name of the appellant in that house, he was convinced that the appellant was in exclusive possession of the house in question. To substantiate their plea, the prosecution had examined P.W.2, the then S.D.O. Telephone, Phulbani who has produced a duplicate copy of telephone bill relating to Phone No.268453 recorded in the name of Mukunda Konhara of Kalasapadar marked as Ext.3. It relates to the period from 01.08.2008 to 31.08.2008. P.W.7, the Investigating Officer, however, did not notice if there was any telephone connection available to the questioned house on the date of his visit on 26.07.2008. P.W.8, the Officer who detected and recovered the contraband articles from the questioned house admittedly has not seized any telephone instrument from the house in question. P.W.4, the R.I., Nuapada had demarcated the questioned land on 16.12.2008. His evidence reveals that the case land appertains to Plot No.24 and Khata No.91 and stood recorded in the name of the Government as “Abadijogya Anabadi” where he found a house over that land. His evidence that the appellant possessed that land, however, is inadmissible in evidence he having no personal knowledge about such possession. That P.W.4 had no personal knowledge about possession is brought on record in cross-examination where he was candid enough to admit that a person who was standing

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nearby that locked house disclosed before him that the appellant was in possession of that house. However, he has not named that person from whom he ascertained the factum of possession. That person is also not examined in this case. It is not disputed that once possession is established, presumption under Section 35 of the Act applied similar to the possession in terms of 54 of the Act where presumption is available to be drawn for possession of illicit articles. [ See:- Madan Lal & another vrs. State of Himachal Pradesh, (2003) 26 OCR (SC) 287].

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6. The Supreme Court in the case of Megha Singh vrs.

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State of Punjab; (2003) 26 OCR (SC) 523 has held as follows :-

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“The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes.

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The word ‘conscious’ means awareness about a particular fact. It is a state of mind which is deliberate or intended.

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As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person whom physical possession is given holds it subject to that power or control.

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The word ‘possession’ means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that

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where a person keeps his fire arm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD)).

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Once possession is established, the person who claims that it is not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. V. State of Himachal Pradesh, (2003) 26 OCR (SC) 287.”

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7. Here, no personal belonging of the appellant or any of his family members seized from that room. Admittedly, the appellant was Sarpanch at the relevant time. No office document or any other materials incriminating the appellant found in that house. Thus, not only there is no evidence on record to indicate that the room from which 23 numbers of bags were recovered, was in exclusive possession of the appellant but also evidence of P.Ws.7 and 8 as regards the house from which M.Os.I to XXIII were recovered is discrepant. Broken locks neither seized nor produced. Even if P.W.8 had seen the appellant running away from that house is believed, appellant’s mere presence near about the house does not establish the ownership or possession. It is incumbent upon the prosecution to establish by cogent and reliable evidence that the appellant was in exclusive possession of the contraband articles. In

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absence of such evidence, there is no scope to hold that 23 bags containing ‘Ganja’, M.Os.I to XXIII were recovered from the appellant’s possession. In this context, the decisions in the case of Anadi Charan Parida v. State, (1997) 12 OCR 268 and Lingaraj Mishra v. State, (1995) 8 OCR 264 may referred to.

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8. Adverting to other material aspects as highlighted in course of argument, on perusal of the evidence on record, particularly the evidence of P.W.8 who seized the alleged ‘Ganja’, it is disclosed that he had seized 23 packets from the questioned house on 02.01.2008 at around 12.30 noon while he was performing duty to combat communal violence erupted in that locality. It appears from his evidence that the articles seized were never forwarded along with the appellant to the Court on that day or on the next day of seizure. Only on 03.01.2008 he entered the fact in the Station Diary vide Entry no.46 and said to have kept the seized articles in P.S. Malkhana vide Malkhana register vide Entry No.1/2008 under Ext.14. Only on 07.02.2008 P.W.8 produced the seized 23 packets and 46 sample packets before the Court for sending the sample packets for chemical examination. However, the sample packets were not forwarded to the chemical examiner on 07.02.2008 as ordered by the Court, but only on 11.02.2008 sample packets with forwarding letters were sent to the chemical examiner.

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From 07.02.2008 to 11.02.2008 P.W.8 had kept the sample packets and forwarding report, Ext.15 in his possession. It emerged from paragraph-8 of his examination-in-chief. Totality of the evidence of P.W.8 reveals that he made seizure on 02.01.2008, brought the seized articles and sample packets to the Police Station, deposited the same in the P.S. Malkhana on 03.01.2008. He said to have removed the seized article and sample packets from Malkhana on 07.02.2008 for production before the Court for onward transmission of the sample packets for chemical examination. Despite direction of the S.D.J.M., Phulbani to send the seized articles under forwarding report (Ext.15) on 07.02.2008 P.W.8 retained the sample packets in his personal custody from 07.02.2008 till 11.02.2008. Though sample packets were not re-deposited in Malkhana on 07.02.2008 and again removed on 11.02.2008. P.W.8 was in charge of Malkhana and was the custodian of the register and keys of Malkhana. The evidence of P.W.1 reveals that after putting seal on the seized articles and sample packets P.W.8 kept the brass seal with him. In paragraph-2 of his crossexamination, this witness admitted and stated that “the brass seal was kept by OIC himself”. Turning to the evidence of P.W.8, in paragraph-3 of his examination-in-chief this P.W.8 has deposed that he kept the specimen of brass seal used by

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himself in zima of one Bali Pradhan (P.W.6) under zimmanama (Ext.7). P.W.6 is that Bali Pradhan. He having not supported the prosecution case, with permission of the Court prosecution put leading question to this witness. No suggestion was given to this witness that P.W.8 either released the specimen of brass seal or actual brass seal in his zima. It was only suggested to him that he was the weigher of the alleged ‘Ganja’ and weighing instruments were kept in his zima. So, the evidence of P.Ws.1, 6, 7 and 8 reveals that P.W.8 being the custodian of Malkhana had also kept the brass seal with him. No Malkhana register produced and proved in this case. No brass seal also produced and proved in this case. When P.W.8 was in possession of brass seal and when the sample packets were kept in his personal possession, as admitted by him from 07.02.2008 to 11.02.2008 and in absence of any evidence as to its safe custody, it is hazardous to believe that the representative samples of the alleged seized ‘Ganja’ were actually produced before the chemical examiner for its examination and opinion. Moreover, the evidence of P.W.8 revealed that on 11.02.2008 he sent the sample packets with forwarding report to SFSL, Bhubaneswar through constable 290, Pradip Nayak. In fact Constable 290 is P.W.9 (Pradeep Kumar Behera) not “Pradip Nayak”. He has deposed that the Investigating Officer (P.W.7) had seized the

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Malkhana register, the Station Diary register, Command certificate of Phiringia Police Station on production by the O.I.C. of Police Station and prepared seizure list, Ext.8 where he has signed the same under Ext.8/2. This witness was recalled by the prosecution for further examination where he has added that on 11.02.2008 on the direction of the OIC he had carried the seized sample packets and forwarding letter to the Office of the SFSL, Bhubaneswar. Ranjit Naik was the then OIC of Phiringia Police Station as evident from his evidence. His evidence also reveals that OIC, Ranjit Naik had handed over him the forwarding letter and the sample packets for onward transmission, but the evidence of P.W.8, the Investigating Officer reveals that he kept those sample packets in his personal possession from 07.02.2008 to 11.02.2008 when he made over those packets to this P.W.9. This also creates a doubt as to the safe custody of sample packet before it is made over to SFSL, Bhubaneswar. Since P.W.8 was in charge of Malkhana being OIC and, therefore, was also the custodian of Malkhana register. He was in possession of brass seal althrough as brought on record. The sample packets being in his personal custody, as admitted, from 07.02.2008 to 11.02.2008, tampering of the seal packets cannot be ruled out.

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9. In such scenario, no legal evidence has been led to show that the articles which were seized from the questioned house on 02.01.2008 were kept in Police Malkhana and in safe custody in the Police Station, particularly when P.W.8 is the Officer who said to have detected the contraband articles, he was also the Investigating Officer, he also being the OIC of the Phiringia Police Station, he was in charge of Malkhana, he retained the brass seal and being charge of Malkhana was the custodian of Malkhana register and non-production of brass seal, Malkhana register and no evidence as to safe custody of the seized articles casts a serious aspersion on the bonafides of the prosecution. When the sample packets were kept in personal custody of P.W.8 from 07.02.2008 to 11.02.2008 and when there is abnormal delay in dispatch of seized articles and sample packets from the date of seizure on 02.01.2008 till its production before the Court on 07.02.2008 after such long delay and virtually no explanation is there with regard to the safe custody of the articles seized and what actuated the I.O. (P.W.8) not to produce the articles seized before the Special Judge along with the appellant on 02.01.2008 or on 03.01.2008, no convincing evidence is brought on record to show that the sample was drawn from the alleged seized packets and subsequently the sample packets were not

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tampered with, P.W.8 himself being in possession of brass seal as well as the custodian of Malkhana register. The aforesaid discrepancies coupled with the fact that the independent witnesses cited did not support the seizure, makes the evidence of P.W.8 with regard to the seizure of ‘Ganja’ from the possession of the appellant is vulnerable. Even for the sake of argument, if the evidence of the I.O. (P.W.8) is accepted that he had seized the M.Os.I to XXIII said to be containing ‘Ganja’ from the possession of the appellant, till then there is no convincing evidence to show that any representative sample drawn therefrom were examined by the chemical examiner.

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10. Another gross infirmity in this case is that P.W.7 took charge of investigation of the case from P.W.8 on 29.06.2008. This P.W.7 has merely seized Malkhana register, command certificate, Station Diary register in course of his investigation. The major part of the investigation was conducted by P.W.8 who himself was the detecting officer, in charge of Malkhana and he had kept the brass seal with him althrough. That apart, Ext.14 reveals that there is only one entry in Malkhana register vide Ext.1/8. When the seized articles and samples were removed from Malkhana for its production before the Court not entered in the Malkhana register, there being no such entry forthcoming. P.W.8 has also admitted to have kept in his

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personal custody, the sample packets from 07.02.2008 to 11.02.2008. These are all material infirmities writ large on record. It is the bounden duty of the prosecution to prove that not only the seized contraband ‘Ganja’ was properly seized/sealed and kept in safe custody prior to its production before the Court for sending the sample packets to the chemical examiner for analysis but also to prove that the ‘Ganja’ was produced before the Court and sent for chemical investigation were the very same ‘Ganja’ which was seized from the possession of the appellant unless the prosecution proves the same by leading cogent, truthful and unimpeachable evidence, there would be chance of tampering with the contraband articles and in that event benefit shall be extended to the appellant, who incidentally has taken a bold plea that a false case has been instituted against him in course of that communal disturbance. An officer conducting search and seizure under the Act is bound to follow the procedure envisaged under the law and cannot act in breach of the statutory provisions. That apart, P.W.8 should not have investigated the case as he conducted search and seizure of the contraband articles and remained in charge of Malkhana and retained the brass seal althrough.

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11. The very Excise Officer who appears to have effected the seizure from the possession of the appellants, investigated the case. The practice of investigation being conducted by the same Officer who happens to be an ocular eyewitness has been looked with disfavour by the Courts. When the same Officer who claims to have made the search and seizure also investigated the case, his evidence is required to be looked with great care and caution.

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12. The Apex Court in the case of Megha Singh vrs. State of Haryana, AIR 1995 SC 2339, have held as follows :-

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“We have also noticed another disturbing feature in this case. P.W.3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the catridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But, it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.”

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So also, in the case of State of Orissa v. Managobinda Sahoo, ILR (2009) 1 Cuttack 606 , this Court relying upon decision of the Supreme Court in Jamuna Chaudhary & Ors.

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v. State of Bihar, (1974) 3 SCC 774, have held that for the purpose of fair and impartial investigation, it must be ensured that the investigation is carried out by a person who is

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absolutely impartial, unbiased and unmotivated. The Rule of law makes it unthinkable to allow a witness to a crime to be the investigator into the said crime. In Nathiya and another v. State, 1992 (1) Crimes 537, Rajasthan High Court has deprecated the practice of investigation of a case under the Act by the selfsame person who made recovery of contraband. 13. Moreover, when the articles were allegedly seized on 02.01.2008 and produced before the Court long thereafter on 07.02.2008 and from that date till 11.02.2008 P.W.8 retained those sample packets in his personal custody and there is no evidence of its safe custody to rule out tampering of the contents and when no explanation is given with regard to such long and abnormal delay, prosecution has failed to establish the proper collection of sample, proper sealing of the seized articles as well as sample packets so as to establish beyond reasonable doubt that the articles recovered from the possession of the appellant were the subject-matter of chemical examination. In this context, decisions in State of Rajasthan v. Gurmail Singh, 2005 (1) Crimes 346 (SC), Purna Chandra Suar v. State of Orissa, (2000) 19 OCR 225 and Abhimanyu Jena v. State, (1997) 13 OCR 268 may be referred to.

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14. Hence, on reappraisal of the evidence on record, this Court is of the considered opinion that the trial court has

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grossly erred in appreciation of the evidence on record to come to a conclusion that the appellant was found to be possessing ‘Ganja’ of huge quantity inviting punishment under Section 20(b)(ii)(C) of the Act.

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15. Resultantly, for the aforesaid reasons, this Criminal appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellant are set-aside. Consequently, the appellant is acquitted of the charge and he be set at liberty forthwith, if in custody, unless his detention is required otherwise.

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L.C.R. received be sent back forthwith along with a copy

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of this Judgment.

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……………………..… S.Pujahari, J.

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Orissa High Court, Cuttack, The 10^th day of May, 2017 /MRS

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Mukunda Konhara v. State.

Case brief

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Mukunda Konhara v. State.

Case brief

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