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2014 DIGILAW 446 (ORI)

State of Orissa v. Sayad Fajar Alii

2014-07-25

D.DASH

body2014
JUDGMENT The State has called in question the order of acquittal passed by the Learned Sessions Judge, Kalahandi, Nuapada in G.R. Case 223 of 1994 acquitting the Respondent of the charge for offence under Section 20 (b) (i) of Narcotic Drugs & Psychotropic Substance Act. 2. Prosecution case is that on 01.10.1994 at 5.15 P.M. Circle Inspector of Police attached to Nuapada Police Station went to Nuapada Bus Stand having received reliable information as regards the transportation of ganja being accompanied by his staff. In the bus stand he apprehended the Respondent & recovered a blue colour cotton bag with the suspicion that it was carrying ganja. It is stated that at the first sight of the police, the Respondent attempted to flee away from the spot & through local people as weir as driver of Police Department, it was foiled when he was apprehended with the bag. The bag was searched in presence of Executive Magistrate & then it has been found to be containing ganja. on weighment nine packets of ganja were found to have been kept in the bag which weighed 5 kg. 500 gms. Samples were drawn at the spot. FIR being lodged by the Circle Inspector of 'police, Deputy Superintendent of Police took charge of the investigation & finally charge sheet having been submitted, the Respondent faced the trial for the above offence. 3. The Respondent during trial took a plea of complete denial & levelling of false accusations. Prosecution in order to bring home the charges against the Respondent in the trial examined six witnesses, whereas the defence examined none. The Police constable who had gone with the Circle Inspector of police to the place has been examined as P.W.1. P.W.2 is another police constable, a member in the party. The Executive Magistrate has been examined as P.W.3 , P.W.4 & P.W.5 are the witnesses to seizure. The 1.0. of this case has examined the P. W.5. The' prosecution besides leading the oral evidence from the lips of above witnesses has also proved the seizure list Ext.1 weighment chart Ext.2 & the report of the chemical examination Ext.3. 4. The Trial Court on going through the evidence on record & on their evaluation has arrived at a conclusion that the persecution in this case has not been able to establish the factum that on the relevant date, time & place, ganja of 5 kg. 4. The Trial Court on going through the evidence on record & on their evaluation has arrived at a conclusion that the persecution in this case has not been able to establish the factum that on the relevant date, time & place, ganja of 5 kg. 500 gms. was recovered from the exclusive & conscious possession of the Respondent. In view of such finding, the order of acquittal has been recorded. 5. Learned Counsel for the State submits that the evidence on record is overwhelming on the point that there has been recovery of ganja of 5 kg. 500 gms. from the bag of the Respondent which he was carrying at the relevant point of time of detention. So in that view of the matter the finding of the Trial Court that the recovered ganja has no nexus with the Respondent & has not been proved to have been recovered from his possession is not tenable. It is further submitted that the Court below ought to have held that the ganja was seized from exclusive possession of the Respondent. It is his further submission that the Trial Court erred in law by holding the non-examination of Circle Inspector of Police as fatal to the prosecution & that ought not to have been taken as the ground to hold against the search, recovery & seizure of ganja from the exclusive possession of the Respondent when there are other witnesses who have proved the factum of seizure of the ganja from the exclusive possession of Respondent to the hilt. Therefore, he contends that here is a case where the order of acquittal has to be interfered with to prevent miscarriage of justice. Learned Counsel for the Respondent en the contrary supports of the finding of the Trial Court. According to him the view taken by the Trial Court that the star witness of the prosecution who was there in the raiding party having not been examined, the entire case of the prosecution has been rightly held to have not been established with regard to be detention, search, recovery & seizure. He further submits that evidence of P.W. 1, 2 & 3 are not sufficient to stand as the substitute of the evidence of the Circle Inspect or of Police. He further submits that evidence of P.W. 1, 2 & 3 are not sufficient to stand as the substitute of the evidence of the Circle Inspect or of Police. According to him, the facts & circumstances of the case & evidence available, non examination of Circle Inspect or of Police, the leader of the leading party without any short of explanation is fatal to the case of the prosecution. It is next contended by him that the Trial Court's finding that the possession of ganja has not been established to be resting solely with the Respondent is based on proper appreciation of evidence & is unassailable. Thus he contends that the appeal bears no merit. 6. Before going to discuss contentions the contentions addressed contentions raised by the Learned Counsel for the parties it is felt apposite to take .note of the position of law with regard to the scope & power of this Court in session of acquittal of appeal with regard to the interference with the order of acquittal. The settled position of law regarding the powers to be exercised by High Court in an appeal against the order of acquittal is that while High Court has full powers to appreciate the evidence upon which an order of acquittal is based & to act on its own thereof, it will not do so lightly & will be slow to reverse an acquittal, except for strong & compelling reasons when it differs from that of the Trial Court. The paramount consideration in the matter is to avoid miscarriage of justice. Of course where two views are possible & the Trial Court has taken a reasonable view & acquitted the accused, the High Court in appeal cannot interfere with such finding but when there is perverse finding based on erroneous appreciation of evidence. & a serious miscarriage of justice has been caused, the High Court has ample power to reverse that finding. 7. Keeping the aforesaid position of law in mind & in view of the submission of the Learned Counsel for the parties, let's now approach evidence let in by the prosecution in the present case. It may be stated at the beginning that in this case it is C.l. of •Police, Mr. P.L. Bag who had received the credible information while at the police station as regards transportation of ganja in Nuapada bus stand. It may be stated at the beginning that in this case it is C.l. of •Police, Mr. P.L. Bag who had received the credible information while at the police station as regards transportation of ganja in Nuapada bus stand. The prosecution has not brought this important witness to the witness box & the explanation given is rather ridiculous that Mr. Bag's where-about was not known which is wholly unacceptable. Therefore, the best witness of the case has been withheld from being examined. It is true that for the non-examination of this witnesses the entire case of the prosecution cannot be thrown aside but for the said reason the Court has to be certainly on guard & very cautious in evaluating the evidence of the other witnesses on the score of detention, search, recovery & seizure so as to arrive at a conclusion as to whether the same is sufficient to fasten the charge upon the Respondent. As already stated, three witnesses examined from the side of the prosecution are official witnesses; two of them being the constables of Police & one is the Executive Magistrate. It has been deposed to by the P.W1 that he with the Circle Inspector police as well as the P.W.2 had been to the Nuapada bus stand. & this P.W.1 & 2 were called by the C.l. to go for the purpose & accordingly they accompanied. It is P.W.1's further evidence that Executive Magistrate P.W. 3 & others were also present there when they arrived & the bag was opened. He states to have opened the bag under the direction of Circle Inspector of police & to have weighed the contents by bringing the weighting instrument. As stated by him there were nine packets in the bag, & seven bags weighed 1 kg each & 2 packets weighed Y2 kg each. The witness is not stating anything as regards the recovery of said bag containing ganja from the possession of the Respondent. He is totally silent as to where the Respondent was detained & at that point of time what was he doing with the bag to indicate as to how the possession of the bag is attributable to the Respondent. He rather candidly admits that by the time of his arrival, the bag was there on the ground & many persons were near the bag. He rather candidly admits that by the time of his arrival, the bag was there on the ground & many persons were near the bag. So the evidence of this witness is of no help to the prosecution in establishing the nexus between the so called bag said to be containing ganja with the present Respondent. Apart from that there is another discrepancy that when initially he states in categorical term that it was he who brought the instruments & weighed the ganja, in the next phase, he states that it was P.W.2 who weighed it. When P. W. 2 in is evidence is silent as regards the fact that the bag containing ganja was recovered from the Respondent. He also states that by the time he arrived, ganja bag was inside the hotel & many persons were there. It is claimed by P. W. 1 that P. W. 2 personally weighed the ganja. However, P.W. 2 in paragraph 5 directly contradicts the evidence of P.W. 1 on the material aspect by saying that those packets were personally weighed by that Circle Inspector of Police. Next witness is P.W. 3 who is the Executive Magistrate. It is his evidence that on his arrival at the bus stand the bag was opened by the Constable & ganja was found to be there inside. He further states that Circle Inspector of Police did not open the bag but the Constable, Jasia Naik (P.W.2) opened it. Whereas P.W. 2 does not state that he opened the bag. Thus there stands great variance in the evidence of all these witnesses even with regard to the opening of bag as well as weighment of the contents of the bag. Outsiders although are said to be present at the relevant time of apprehension of the Respondent with the bag containing contraband ganja examined as P.W. 4 & 5; have not come forward to support the case of the prosecution in any manner & nothing substantial has surfaced in their evidence to come to the aid of the prosecution. Outsiders although are said to be present at the relevant time of apprehension of the Respondent with the bag containing contraband ganja examined as P.W. 4 & 5; have not come forward to support the case of the prosecution in any manner & nothing substantial has surfaced in their evidence to come to the aid of the prosecution. In such state of affair of the evidence, I am unable to find any justification to accord my disagreement with the finding of the Trial Court as regards failure of the prosecution to establish the nexus been the bag containing ganja with the Respondent & the same is not found to have been based on improper appreciation evidence so as to be termed as perverse. This Court on re-appreciation of evidence as discussed above affirms the impugned order of acquittal. Therefore, the same is not liable to be interfered with. 8. Resultantly the appeal stands dismissed. Appeal dismissed