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2014 DIGILAW 679 (ORI)

Dillip Kumar Sabat v. State of Orissa

2014-10-20

DEBABRATA DASH

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JUDGMENT DEBABRATA DASH, J. 1. The appellant challenges the judgment by which he has been convicted for offence under Section 2 (b) of NDPS Act for unlawful possession of 73 grams of flowering materials of ganja plant and the order of sentence of rigorous imprisonment for a period of one year passed by learned Sessions Judge, Sambalpur in S.T. Case No. 134 of 1990. 2. Prosecution case is that on 9-2-1990, Mr. Dinabandhu Behera Circle Inspector of Police, Rairakhol got credible information that the appellant was dealing with ganja in his betel shop in Ratha Sahi Rairakhol Town and therefore he went and searched the betel shop of appellant at 9.20 p.m. and seized 70 grams of ganja and chillams kept in a battery packet and some modaks kept in one Amul daba. It is stated that he drew up the plain paper FIR Ext-2 at the spot. 3. The appellant took a plea of denial and false implication. The prosecution in order to bring home the charge has examined four witnesses whereas the defence has examined none. 4. Learned counsel for the appellant at the outset submits that here in the case the chemical examination report Ext. 5 cannot be pressed into service to fasten a guilt upon the appellant, as there remains absolutely no evidence as regards the safekeeping of the seized contraband articles right from its said seizure on 9-2-1990 till its production before the Court. Therefore, according to him, there is chance of tampering and meddling with it. So, he urges that the conviction and sentence are liable to be set aside. Learned counsel for the State on the other hand supports the result rendered by the trial Court. According to him, the evidence on that score does not show a case of tampering with the seized articles. 5. It is the settled position of law that the prosecution is required to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets by the investigating or any third agency and the same were the vary articles produced before the Magistrate and sent for chemical analysis. It has also to be established that there was proper sealing and safe custody of the seized articles so that articles examined in the laboratory can be relatable to the articles seized. It is the burden of the prosecution to prove that the seized articles were sent for chemical analysis by adducing unimpeachable evidence leaving no scope of suspicion. Criminal trial does not admit any gap or missing link. In this connection, the decisions in case of Valsala vs. State of Kerala, (1993) 6 OCR SC 457 : 1994 Cri. L.J. 1; Sinic Patricia vs. State, (1994) 7 OCR 277 : 1994 Cri. L.J. (NOC) 162; Bhimsen Sahoo vs. State of Orissa, (1997) 12 OCR 443 and Ram Bahadur Pandey vs. State of Orissa, (2009) 43 OCR, SC 466 : 2009 Cri. L.J. (NOC) 1182, besides the decisions reported in case of Sk. Faiaz vs. State of Orissa, (2010) 46 OCR 855 : 2010 Cri. L.J. 3704 and Jadaba Dehury alias Deheri vs. State of Orissa, (2009) 44 OCR 320 may be referred to. 6. In order to appreciate the rival submission in view of settled law, it is felt proper to directly go to the evidence of the prosecution witnesses. P.W.1 is the police constable who had gone on duty with OIC, Rairakhol Police Station. He stated that the OIC searched the betel shop of the accused and recoverd 70 grams of ganja, 43 modaks and 156 pipes found there. This is all his evidence. The next evidences are those of independent witnesses, who have not breathed a word about search, recovery and seizure. Now comes the evidence of P.W. 4 who is the Circle Inspector of Police and he is the Investigating Officer of the case. He has maintained total silence as to where those contraband items said to have been seized in the case were kept till their production in Court. It appears from the order-sheet of learned S.D.J.M., Rairakhol that on 28-3-1990, prayer was made to dispatch the seized articles for chemical examination. But, wherefrom those came, who produced those, whether those were sealed and if so, whether the seals were intact and tallying with the specimen impression of the seal in the seizure list or not are not indicated. It appears from the order-sheet of learned S.D.J.M., Rairakhol that on 28-3-1990, prayer was made to dispatch the seized articles for chemical examination. But, wherefrom those came, who produced those, whether those were sealed and if so, whether the seals were intact and tallying with the specimen impression of the seal in the seizure list or not are not indicated. With aforesaid evidence as discussed, the prosecution is found to have not established that what was seized from the appellant- s betel shop in connection with the case was actually placed for analysis before chemical-examiner so as to press the report of the chemical- examiner, Ext. 5 into service against the appellant. Therefore, the judgment of conviction and order of sentence are found to be unsustainable in the eye of law and those are hereby set aside. 7. Accordingly, the appeal stands allowed and the conviction of the appellant for offence under section 20(b) of NDPS Act and the sentence awarded thereof are hereby set aside. Appeal allowed.