Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 282 (ORI)

Baikunthanath Sitha v. State of Orissa

2015-04-24

SATRUGHANA PUJAHARI

body2015
JUDGMENT : S. PUJAHARI, J. The appellant here in this appeal, assails the judgment and order of conviction and sentence passed against him by the learned Sessions Judge, Koraput, Jeypore, in Sessions Case No. 226 of 1991. The learned Trial Court vide the impugned judgment and order of conviction and sentence held the appellant guilty of the charge under Section 20 (b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for Short "the N.D.P.S. Act") and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for four months more. 2. The prosecution came to the trial Court with a case that one Sanatan Panigrahi (P. W. 7), the then Officer-in-charge of Kallimela Police Station, on 17.9.1990, at about 9.20 A.M. received a reliable information about trafficking of 'Ganja' in village M.P.V. 23. To verify the information, he proceeded to the village and on his arrival in the village, he found the appellant loitering in front of the hotel of one Subash Haldar (P.W.2) located near the bus stop carrying an attache (M.a. I) and one Air Bag (MO. III). On being asked, the appellant told that he was carrying 'Ganja' in the attache (M.O.I) Hence, P.W.7 opened the attache (M.O.I) in presence of the witnesses with the key in possession of the appellant and found the same containing six kilograms of 'GANJA'. He made seizure of the attache (M.O.I) with 'Ganja' along with its key and the Air Bag (M.O.III) vide Seizure list (Ext.1) and sealed the attache (M.O.I) in presence of the witnesses with the ‘Ganja', drew plain paper FIR (Ext. 6) at the spot and brought the appellant along with the seized articles to the police station. Thereafter, on the next day P.W. 7 intimated the circle inspector of Police, Malkangiri about the detection of 'Ganja' "and on 14.1 0.1990 in presence of the witnesses he opened the attache (M.O.I) and collected 500 grams of 'Ganja' out of it in a polythene bag (M.O.II) and produced the same through Havildar A. Patra (P.W.8) before the Inspector of Excise, Malkangiri (P.W.5) for examination, who after examining the same opined the same to be 'Ganja' vide Ext. 4. 4. Again on 13.11.1990, P. W. 7 collected sample of 200 grams of 'Ganja' from the attache (M.O.I) in a polythene bag which was sent for chemical examination to State Forensic Science laboratory at Bhubaneswar for chemical examination vide forwarding letter of J.M.F.C. (Ext.8) and the chemical examination report (Ext.9) confirmed the same to be 'Ganja'. On completion of investigation, final form was filed against the appellant for alleged commission of offence punishable .under Section 20 (b)(i) of the N.D.P.S. Act for trafficking of 'Ganja' in violation of Section 8(c) of the N.D.P.S. Act. 3. Taking into consideration the aforesaid case of the prosecution which was supported by the material on record collected during investigation, the trial Court framed the charge against the appellant for alleged commission of offence punishable under Section 20(b)(i) of the N.D.P.S. Act. As the appellant denied the charge, prosecution examined eight witnesses and also exhibited certain documents and the material objects to bring home the charge against the appellant. The appellant though had taken a plea of denial, but adduced no independent rebuttal evidence to substantiate his plea. 4. On conclusion of trial, basically relying on the evidence of P.W. 7 and other official witnesses and also the evidence with regard to chemical examination, the trial Court returned the judgment and order of conviction and sentence as stated earlier. 5. learned counsel appearing for the appellant assails the same to be unsustainable in the eye of law inasmuch as there is no convincing evidence on record disclosing the fact that the appellant was found trafficking 'Ganja'. According to him since in this case no material is there disclosing the fact that the samples sent for chemical examination was the representative of the sample of the articles seized from the possession of the sample of the articles seized from the possession of the appellant even if for a moment it is admitted that the appellant was found in possession of some articles inside the attache, the same cannot be said to be 'Ganja'. Hence, he submits to set aside the impugned judgment and order of conviction and sentence. 6. Hence, he submits to set aside the impugned judgment and order of conviction and sentence. 6. In response, the learned counsel for the State submits that there being convincing material disclosing the fact that the appellant was found to be in possession of 6kgs of 'Ganja' in the attache, as disclosed from the evidence of P.W.7 and the same was examined by an experienced officer (P.W.5) soon after that and he opined the same to be 'Ganja', so also in the chemical examination report (Ext.9), it was found that the representative sample of articles drawn from the attache found to be 'Ganja', there is no reason to disbelieve that the articles that was found in the attache which was in the possession of the appellant was 'Ganja'. The appellant as such, was found to be in unauthorized possession of 6kgs of 'Ganja' and as such violated Section 8(c) of the N.D.P.S. Act punishable under Section 20(b)(i) of the N.D.P.S. Act as it then was. Hence, he submits the impugned judgment of conviction and sentence needs no interference. 7. On perusal of the evidence on record, particularly the evidence of P.W.7, who seized the 'Ganja', it is disclosed that he had seized the attache (M.O.I) from the possession of the appellant on 17.9.1990 while he was loitering in front of the hotel of Subash Haldar (P.W.2) and on search of the attache he found the same to be containing 'Ganja' and as such he seized and sealed the same, drew plain paper FIR (Ext.6) and forwarded the accused-appellant to Court. It appears from his evidence that the articles seized were never forwarded to the Court along with accused-appellant and the same was all along in the possession of P.W.7. The Independent witnesses such as P.W.1 and P.W.2 have not supported the seizure made by him. On 14.10.1990 as appears from his version, he broke open the seal, collected ½ kg of sample in presence of witnesses and produced the same in a packet before the Inspector of Excise, Malkangiri (P.W.5), through Havildar A. Patra (P.W.8) and received a report from him that the representative sample collected therefrom was found to be 'Ganja' vide Ext-4. On 14.10.1990 as appears from his version, he broke open the seal, collected ½ kg of sample in presence of witnesses and produced the same in a packet before the Inspector of Excise, Malkangiri (P.W.5), through Havildar A. Patra (P.W.8) and received a report from him that the representative sample collected therefrom was found to be 'Ganja' vide Ext-4. Again it appears from his evidence that on 13.11.1990, he broke open the seal of the attache (M.O. I) in presence of the Constable (P.W.6) and collected another sample of 200gms and kept the same in a polythene bag, sealed the same and produced the same before the learned J.M.F.C to send the same for chemical examination and the learned J.M.F.C with a forwarding letter vide Ext. 8 sent the same for chemical examination. The chemical examination report (Ext. 9) which is available on record reveals that the samples examined were found to be 'Ganja'. From the chemical examination report (Ext.9), it appears that 70gms of 'Ganja' was sent for chemical examination in a polythene packet was examined. 8. No evidence has been led to show that the articles which were seized from the possession of the appellant on 17.09.1990 were kept in police malkhana and in safe custody in the police station. There is also no evidence that when the seal was broken, the witnesses present there on the date of seizure and seal of the articles had witnessed regarding the collection of the samples that was examined by the Inspector of Excise, Malkangiri (P.W.5) Furthermore, there is also no evidence that in whose custody the bulk in the attache (M.O.I) were kept after collecting first sample till the next sample were collected on 13.11.1990. Furthermore, from the evidence of P. W. 7 though it is disclosed that he had collected 200gms and same was forwarded vide Ext-8 for chemical examination, but Ext-9 does not agree with the same inasmuch as the sample which was produced for chemical examination was only containing 70gms representative samples. 9. The evidence of P.W.7 does not disclose the reasons for non-drawal of the sample for chemical examination by the expert in presence of the seizure witnesses as well as the appellant on the very date of seizure. 9. The evidence of P.W.7 does not disclose the reasons for non-drawal of the sample for chemical examination by the expert in presence of the seizure witnesses as well as the appellant on the very date of seizure. So also virtually no explanation is there with regard to safe custody of the articles seized from the possession of the appellant after the seizure and what actuated the investigating officer (P.W.?) not to produce the articles seized before the Magistrate along with the appellant. So far as the representative samples drawn on first occasion for examination by P.W.5, no convincing evidence is there .disclosing the fact that the same was drawn from the attache (M.O.I) which was seized and sealed inasmuch as its safe custody till the date of drawal of the sample for examination by the P.W.5 has not been proved. There was long delay in drawal of the sample coupled with witnesses to the original search and seizure in whose presence the attache (M.O.I) containing 'Ganja' was seized and sealed were also not witness to the subsequent breaking of the seal and also the drawal of the sample. There is no convincing evidence with regard to the safe custody of the attache (M.O. I) with the bulk before the drawal of the sample to send the same for chemical examination through the learned J.M.F.C. vide forwarding letter (Ext. 8). Added to the same, the chemical examination report (Ext.9) does not agree with the evidence of P.W.? inasmuch as though he deposed that he had drawn 200gms of sample for chemical examination by the State Forensic Science Laboratory and sent the same vide Ext. 8, the representative samples that was examined by the laboratory is of 70gms as disclosed from Ext. 9. The aforesaid discrepancies coupled with the evidence of independent witnesses not supporting the seizure makes the evidence of the investigating officer with regard to seizure of 'Ganja' from the possession of the appellant to be doubtful one. 8, the representative samples that was examined by the laboratory is of 70gms as disclosed from Ext. 9. The aforesaid discrepancies coupled with the evidence of independent witnesses not supporting the seizure makes the evidence of the investigating officer with regard to seizure of 'Ganja' from the possession of the appellant to be doubtful one. Even for the sake of argument, the evidence of the investigating officer is accepted that he had seized the attache (M.O. I)- said to be containing 'Ganja' from the possession of appellant still then there being no convincing material to show that any representative sample drawn therefrom were examined by the expert (P.W.5) and also chemically examined, the evidence of P.W. 5 and the chemical examination report (Ext.9) is of no assistance to the prosecution to prove that the article found in the possession of the appellant was 'Ganja'. 10. In absence of any convincing evidence with regard to the safe custody of the articles seized and also ruling out the possibility of meddling of the articles seized as well as nexus of the articles seized from the possession of the appellant with the representative sample drawn, the appellant could not have been made liable for possession of 'Ganja' violating the provision of 8(c) of N.D.P.S. Act punishable under Section 20(b)(i) of the N.D.P.S. Act as it then was. 11. Hence, on reappraisal of the evidence on record, this Court is of the view that the trial Court grossly erred in appreciation 'of evidence on record to come to a conclusion that the appellant was found to be possessing the 'Ganja' of 6kgs violating the provisions of 8(c) of the N.D.P.S. Act and as such convicted under Section 20(b)(i) of the N.D.P.S. Act. 12. Resultantly, for the forgoing reasons, this criminal appeal is allowed. The judgment of conviction and order of sentence are set aside. Consequently, the appellant is acquitted of the charge under Section 20(b)(i) of N.D.P.S. Act. He be discharged from his bail bond. LCR be returned forthwith. Appeal allowed.