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2010 DIGILAW 235 (ORI)

Pintu Biswas v. State of Orissa

2010-03-31

B.P.RAY

body2010
JUDGMENT B.P. RAY, J. — The appellant here in this appeal calls in question the judgment of conviction and the order of sentence passed by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial No.78 of 2003. The learned Addl.Sessions Judge-cum-Special Judge, Malkangiri found the appellant guilty of the charge U/s. 20(b)(i) of the N.D.P.S. Act and sentenced him to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- in default to undergo a further R.I. for two years more. 2. The prosecution case against the appellant is as under :- On receipt of a reliable information on 16.9.2003 at about 9 A.M., that a person putting on a blue shirt and blue jean pant was transporting contraband ganja in Motu-Rajdhani bus, the Police staff of Malkangiri Police Station headed by Shri S.A.K. Nayak, S.I. of Police proceeded to Malkangiri bus stand to ascer¬tain the correctness of the information. On their arrival, they found the Motu-Rajdhani bus arrived in the bus stand and when they were waiting in the bus stand near the entrance gate of the bus which was a Govt. bus bound for Bhubaneswar, they found the appellant alighting from the bus along with two air bags and one attache, where from pungent smell of ganja was emitting out. On suspicion, the police staff detained the appellant and made interrogation of him about the contents of the said bags and attache to which the appellant is said to have disclosed that the same was containing contraband ganja which he was transporting to Bhubaneswar and also gave his identity to be Pintu Biswas of village MPV-37, P.S. Kalimela in the district of Malkangiri. The appellant thereafter was detained. The independent witnesses were called to the spot including an Executive Magistrate, namely, Santosh Kumar Pradhan, the then Addl. Tahasildar Malkangiri (P.W.6) and in their presence the search of the bags and attaches was conducted and on such search, it was found that the same was containing ganja. On personal search of the appellant by the S.I., S.A.K. Nayak, it was found that the appellant was having a bus ticket and cash of Rs.30/-. Tahasildar Malkangiri (P.W.6) and in their presence the search of the bags and attaches was conducted and on such search, it was found that the same was containing ganja. On personal search of the appellant by the S.I., S.A.K. Nayak, it was found that the appellant was having a bus ticket and cash of Rs.30/-. Thereafter the weighment of the ganja was taken by the S.I., Shri S.A.K. Nayak through a weighman whose service was fetched and on such weighment they found the attache containing 10 K.G. of ganja and two air bags each con¬taining 7.5 K.G. and 6 K.G. of ganja respectively. The S.I. thereafter took two representative samples of 24 grams from each of the bulk and then gave the identification mark to the bulk of ganja keeping it in the respective containers as well as the representative samples were collected and kept in different poly¬thene covers and identification marks were put on them and all the aforesaid were then sealed in presence of the witnesses, completing other formalities such as putting paper ships inside the same having the signatures of the witnesses including the Executive Magistrate, weighman and the appellant. As the appel¬lant was found transporting the said ganja without any authority in violation of Section 8(c) of the N.D.P.S. Act, he was arrested by the S.I. and thereafter, brought to the Police Station. An F.I.R. was drawn by the S.I. of Police pursuant to which he drew the formal F.I.R. and registered the case and the investigation of the case was taken up by him. During the course of investiga¬tion, the S.I. forwarded the material objects along with the samples to the learned Special Judge-cum-Sessions Judge, Koraput along with the appellant and as per his direction, the samples were sent for chemical examination and on completion of investi¬gation, he placed charge sheet against the appellant. The case of the appellant being transferred to the file of the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri, the appellant faced this trial being charged U/s. 20(b)(i) of the N.D.P.S. Act. 3. The plea of the appellant is one of complete denial and false implication. 4. During the course of examination, it appears that the prosecution examined as many as 14 witnesses. The trial Court on conclusion of the trial returned the impugned judgment of convic¬tion and the sentence as stated earlier. 5. 3. The plea of the appellant is one of complete denial and false implication. 4. During the course of examination, it appears that the prosecution examined as many as 14 witnesses. The trial Court on conclusion of the trial returned the impugned judgment of convic¬tion and the sentence as stated earlier. 5. Assailing the judgment of conviction and sentence imposed, it is strenuously urged by the learned counsel for the appellant that the impugned judgment of conviction and the sen¬tence passed are unsustainable and in-as-much as there is no acceptable evidence on record that the appellant was found in possession of contraband ganja much less of commercial quantity to hold him guilty of the charge. In such premises, the impugned judgment of conviction and the sentence are liable to be set aside. 6. In response, learned Addl.Govt. Advocate strenuously urged that there is categorical evidence that the appellant was found to be in conscious possession of ganja and was caught while transporting the same and as such the impugned judgment of con¬viction and the sentence can not be found fault with. 7. P.W.1, Surya Narayan Bhanja, who was the driver of the bus in question, deposes that when the bus arrived near the Malkangiri bus stand, he found some bags and one attache were kept in the bus stand and police were present there. P.W.8, Suleman Khan, who is a Asst. driver in the police jeep attached to the Police Station deposes that on arrival of the Motu-Bhubaneswar bus, accused got down from the bus carrying two air bags and one attache containing contraband ganja and the police apprehended him and thereafter he was taken to the Police Sta¬tion. In the cross-examination the aforesaid witness stated that the accused was asked to come out of the bus by the police with the bags and the Magistrate arrived there in the spot after half an hour of detection of the bags which were found to be contain¬ing ganja. So also it is the evidence of P.W.10, Khagapati Madhi, who was one of the police personnel accompanying S.I., S.A.K. Nayak to the bus stand, deposes that the accused who was getting down from the bus was searched and contraband ganja was recovered from his possession and the same was weighed. So also it is the evidence of P.W.10, Khagapati Madhi, who was one of the police personnel accompanying S.I., S.A.K. Nayak to the bus stand, deposes that the accused who was getting down from the bus was searched and contraband ganja was recovered from his possession and the same was weighed. But in the cross-examination this witness deposes that he reached the spot after half an hour of detention of the bus and also after detection and recovery. P.W.6, Santosh Kumar Pradhan, the Executive Magistrate, whose service was fetched by the police for conducting search and seizure deposes that the search and seizure was conducted in the Police Station and in his presence, Police recovered ganja from the attache as well as from two air bags and also collected the representative samples and by then the accused-appellant was present at the Police Station. In the cross examination it has been further specifically brought out from him that the entire incident occurred in the Police Station. The independent seizure witness such as P.W.13, Ashok Kumar Rout deposed that Police had taken his signature on some papers which he had identified to be his signature on the seizure list Ext.4. He deposed that without knowing the contents there of he signed the paper. P.W.13 in the cross examination has categorically denied that he had seen any ganja on that day. So also in the evidence of P.W.12-Chhabi Das another independent witness examined in this case disclosed that he had never seen the accused and any seizure was made. The chemical examination report discloses that the representative samples examined were “ganja”. The evidence of rest of the wit¬nesses are formal in nature and does not involved the appellant in any manner. The informant, I.O., who is a vital witness in this case has not been examined nor the F.I.R. in this case has been proved. It is not known what actuated the prosecution not to examine such a vital witness in this case even though he was present in one occasion and his examination was deferred by the learned Special Judge after he entered the witness dock. 8. From the aforesaid evidence on record, it appears that there is discrepancy in the version of the witness with regard to search and seizure. 8. From the aforesaid evidence on record, it appears that there is discrepancy in the version of the witness with regard to search and seizure. When some of the witnesses i.e. P.Ws.8 and 10 who are the police personnel who had accompanied the S.I., Shri S.A.K. Nayak to the bus stand deposed that search and seizure was made in the bus stand and the contraband ganja was recovered from the possession of the appellant, the Executive Magistrate, P.W.6 categorically deposed that the search and seizure was made in the police station in presence of the appellant. Such discrepancies in the version of the material witnesses cast a cloud in the case of the prosecution that the ganja was recovered from the possession of the appellant. Further more, in the absence of the evidence of the I.O., that the representative sample of the articles seized from the possession of the appellant was drawn and the same was sent for chemical examination and in such chemical examination the same was found to be containing contraband ganja and the report of the same is the chemical examination report available in this case, it can very well be said that the prosecution has miserably failed to connect the chemical examination report available in the record to any arti¬cles seized from the possession of the appellant. In absence of any evidence that the samples examined are the representative samples of any articles seized from the possession of the appel¬lant, relying on the evidence of the aforesaid witness it cannot be said that the appellant was found to be in possession of ganja. Furthermore, here in this case, it is seen that the trial Court has also failed to bring to the notice of the accused while examining him U/s. 313 Cr.P.C., the incriminating materials those have been utilized against him. It goes without saying that the same has caused serious prejudice to the accused as it is well settled in law that the incriminating material that has surfaced in the evidence when not put to the accused seeking his explana¬tion, the same cannot be utilized against him. In this case the non-examination of the Investigating Offi¬cer has also caused serious prejudice to the accused in his defence. 9. In this case the non-examination of the Investigating Offi¬cer has also caused serious prejudice to the accused in his defence. 9. In view of the aforesaid, this Court is of the opinion that there is no acceptable evidence on record to come to a conclusion that the appellant-accused was found transporting contraband ganja in violation of Section 8(c) of the N.D.P.S. Act, much less he was found to be transporting any ganja of commercial quantity. In such premises, in the considered opinion of this Court, the judgment of conviction and order of sentence passed by the trial Court are indefensible and as such liable to be set aside. 10. Resultantly, the Criminal Appeal stands allowed. The judgment of conviction and order of sentence recorded by the trial Court are set aside. The accused-appellant, who is now in custody, be set at liberty forthwith, unless his detention is required in any other case. While parting with the case, I cannot refrain myself from observing the fact that even though in this case a heinous of¬fence disclosing the trafficking of narcotic drug was alleged which provides for stringent punishment, the trial Court has not conducted himself in appropriate manner and without any rhyme or reason the informant-cum-the Investigating Officer who is a material witness in the case of this nature has since not been examined. So also it appears that though in the meanwhile the N.D.P.S. Act has gone through amendment, the prosecution allega¬tion attracts a charge U/s. 20(b)(ii)(C) of the N.D.P.S. Act, the appellant-accused was asked to face his trial under the pre-amended Section 20(b)(i) of the N.D.P.S. Act and a conviction was recorded. So also no specific finding was recorded by the trial Court with regard to possession of the contraband ganja and connecting the chemical examination report with the articles recovered from the possession of the accused. The aforesaid is not expected from a Special Judge in the rank of Sessions Judge. As such this Court thinks it is desirable to send a copy of the judgment to the trial Judge concerned for his information with hope and trust that he would be more careful in future while dealing with the cases of this nature. Appeal allowed.