Orissa High Court
Jaya Majhi vs State Of Orissa on 18 April, 2016
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 142 of 2016
Application under section 439 of the Code of Criminal Procedure,
1973.
---------------------
Jaya Majhi ........ Petitioner
- Versus-
State of Orissa ........ Opp. Party
BLAPL No. 187 of 2016
Thisu @ Jadumani Majhi ........ Petitioner
- Versus-
State of Orissa ........ Opp. Party
For Petitioners: - Mr. Satyabrata Panda
For Opp. Party: - Mr. Prem Kumar Pattnaik
(A.G.A)
--------------------
P R E S E N T:-
THE HONOURABLE MR. JUSTICE S. K. SAHOO
....................................................................................................
Date of Argument- 04.04.2016 Date of order- 18.04.2016
....................................................................................................
S. K. SAHOO, J.The petitioners are the accused in Manmunda P.S. Case No. 203 of 2015 which corresponds to C.T. Case No.595 of 2 2015 pending in the Court of learned Special Judge, Boudh for offences punishable under section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act') and section 27(1) of the Orissa Forest Act, 1972 and they have filed applications under section 439 Cr.P.C. for bail as their prayer for grant of bail was turned down by the learned Special Judge, Boudh vide orders dated 23.12.2015.
2. The First Information Report was lodged by Inspector in Charge, Manmunda Police Station who drew up the plain paper F.I.R. at the spot on his own information.
The informant received information on 2.12.2015 at about 5.30 p.m. at police station that some of the villagers of Majhipada have illegally cultivated cannabis plants in large scale on the embankment of Bahani Nala under revenue village Majhipada. Getting such information, the informant made the Station Diary Entry and sent written intimation to S.D.P.O. and S.P., Boudh. On 3.12.2015 early morning, the informant along with other police officials and local independent witnesses proceeded to the spot and arrived there at about 7.15 a.m. and found illegal cultivation of cannabis plants in the Majhipada Gramya Jungle near village Majhipada. From the professional experience and smell of plants, the informant came to the conclusion that the plants are cannabis. He found the cannabis 3 plants were cultivated in a systematic and planned manner and in a linear fashion with a standard gap of about 2-3 feet between each plant and the plants were found to be 3 feet to 6 feet in height. He further found that the plants were properly watered and treated with cow dung, chemicals and fertilizers for better growth and fruiting. The informant rounded up the place and found four to five persons inside the cannabis plants who were uprooting grass from the field and putting earth on the roots of the cannabis plants. Seeing the police party, all those persons started running away towards the jungle but the petitioners were apprehended and they disclosed their names however they did not disclose the names of the other absconded persons. The R.I, Manmunda demarcated the land under illegal cannabis cultivation. The informant along with his police station staffs counted the cultivated cannabis plants and it came to 72,317 in numbers. The labourers, police staffs and forest staffs cut those cannabis plants and deposited those in a heap. Two sample plants consisting of stem, green leaves and flowering and fruiting tops were collected by the informant and wrapped in paper cartoon and were kept inside the white cloth bags separately and sealed. After obtaining the order from G.O. Sri A. Kujur, OPS, the informant destroyed the rest of the cannabis plants by pouring kerosene and setting fire in order to prevent any further 4 regeneration or extraction of Ganja. A destruction certificate was prepared at the spot in presence of the witnesses, G.O. and others. A seizure list was prepared at the spot by the informant.
The informant being satisfied that the petitioners and others had cultivated cannabis plants in the Government land violating the provisions under section 8(b) of the N.D.P.S. Act with destruction of forest land, arrested the petitioners for commission of offences under section 20(a)(i) of N.D.P.S. Act and 27(1) of the Orissa Forest Act, 1972.
On arrival at the Police Station with the seized exhibits, the informant registered Manamunda P.S. Case No.203 dated 03.12.2015 under section 20(a)(i) of N.D.P.S. Act and section 27(1) of Orissa Forest Act, 1972 and directed S.I. of police, Manamunda Police Station namely, Pritimanjari Garnaik to take up investigation of the case.
During course of investigation, the I.O. visited the spot, prepared the spot map, examined the informant and other witnesses and recorded their statements. The petitioners were forwarded to Court on 04.12.2015. The sample cannabis plant marked as Ext. A1 was sent to the Director, S.F.S.L., Bhubaneswar for examination and opinion. The examination report indicated that as a result of physical, chemical and microscopic examination, the exhibit A1 was found to contain 5 stem, leaves, fruiting and flowering tops of cannabis plant. After conclusion of investigation, chargesheet was submitted on 01.02.2016 under section 20(a)(i) of N.D.P.S. Act and section 27(1) of Orissa Forest Act, 1972.
3. The bail applications preferred by the petitioners before the Special Judge, Boudh were rejected on 23.12.2015 mainly on the ground that investigation of the case was under
progress and illegal cultivation of cannabis plants was rampant in that area and some other offenders involved in the case had not been apprehended.
4. The learned counsel for the petitioners Mr. Satyabrata Panda contended that the petitioners are the labourers having no criminal antecedents and they belong to BPL category and they are permanent residents of their village and there is no chance of their absconding. The learned counsel further contended that the rigour of section 37 of the N.D.P.S. Act is not applicable for an offence under section 20(a)(i) of N.D.P.S. Act and in the meantime charge sheet has already been submitted and therefore the bail applications of the petitioners may be favourably considered.
Mr. Prem Kumar Pattnaik, Additional Government Advocate appearing for the State on the other hand vehemently opposed the prayer for bail and submitted that prima facie case is 6 clearly made out against the petitioners. He further contended that the manner in which the accused persons were indulged in the cultivation of huge numbers of cannabis plants and taking into account the punishment prescribed for such offence which is upto ten years and also fine upto Rs.1,00,000/- (rupees one lakh) and the nature and gravity of the offences, the petitioners should not be enlarged on bail.
5. Section 20(a)(i) of the N.D.P.S. Act deals with punishment in relation to the cultivation of cannabis plants in contravention of any provision of the Act or any Rule or order made or condition of any licence granted there under.
Section 8(b) of the N.D.P.S. Act prescribes prohibition for cultivation of the cannabis plants except for medical or scientific purposes and in the manner and to the extent as provided by the provisions of the N.D.P.S. Act or rules or orders made there under or in accordance with the terms and conditions of any licence, permit or authorization.
The expression "cultivate" having not been defined under the N.D.P.S. Act, if the literal dictionary meaning of such expression is adopted, it means to prepare the land and use of soil by way of loosening or breaking up for growing up of the crops by ploughing, watering, fertilizing, fostering growth of plants and taking its care so as to get better crops. It includes 7 tilling or raising crops by fanning or gardening etc. Cultivation means conscious cultivation and not unwanted self-grown cannabis plants.
The learned counsel for the petitioner placed a decision of the Hon'ble Supreme Court in case of Alakh Ram
-Vrs.- State of U.P. reported in (2004) 27 Orissa Criminal Reports (SC) 663 wherein it is held that in order to prove the guilt under section 20 of the N.D.P.S. Act, it must be proved that the accused had cultivated the prohibited plants and there must be supporting evidence to prove such aspect and it is not enough that few plants were found in the property of the accused as it is quite reasonable to assume that sometimes the plants may sprout up, if seeds happen to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation. It was further held that the appellant in that case, his father and brothers owned 70 bighas of land and the witnesses who were examined in support of the prosecution have not given any evidence to show that the property belonged to appellant Alekh Ram and there was no satisfactory evidence either oral or documentary to show that appellant had a right over the property from which the Ganja plants were recovered. There was no evidence that the appellants cultivated those seventeen Ganja plants. The Hon'ble Supreme 8 Court further held that having regard to the extent of the property and the number of plants recovered from that property, it cannot be said that those plants had been the result of cultivation and those plants might have been sprouted there by natural process and the appellant or anybody who is the owner of the property must not have been diligent in destroying the plants. Accordingly, the judgment and order of conviction of the appellant under section 20 of the N.D.P.S. Act was set aside.
The facts of the case cited by the learned counsel for the petitioners is no way applicable to the present case inasmuch as in the case on hand, the materials available on record indicate 72,317 numbers of cannabis plants were cultivated in a systematic and planned manner and in a linear fashion with a standard gap of about 2 to 3 ft. between each plant and those were properly watered and treated with cow dung, chemicals and fertilizers for better growth and fruiting and those were found to be 3 ft. to 6 ft. in height and the petitioners were found to be cultivating possession of those plants inasmuch as they were found cleaning grasses from the field and putting earth on the roots of the cannabis plants. Thus, there are prima facie materials on record to indicate that the cannabis plants detected were the result of well-planned cultivation and those were not sprouted 9 there by natural process and the place selected for such cultivation works is a well-thought-out one to avoid detection.
The learned counsel for the petitioners further placed reliance on an unreported decision of Delhi High Court in case of Kashmir Singh -Vrs.- Narcotics Control Bureau decided on 18.08.2006 and contended that the independent witnesses are the stock witnesses of the prosecution and therefore basing on their testimony, the bail should not be refused. No doubt out of the eighteen chargesheet witnesses, most of the witnesses are official witnesses who accompanied the informant on the date of occurrence to the spot and were present when the illegal cultivation of cannabis plants was detected and those were uprooted and sample cannabis plants were seized and other cannabis plants were destroyed. Some independent witnesses also accompanied the party. Merely because the independent witnesses were alleged to be the witnesses for the prosecution in other cases, their evidence cannot be discarded on that score at this stage of consideration of bail application. It is to be proved by the defence at the stage of trial whether those independent witnesses are stock witnesses of the prosecution or not and then it would depend upon the learned Trial Court as to what evidentiary value is to be attached to the testimonies of those witnesses. At this stage, when other official witnesses have also 10 stated about the involvement of the petitioners in the large scale cultivation of cannabis plants, even if for the sake of argument it is accepted that those independent witnesses are stock witnesses but that would in no way hamper the prosecution case in any manner and that also cannot be a ground to grant bail to be petitioners.
Stock witnesses are always at the beck and call of the police and helped them in various raids and searches carried out by them. Stock witnesses are put up by the prosecution to speak to the facts and circumstances which they did not actually witness and they are merely the persons who would be made to depose whatever the police wanted to be put on record. The Court should have a cautious approach in relying upon the testimony of a stock witness.
The learned counsel for the petitioners further relied upon the case of Rupadhar Patel -Vrs.- State of Orissa reported in 2002 (Vol. I) Orissa Law Reviews 392 and contended that for the offence alleged to be committed under section 20(a) of the N.D.P.S. Act, section 37 (b) of the said Act shall not operate as a bar and the Court can grant bail depending on facts of each case without adhering to the provision contained in section 37 (b)(ii) of the Act. In the said case, the petitioner was found to be aged about 85 years and only three cannabis 11 plants were seized from the bari of the petitioner and therefore bail was granted.
Even though after amendment made in section 37 of the N.D.P.S. Act w.e.f. 2nd October, 2001, the limitation or restriction imposed by sub-section (1)(b)(ii) of section 37 applies only in respect of offences under sections 19, 24 and 27-A and also for offences involving commercial quantity and so far as other offences under the Act are concerned, the said restriction/limitation is not applicable but coming to the case on hand, the manner in which the petitioners who are all young adults aged about 28 years are indulged in large scale cultivation of cannabis plants, their conduct in trying to escape from the spot on the arrival of police party, taking into account the availability of prima facie case, the nature and gravity of the offence and the stringent punishment prescribed for such offence, I am not inclined to grant bail to the petitioners.
Accordingly, the bail applications filed by the petitioners sans merit and stand dismissed.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 18th April, 2016/ Sukanta