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2014 DIGILAW 703 (ORI)

Paritosh Dash v. State of Orissa

2014-10-29

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. - The accused having been convicted for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and sentenced to undergo rigorous imprisonment for 20 years and to pay fine of Rs.2,00,000/-, in default to undergo further R.I. for five years has assailed his conviction and sentence in this appeal. The conviction has been recorded by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial No. 51 of 2006. Judgment has been pronounced on 03.07.2007. 2. The case of the prosecution is that, on 23.03.2006, the OIC of Malkangiri Police Station received reliable information about the possession of ganja by the accused-Paritosh Dash in village M.V.83. The said Police Officer after making station diary sent the intimation to his immediate superior in writing. Such information has been sent to the C.I. and Superintendent of Police, Malkangiri through special messenger, The officer was of the opinion that there was danger of accused escaping with the ganja. He along with his staff reached the spot, M.V.83 at 11.30 a.m. and detected some gunny bags numbering about fourteen on the verandah of the house of the accused. He asked the accused about the contents of those gunny bags and accused replied that ganja was inside the gunny bags and that he procured the same from Dyke-III side. Thereafter, the Investigating Officer (I.O.) detained the accused in his house with the contraband ganja bags and arranged for local witnesses. He disclosed before the local witnesses and the accused for the purpose of his visit. He further asked the accused about his willingness to be searched in the presence of Executive Magistrate. The appellant stated that he is willing to be searched in the presence of an Executive Magistrate. Therefore, a constable was deputed and the service of the Executive Magistrate (P.W.2) was made available on the direction of the Sub-Collector, Malkangiri. In the presence of the' Executive Magistrate, the house of the accused was searched and fourteen numbers of gunny bags were found containing ganja. The witnesses and the Executive Magistrate could know the same to be ganja from the smell. Then, the I.O. deputed a constable to arrange a weighman. On arrival of the weighman, all the fourteen numbers of gunny bags weighed in the presence of witnesses. The witnesses and the Executive Magistrate could know the same to be ganja from the smell. Then, the I.O. deputed a constable to arrange a weighman. On arrival of the weighman, all the fourteen numbers of gunny bags weighed in the presence of witnesses. The total weigh of the ganja came to 250.672 kgs and samples were taken of 24 grams each. The sample's were kept in separate packets. Thereafter, the I.O. seized 14 bags along with sample packets and prepared seizure list. The gunny bags were marked as Exts. A to N and the sample packets were marked as Exts.A-1 to N-1 and A-2 to N-2. He seized all the 28 sample packets and prepared seizure list in the presence of the Executive Magistrate. The accused was also affixed his LTI in the seizure list. The sample packets were signed in the presence of the Executive Magistrate and other witnesses by using brass seal of the Executive Magistrate. He also prepared sample copy of the brass seal of the Executive Magistrate. Then, he arrested the accused and forwarded the material objects to the Court. At the spot, he prepared a plain paper FIR, which is marked as Ext.27. Then, he proceeded to the police station. On 24.03.2006, at about 2 a.m. he along with his staff reached the police station at Malkangiri and registered a case as Malkangiri P.S.Case No. 59, dated 24.03.2006. The 10 kept the properties at the P.S.Malkhana and he was also then incharge of the Malkhana by making entry in P.S.Malkhana Register, vide Mal Number 40/2006 retaining copy of the mal entry vide Ext.28. On 25.03.2006, he forwarded the accused and seized bulk and sample packets to the Court of Special Judge, Koraput at Jeypore. On that date, he received orders from the Court to send sample packets through the SDJM, Malkangiri to R.F.S.L., Berhampur for chemical examination. It was directed that the learned S.D.J.M., Malkangiri shall keep the seized articles in the Malkhana. Accordingly, the same was kept in the Court of learned S.D.J.M., Malkangiri. After completion of investigation, on 20.05.2006, the 10 submitted charge-sheet against the appellant under Section 20(b)(ii)(C) of the NDPS Act. The appellant, therefore, was charged for the offence under Section 20(b)(ii)(C) of the NDPS Act. 3. In course of trial, the appellant took the plea of denial and false accusation. After completion of investigation, on 20.05.2006, the 10 submitted charge-sheet against the appellant under Section 20(b)(ii)(C) of the NDPS Act. The appellant, therefore, was charged for the offence under Section 20(b)(ii)(C) of the NDPS Act. 3. In course of trial, the appellant took the plea of denial and false accusation. However; he admitted that he along with his wife and brother were staying together in the house in question. 4. In order to prove its case, prosecution examined seven witnesses. P.W.6 is the Investigating Officer, who prepared seizure list. P.W.2 happens to be the Executive Magistrate. P.W.1 is a local villager. P.W.3 is an ASI, who accompanied raiding party. P.W.4 is a witness to the seizure of command certificate. P.W.5 is the constable, who accompanied the raiding party. P.W.7 is a witness to the seizure of the Patta of the house in question. The defence examined one witness on its behalf, namely, Amal Mazumdar. 5. The learned Special Judge after considering the materials on record came to the conclusion that the prosecution has proved its case beyond all reasonable .doubts and, hence, he convicted the appellant for the offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced him to undergo imprisonment as described above. 6. In course of hearing, the learned counsel for the appellant raised only one contention. It is emphatically argued by the learned counsel for the appellant that the learned Special Judge has not considered the fact that the house from which contraband articles were seized was not the exclusive residence of the appellant and that other persons were also residing. In this connection, he drew attention of the Court to the cross-examination of P.W.6 and the statement of D.W.1. The learned Standing Counsel, on the other hand, has stated that there is presumption in favour of the prosecution under Section 54 of the NDPS Act and, hence, once possession is established from the accused, it shall be presumed under the Act with respect to the contraband articles seized as has been held in this case. 7. It is not disputed that the contraband ganja was seized from the verandah of a house. P.W.6, in the cross-examination has stated that the land in question stands recorded in the name of Ashalata Das, who happens to be mother of the deceased and she is alive. She was not cited as a witness to the prosecution. 7. It is not disputed that the contraband ganja was seized from the verandah of a house. P.W.6, in the cross-examination has stated that the land in question stands recorded in the name of Ashalata Das, who happens to be mother of the deceased and she is alive. She was not cited as a witness to the prosecution. The witness also admitted that Ashalata Dash had three sons, namely, Santosh Dash, Paritosh Dash (appellant) and Ganesh Dash. He stated that all the brothers were staying separately and there are six houses in that campus. The campus is adjacent to the main road leading to other villages. This aspect was put to the appellant that Ashalata Dash happens to be his mother and she was staying with him and other brothers. The appellant admitted the same and said that they were staying together. In addition to that, no independent witness has supported the case of the prosecution, who has knowledge about the residence of the accused in the house in question. 8. It is further evident from the statement of D.W.1 that Ashalata Dash happens to be mother of the accused and she is head of the family of the accused. The witness stated that the accused have two other brothers, namely, Santosh and Ganesh. He has further stated that all the brothers were staying together alone with their Mother in one house. He further stated that 12 inmates were staying in that house of Ashalata. He further stated that the land in which the house in question from where recovery took place stands in the name of Ashalata, the mother of file deceased. In the cross-examination, the Special Public Prosecutor has suggested that the brother of the accused-Paritosh Dash, namely Ganesh is a Police Constable and that he stays in that house. The prosecution has not. given a clear suggestion that the house in question was not in the joint possession of several persons. In a case under NDPS Act, where mere possession of contraband article is an offence, it is duty of the prosecution to prove the exclusive and conscious possession of the accused-appellant over the articles seized in course of investigation. In this case, the contraband articles were seized from the verandah of a house. It is also clear from the records that the house is inhabited by several persons. In this case, the contraband articles were seized from the verandah of a house. It is also clear from the records that the house is inhabited by several persons. So, the prosecution has failed to establish the necessary connection, which shows the exclusive and conscious possession of the contraband articles by the accused-appellant. Hence, this Court comes to the conclusion that the findings recorded by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri is not sustainable and is liable to be interfered with. Accordingly, the Criminal Appeal is allowed. The conviction and sentence of the accused for the offence under Section 20(b)(ii)(C) of the NDPS Act in C.T. No. 51 of 2006 are hereby set aside. The appellant be set at liberty forthwith, if his detention is not required in any other case.