Allowed¶33

Bhakta Mahala v. State

Orissa HC1 Jul 2024CRA/53/1992

Case brief

AI extract

What is this about?

Single-judge criminal appeal (CRA No.53 of 1992) before the Orissa High Court (Justice D. Dash, decided 01.07.2024) acquitting an appellant convicted under NDPS Act section-20(a)(i) for cultivating two ganja plants; themes: attribution of cultivation to the accused, exclusive possession of land, Government land and Revenue Inspector testimony, absence/inconsistent presence of accused at the Bari, insufficiency of P.W.1-P.W.3 evidence, setting aside Sessions Judge Balangir conviction and one-year RI sentence dated 07.02.1992; appeal filed under Section-36-B NDPS Act read with Section-374 CrPC.

What did the court decide?

Appeal allowed; appellant acquitted of the charge under section-20(a)(i) of the NDPS Act; judgment of conviction and order of sentence dated 7th February 1992 of the Sessions Judge, Balangir in Sessions Case No.69 of 1991 set aside.

Bhakta Mahala Vs State — Narcotics (NDPS) | Orissa HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the finding of guilt recorded by the Trial Court - that the appellant grew the two seized ganja plants at the Bari and is liable under section-20(a)(i) of the NDPS Act - is sustainable on the evidence of the prosecution witnesses.

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Court's answer

Per P.W.1, when the police arrived they were led to the accused's Bari but the accused was not present there; on this showing the accused is not connected with the Bari.

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Ratio / Principle

Per P.W.2 (Revenue Inspector), the land in question is a piece of Government land and he could not say whether the accused was in possession of it, no office record attributing possession of that Government land to the accused.

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Key takeaways

P.W.3's assertion that the accused was present at the Bari and took all care of the plants for their growth is contradicted by P.W.1 and rests on no direct/personal knowledge, nor does P.W.3 cite any prior occasion on which he watched the accused engaged in such activity.ratio¶28
The evidence of P.Ws.1, 2 and 3 does not suggest that the land was in the exclusive possession of the accused, that others lacked access to it, or that no one could enter the said Bari.ratio¶31

Detailed headnote1 paragraphs

CRA No.53 of 1992 (High Court of Orissa at Cuttack, D. Dash, J., judgment dated 01.07.2024): Appeal under Section-36-B of the NDPS Act, 1985 read with Section-374 CrPC, 1973 against conviction under section-20(a)(i) NDPS Act (one year rigorous imprisonment) for growing two ganja plants at the accused's Potala Bari - ALLOWED; conviction and sentence dated 07.02.1992 of the Sessions Judge, Balangir (Sessions Case No.69 of 1991) set aside. P.W.1 stated the accused was not present in the Bari when police arrived, disconnecting him from the Bari; P.W.2 (Revenue Inspector) deposed the plot was Government land with no record attributing its possession to the accused; P.W.3's claim that the accused tended the plants lacked direct personal knowledge and any cited prior occasion of watching such activity. Exclusive possession of the land by the accused and exclusion of others' access not being established, cultivation of the plants could not be attributed to the accused, who was held entitled to acquittal.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRA No.53 of 1992

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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 7^th February 1992 passed by the learned Sessions Judge, Balangir in Sessions Case No.69 of 1991.

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Bhakta Mahala …. Appellant

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-versus-

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…. State of Odisha Respondent

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Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode:

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========================================================= For Appellant Mr. S.C. Mohanty, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel.

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CORAM:

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MR. JUSTICE D. DASH DATE OF HEARING :20.06.2024: DATE OF JUDGMENT:01.07.2024

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D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 7^th 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.

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Page 1 of 5

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CRA NO.53 OF 1992

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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 N DPS Act’) and accordingly, he having been convicted thereunder had been sentenced to undergo rigorous imprisonment for a period of one year.

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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.

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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.

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Accordingly, the accused being convicted for the said offence under section-20(a)(i) of the NDPS Act, has been sentenced as aforestated.

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Page 2 of 5

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CRA NO.53 OF 1992

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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.

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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.

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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.

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Page 3 of 5

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CRA NO.53 OF 1992

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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.

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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.

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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.

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Page 4 of 5

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CRA NO.53 OF 1992

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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.

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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 section20(a)(i) of the NDPS Act. Therefore, the impugned judgment of conviction and order of sentence are hereby set aside.

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The Appeal is allowed. The judgment of conviction and order of sentence dated 7^th February 1992 passed by the learned Sessions Judge, Balangir in Sessions Case No.69 of 1991 are hereby set aside.

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(D. Dash), Judge.

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Signature Not Verified Narayan

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Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 09-Jul-2024 18:55:32

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Page 5 of 5

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CRA NO.53 OF 1992

Bhakta Mahala v. State

Case brief

What is this about?

What did the court decide?

Bhakta Mahala v. State

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

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