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2013 DIGILAW 69 (ORI)

Sura Gouda v. State of Orissa

2013-03-13

RAGHUBIR DAS

body2013
ORDER The Appellant assails his conviction & sentence of 10 years rigorous imprisonment with fine of Rs. 1,00,000, in default, rigorous imprisonment for one year recorded under Section 20(b) of the N.D.P.S. Act 1985 (for short 'the Act'). The case of the prosecution, in brief, is that on 21/22.1.2004 at about 4.00 A.M., the then S.I. of Police, Kuhudi Out Post got information from a reliable source that Ganja was being transported in a Maruti-800 Car bearing Registration No. WNW 1043 which was then parking by the road-side on N.H.S, near Jayamangalpur Chouk as one of its tyre had got punctured. Thereon, the police officer made an entry in the station diary & sent information to his higher authority through a special messenger in compliance with Section 42(2) of the Act & then left for Jayamangalpur Chouk accompanied by one constable, two Home Guards & two local witnesses collecting all of them on his way to the spot: On arrival at the spot, he found the car there with two persons busy in changing the rear wheel of the car. Being asked, the two persons disclosed their names as Sangram Rath & Sura Gouda (present Appellant). When asked as to what was there in the car the two persons initially gave prevaricating statements but at last they disclosed that ganja was kept inside the car which was being transported from Ganjam district. The Police officer asked the two persons to exercise their option of search in presence of either one Gazetted Officer or a Magistrate. As they wanted to be searched in presence of a Magistrate, the S.I. of Police sent a constable to call an Executive Magistrate & deputed one Home Guard to arrange weighing materials. On arrival of Executive Magistrate (the then Tahasildar, Tangi), the police officer conducted personal search of the two persons & recovered one Mobile from Sangram Rath & a cash of Rs. 9000 from the Appellant. Thereafter, he took search of the Maruti Car & recovered 10 nylon bags containing flowering & fruiting tops of cannabis plants. On weighment, the contents of all the nylon bags came to 160 kgs. Thereafter, he seized the nylon bags containing Ganja & collected sample from each of the bags. Observing formalities, he arrested the two persons & sent the sample Ganja for chemical examination. On weighment, the contents of all the nylon bags came to 160 kgs. Thereafter, he seized the nylon bags containing Ganja & collected sample from each of the bags. Observing formalities, he arrested the two persons & sent the sample Ganja for chemical examination. On completion of investigation, charge sheet was submitted against both the persons under Section 20(b) of the N.D.P.S. Act. Both the persons were charged under Section 20(b) of the Act & were tried jointly. In the midst of the trial, Sangram Rath jumped bail whereupon the trial against Sangram Rath was split up vide Order Dated 20.2.2006. On conclusion of trial Sura Gouda, the present Appellant, was convicted & sentenced as afore-stated. The plea taken by the Appellant was one of denial as well as false implication by the police. On behalf of the prosecution, 9 witnesses were examined whereas the Appellant examined one witness in his defence. On behalf of the Appellant, who has been in jail custody since the date of the his arrest, the Learned Legal Aid Counsel has urged only one ground alleged lack of evidence to establish conscious possession of Ganja as against the Appellant. Therefore, the same needs carefully consideration. It is there in the F.I.R. so also in the testimony of the informant police officer (P.W.7) that when the police officer with his staff & other independent witnesses reached at this spot, one Maruti Car was found parked by the road side of N.H.S near Jayamangalpur Chouk & two persons (subsequently made accused in the case) were found engaged in changing rear wheel of the car. But in his cross-examination, the same police officer has stated that by the time of his arrival at the spot, the two accused persons had already completed changing of the wheel. Therefore, his claim that the two persons were changing the rear wheel of the car is found to be incorrect. Out of the remaining prosecution witnesses, P.Ws. 1 & 2, both the independent witnesses to the search & seizure, have stated that on their arrival at the spot they found a Maruti Car on the road & both the accused persons were standing by the side of the car. Out of the remaining prosecution witnesses, P.Ws. 1 & 2, both the independent witnesses to the search & seizure, have stated that on their arrival at the spot they found a Maruti Car on the road & both the accused persons were standing by the side of the car. P.W.4, the weighmen who arrived at the spot at about 9.00 AM., has stated that on his arrival, he found one Maruti Car standing on the road side & the two accused persons present there. The remaining witnesses, e.g. P.W.3, the Executive Magistrate, P.W.5 the A.S.I. of police who received the seized Ganja to be kept in the Malkhana, P.W.5, the previous owner of the Maruti Car & P.Ws. 8 & 9, the two Investigating Officers were not present at the spot when the case was detected, have not stated anything as to the circumstances under which the Appellant was apprehended at the spot. Thus the evidence on record, germane to the factum of possession, is that the Appellant & the other accused were there by the side of the Maruti Car when the S.I. of Police Kuhudi out post along with his staff & independent witnesses arrived at the spot. Though it is stated by that S.I. of Police that on being asked both the accused persons admitted the there was Ganja inside the Car & that the same was procured from Lanja in the district of Ganjam to be transported to Bhubaneswar, the same being hit by Section 25 of the Evidence Act is not admissible in evidence. The S.I. of police, The S.I. of police, Kuhudi has admitted that neither the driving licence nor any document in connection with the Maruti Car was seized from the possession of the Appellant. The police did not recover any other incriminating materials from the possession of the Appellant. It is the case of the prosecution that the other accused, namely, Sangram Rath had purchased the Maruti Car from P.W.5. It is not ever proved that the present Appellant was either the driver or a passenger of the Car. Under such circumstances, no liability in respect of the seized contraband can be fastened on the Appellant. In Antony Souri Pilley v. State of Maharastra 1993 CRI. It is not ever proved that the present Appellant was either the driver or a passenger of the Car. Under such circumstances, no liability in respect of the seized contraband can be fastened on the Appellant. In Antony Souri Pilley v. State of Maharastra 1993 CRI. L.J. 1502, it is observed that in serious case of the present type it is essential to establish that the accused alone was the person from whose possession the contraband has been recovered. In that case, one gunny bag containing Ganja was recovered from inside a hut in which the accused was found present. There was no evidence that the premises from where the gunny bag was recovered belonged to the accused, that he was in possession of the premises, & that he had handled the contraband or that he was in any manner concerned with. Therefore, it is observed that his mere presence on the premises was not good enough to prove his conscious possession. In Ismilkhan Aiyubakhan Pathan v. State of Gujurat, (2000) 10 SCC 257 , it is observed that there is no statutory provision for drawing any presumption that a person who was present at any particular place should be presumed to be in possession of the Narcotic or psychotropic Substance. In cases like this prosecution is obliged to establish by cogent & reliable evidence that the Appellant was in exclusive & conscious possession of the contraband article in order to sustain conviction for the offence of illegal possession of Ganja as contemplated under Section 20(b)(i) of the Act. Learned Trial Court has observed that the Ganja was seized from the exclusive & conscious possession of the Appellant for the reason that he was found present by the side of the Car from which the seized Ganja was recovered. In view of the observation made above, the circumstances do not form a complete chain to connect the Appellant with the seized contraband. Consequently, the conviction & sentence under challenge are not sustainable. Accordingly, the JCRLA is allowed. The impugned order of conviction & sentence is set aside. The Appellant is acquitted of the charge & he being in custody be set at liberty at once, unless his detention is required in any other case. Cash of Rs. 9000 which was seized from the possession of the Appellant has been confiscated by the Learned Trial Court. The impugned order of conviction & sentence is set aside. The Appellant is acquitted of the charge & he being in custody be set at liberty at once, unless his detention is required in any other case. Cash of Rs. 9000 which was seized from the possession of the Appellant has been confiscated by the Learned Trial Court. In the facts & circumstances, the order of confiscation is set aside & it is directed that the cash seized from the possession of the Appellant be returned to him. JCRLA allowed.