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2014 DIGILAW 675 (ORI)

Laxmi Behera v. State of Orissa

2014-10-17

D.DASH

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JUDGMENT The appellant from inside the jail has preferred this appeal challenging the judgment of conviction recorded against her for commission of offence under Section 20(b)(ii)(B) of ND & PS Act and the order of sentence directing her to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- with default stipulation to undergo imprisonment for one year. 2.Prosecution case is that on 26.02.2004, when S.I. of Police, Mr. Madhusudan Mallick was on duty in the traffic out post, Berhampur, it was around 4.20 p.m., he got telephonic information to the effect that one lady suspiciously standing at the City Hospital bus stop carrying a bag containing ganja. So, he immediately passed on the information over telephone to Berhampur Town Police Station and then without further delay proceeded to the City Hospital Road with one Havildar, Mr. Trilochan Sahu (P.W.2) and Constable, Pratap Badtia (P.W.3). Before that he had made necessary entry of said information in the station diary boo of the traffic out post. On their arrival, they found the woman standing there carrying an air bag. On being asked, she disclosed her identity giving out her name as Laxmi Behera and to have taken residence at Badasahi of Chatrapur. On being further asked, she confessed to have been carrying ganja in the said bag. So, two local witnesses were called and in their presence, the lady was again asked about her identity and about the contents of the bag when it is said that she reiterated as before. She was then asked to exercise option of being searched in presence of Gazetted Officer or a Magistrate and on being opted to be searched in presence of the Gazetted Officer, necessary requisition was sent to the S.P., Berhampur for the purpose as well as another to the IIC, Berhampur P.S. to depute a lady constable. Pursuant to the same, D.S.P., Berhampur Mr. P.M. Swain and woman Constable, Laxmilata Behera arrived. Thereafter observing all other formalities, search was conducted. The bag being searched was found to contain ganja and it was then weighed and two parts each containing 50 grams were collected for the purpose of sample and those were packed in pakcets and so also residue ganja. Necessary seizure was made followed by preparation of seizure list. Thereafter observing all other formalities, search was conducted. The bag being searched was found to contain ganja and it was then weighed and two parts each containing 50 grams were collected for the purpose of sample and those were packed in pakcets and so also residue ganja. Necessary seizure was made followed by preparation of seizure list. P.W.1 then prepared a report and made over the same to IIC, Berhampur Town Police Station who took up the investigation after registering the case and he also took charge of the seized contraband articles and other contemporaneous documents. The sample packets were then sent for chemical examination, After completion of investigation, the respondent was placed for trial for commission of offence under Section 20(b)(ii)(B) of ND & PS Act. 3.During trial prosecution examined nine witnesses, whereas the defence examined none. S.I. of police who made the seizure and lodged the F.I.R. has been examined as P.W.1. P.W.2 and 3 are the police Havildar and Constable respectively, who had accompanied P.W.1 to the spot. An independent witness has been examined as P.W.4. The woman Constable who conducted personal search of the respondent has come to the dock as P.W.8 S.I. of police in-charge of Malkhana who had received the ganja for safe custody in the malkhana has been examined as P.W.7. P.W.5 is another police Constable and a witness to the seizure of malkhana register whereas P.W.6 is the police Havildar and witness to the seizure of station diary book from the traffic out post. The investigating Officer has appeared at the end as P.W.9. 4.The trial Court on analysis of evidence has arrived at conclusive finding that the prosecution has established by leading clear, cogent and acceptable evidence beyond reasonable doubt as regards the factum of seizure of 5 kg. 600 gms. of ganja from the conscious possession of the respondent. The contention of the defence for raising doubt on the veracity of the prosecution case for non-examination of other independent witnesses has been negatived. Furthermore, the submission from the side of the defence as regards non-compliance of mandatory provision of Section 42 has been whittled down on the ground that it has no applicability to the seizure and arrest of the persons in public places as it is so in the case in hand. Furthermore, the submission from the side of the defence as regards non-compliance of mandatory provision of Section 42 has been whittled down on the ground that it has no applicability to the seizure and arrest of the persons in public places as it is so in the case in hand. Moreover, the submission with regard to the non-compliance of mandatory provision of Section 50 of the Act has been repelled, since it is not a case of search of ‘person’ in view of the settled law that search of a bag carried by a person does not amount to search of ‘person’ as indicated in Section 50 of the Act providing a safeguard to the person concerned. With all these, the trial Court has found the appellant guilty for the offence as stated above and accordingly she has been convicted and sentenced. 5.Learned Counsel for the appellant submits that the evidence on record do not establish beyond reasonable doubt that the samples collected from the contents of the bags were those which were examined by the chemical examiner. It is submitted that the evidence when properly analysed do not totally rule out the possibility of tampering with the sample plackets and meddling with contents. It is the next submission that the evidence on record do not conclusively prove the factum of seizure of the air bag containing ganja from the conscious possession of the appellant. In this light, it is the submission that non-examination of other independent witnesses who were available there casts serious doubt on the veracity of the prosecution case. However, with all fairity it is accepted that in the facts and circumstances of the case, the provision of the Section 42 of the Act do not get attracted so as to stand for its compliance, when also it is stated that the non-compliance of the provision of Section 50 of the act has no impact on the case since it is a case search of a bag carried by the appellant. However, he contends the sentence imposed in the present case taking into account the status of the appellant and all other relevant factors are excessive. 6.Learned Additional Standing Counsel argues with vehemence that in the present case the appreciation of evidence of the trial Court is in proper direction. However, he contends the sentence imposed in the present case taking into account the status of the appellant and all other relevant factors are excessive. 6.Learned Additional Standing Counsel argues with vehemence that in the present case the appreciation of evidence of the trial Court is in proper direction. According to him, there remains no such feature to doubt the version of the official witnesses who have absolutely no axe to grind against the appellant in falsely implicating her in such a crime and those are enough to arrive at an irresistible conclusion that there was seizure of 5 kgs. 600 grams of ganja from the conscious possession of the appellant. Countering the submission of the learned counsel of the appellant, he contends that when the evidence of official witnesses are free from any infirmity, the non-examination of other independent witnesses which is not the since qua non to establish the factum of search and seizure has no impact at all. It is also his submission that the position is well settled that the evidence of official witnesses including police personnel are not always to be approached with distrust. According to him, the finding rendered by the trial Court fasterning the guilt upon the appellant has all the legal justification. So, he urges that the appeal bears no merit. 7.Keeping in view the rival submission with regard to the first limb, it is seen that in the chemical examination report admitted evidence and marked Ext.17, definite opinion has been rendered that the materials sent for examination are flowering and fruiting tops of cannabis plants commonly known ganja. So, the question remains as to whether the samples collected from the air bag held by the appellant were the same which were placed for chemical examination for the analysis. Samples have been collected on 26.04.2004 in the afternoon, after the detention was made. It is evident from the evidence of P.W.1 that having directed other police personnels to guard the accused as well as the bag containing contraband items, he rushed to the police station and lodged the FIR under Ext.8, whereafter, I.I.C. of the Town Police Station, P.W.9 came to the spot who was then handed over with the seized contraband items, kept in the air bag and took the charge of the investigation of the case. The bag containing contraband items is stated to have been kept in the Police Malkhana during the night. In this connection, the Malkhana in-charge, S.I. of Police, P.W.7 has proved the necessary entry in the Malkhana register bearing No.12 of 004 which has been admitted in the evidence and exhibited as Ext.12. It reveals therefrom that sample packets as well as the air bag with residue contraband items were stored in the P.S. malkhana during the night. She has further stated to have handed over those seized articles to one Subash Sethi for production before the Special Court and on the same day, she handed over the sample packets to P.W.9 for dispatch of the same to the R.F.S.L., Berhampur. Necessary entry to that effect has also been made in the Malkhana register on 27.02.2004. The seized articles were produced before the S.D.J.M., Berhampur as per order of the Special Court and on the same day, the sample packets were sent for chemical examination. The report of the chemical examination, Ext.17 reveals that there was no tampering with the seal or the sample packets. There is no indication therein as regards any maddling being made with contents of those packets placed before to him for examination. In view of above, there remains no scope to raise any doubt in mind that the samples collected from out of the contents of the air bags were actual analysed during the chemical examination. There also remains the promptitude on the part of the Investigating Officer in producing the sample packets in Court and in dispatching the same for the examination. In view of aforesaid, the first limb of the submission of the learned counsel for the appellant is hereby repelled and this Court find no reason to accord any disapproval with the finding of the trial Court on that score. 8.Next coming to the next limb of the submission of the learned counsel for the petitioner as regards unsatisfactory evidence to establish the fact that there was seizure of ganja weighing 5 K Gs. 600 grams from the conscious possession of the appellant, the important witness on the score examined by the prosecution is P.W.1 besides others who had accompanied him to the spot. 600 grams from the conscious possession of the appellant, the important witness on the score examined by the prosecution is P.W.1 besides others who had accompanied him to the spot. P.W.1 has stated that on their arrival near the spot, they found the appellant standing carrying an air bag of navy blue colour and, thereafter, ascertaining the identity and making her aware of the right that she was having to exercise for the purpose of search in presence of Gazetted Officer or Magistrate (though it is not so necessary), P.W.1 conducted search of the bag and by then he had also called the D.S.P. to the place. Such evidence of P.W.1 is getting corroboration in all material particulars from the evidence of P.W.2 the Police Havildar and P.W.3 the constable of police who had accompanied P.W.1. Even the independent witness P.W.4, a local retail fruits vendor has also stated in that regard providing further support to the evidence of P.Ws.1, 2 and 3. This witness has identified the very air bag (M.O.-I) in the Court. Despite cross-examination of all these witnesses, no such materials have emerged out to doubt their testimony. The trial Court therefore appears to have rightly found the factum of seizure of 5 Kgs. 600 Grams of ganja to have been made from conscious possession of the respondent. Thus, the second limb of the submission of the learned counsel for the appellant also fails. For the aforesaid reason and discussion of the evidence, the judgment of conviction stands confirmed. 9.Next coming to the question of quantum of sentence, it is seen that the quantity of ganja seized from conscious possession of the appellant is 5 Kgs. 600 Grams which is more than small quantity and but less than commercial quantity. Viewing the deleterious affect on account of commission of such kind of offences causing sufferance of the members of the society, the quantum of sentence of custodial sentence as well as the fine imposed by the trial Court is found as commensurate with the offence. 10.In the result, the appeal stands dismissed. Appeal dismissed.