STATE OF ORISSA Vs. KHAGESWAR KONHAR

JUDGEMENT

(1.) THE State in this appeal has called in question the order of acquittal passed by the learned Special Sessions Judge, Kandhamal -Boudh, Phulbani in S.T. No. 93 of 1996 acquitting the respondent of the charge under section 20(a)(i) of the ND & PS Act 1985. The case of the prosecution in short is that on 04.09.1996 morning, the Sub Inspector of Excise (P.W.4) along with other excise staff and Tahasildar had gone to village Doni and in course of patrolling, they found ganja plants to have been grown in the backyard of the respondent. So, they made an entry to the backyard with a person of the locality and found five numbers of ganja plants to have been grown there. According to the case of the prosecution those plants were grown by the present respondent in his backyard. The plants were then uprooted and seized followed preparation of seizure list and service of the copy of the same upon the respondent. The ganja plants being uprooted were packed and sealed. The respondent then being arrested was forwarded to the court where the seized packets were produced. On the prayer of the prosecution, sample from the seized plants were collected by the learned S.D.J.M. and sent for chemical examination. The report came in the affirmative. That is how the respondent faced the trial. In the trial the respondent took the plea of complete denial as having no connection with those ganja plants said to have been seized.

(2.) PROSECUTION in order to bring home the charge against the respondent has examined four witnesses. P.W.4 the Excise Sub -Inspector, who had gone with other being the leader of the squad. The constable of Excise a member of the squad has been examined as P.W.2. The local Tahasildar who is said to have accompanied P.W.4 and others has been examined as P.W.3 and P.W.2 is a local witness. The defence has examined none. From the side of the prosecution the seizure list has been admitted in evidence and marked as Ext. 1. Ext. 2 is the statement of the respondent said to have been recorded by the P.W.3. The forwarding has been marked as Ext. 4, the report to that effect is marked as Ext. 5. Record of right of the land, in question, where the ganja plants are said to have been grown has been marked as Ext. 6.

(3.) LEARNED counsel for the State submits that the evidence in the case coming from the lips of official witnesses who have no axe to grind against the respondent and who have no apparent reason to falsely arraigned the respondent when it is not ever said that they knew each other, their evidence with regard to the cultivation of the ganja plants by the respondent as also the seizure. on being detected ought not to have been discarded. He further submits that in this case the factual aspect do not require the compliance of provision of section 42(1) and (2) of the Act which the trial court has erred in law. According to him, the evidence being overwhelming on record, as regards the cultivation of the ganja plants by the respondent, the trial court did commit gross error both in law and fact by recording the order of acquittal.