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2015 DIGILAW 657 (ORI)

Kanhu Charan Mishra v. State of Orissa

2015-11-24

SATRUGHANA PUJAHARI

body2015
JUDGMENT : S. PUJAHARI, J. 1. The judgment of conviction and order of sentence passed by the 2nd Addl. Sessions Judge, Puri in T.S. No.28/226 of 1990 is under challenge in here in this criminal appeal. The learned 2nd Addl. Sessions Judge, Puri vide the impugned judgment and order while acquitting the appellant of a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act"), held the appellant guilty of a charge punishable under Section 47 (a) of the Bihar & Orissa Excise Act and convicted him to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for a period of two months. 2. Tersely stated the case of the prosecution before the trial court was that on 23.06.1989 at about 4.30 P.M. while the S.I. of Excise, Sadar Mobile, Puri (P.W.2) was patrolling at Satpada area with his staff, he got a reliable information that the appellant was selling opium, Ganja and Bhang in his shop located near Satpada Bazar and, as such, he raided that shop of the appellant observing the formalities and during the course of such raid, he found 12 grams of contraband opium wrapped with a polythene paper, 700 grams of non-duty paid Ganja in a polythene packet and 500 grams of non-duty paid Bhang in another polythene packet, as such, he seized those articles and also the other incriminating materials, such as, the weighing balance used for selling the opium and ganja with the weights of different denominations and the sale proceeds of Rs 50/-. Thereafter, he arrested the appellant and forwarded him to the court and also sent the seized opium, Ganja and Bhang for chemical examination on 24.06.1989 to the Stage Drugs Testing and Research Laboratory, Bhubaneswar through the S.D.J.M., Puri and after completion of investigation, being satisfied of the fact that the appellant was in possession of the aforesaid contraband articles, submitted the prosecution report against the appellant. 3. The appellant pleaded not guilty to the charge and has also pleaded false implication as there was neither any shop nor any house of him at Satapada Bazar. In view of such denial, the prosecution examined as many as four witnesses and exhibited certain documents and also the material objects. 3. The appellant pleaded not guilty to the charge and has also pleaded false implication as there was neither any shop nor any house of him at Satapada Bazar. In view of such denial, the prosecution examined as many as four witnesses and exhibited certain documents and also the material objects. The appellant, who had taken the aforesaid plea, did not adduce any independent evidence in his defence. 4. It appears that on conclusion of the trial, the trial Court basically relying on the version of the official witnesses, i.e. P.Ws.1 and 2 and also the other evidence on record and also the law that corroboration to the version of the official witnesses is not the absolute requirement, held the appellant guilty of the charge, as stated earlier while acquitting him of the charge under Section 18 of the N.D.P.S. Act for possession of the opium. 5. The same has been assailed here in this appeal to be unsustainable in the eye of law, inasmuch as there was no clear, cogent and convincing evidence with regard to the place of recovery of the contraband articles from the possession of the appellant. 6. It has been submitted by the learned Counsel for the appellant that since in this case, the version of the S.I. of Excise, P.W. 2 is not corroborated by the independent witnesses and he being incompetent to conduct the search and seizure under the N.D.P.S. Act and his version being discarded in respect of one of the offences, the trial Court should not have convicted the appellant on such evidence. 7. In response, learned Addl. Standing Counsel has submitted that since the evidence of the official witnesses is clear, cogent and convincing with regard to the seizure of contraband materials which were found to be Ganja and Bhang on chemical examination, the trial Court has rightly held the appellant guilty of the charge, inasmuch as they were not otherwise incompetent to make a search and seizure under the Bihar & Orissa Excise Act. 8. It appears that in this case, the trial Court has refused to accept the evidence of the official witnesses as they were incompetent to make a search and seizure under the N.D.P.S. Act with regard to the seizure of the opium. 8. It appears that in this case, the trial Court has refused to accept the evidence of the official witnesses as they were incompetent to make a search and seizure under the N.D.P.S. Act with regard to the seizure of the opium. The appellant has been acquitted of the said charge as there was non-compliance of different mandatory provisions under the N.D.P.S. Act by the S.I. of Excise, P.W.2. The State has not preferred any appeal against the same, so this Court is not concerned with the same. 9. On scrutiny of the evidence of P.W.2, the S.I. of Excise, it would go to show that he along with P.W.1 on receipt of reliable information had been to a place near Satpada Bazar and he raided the house and on raid of such house, he found 12 grams of opium, 700 grams of non-duty paid Ganja and 500 grams of non-duty paid Bhang, so also the weights of different denominations and sale proceeds of Rs.50/-. The said P.W.2 also identified the aforesaid materials, the weights of different denominations and sale proceeds of Rs. 50/- seized in this case. It is his further evidence that by them, the present appellant was inside the said house. It appears that the aforesaid version of P.W.2 though gets corroborated and complemented by the accompanying Constable, P.W.1, but from the materials available on record, it would go to show that the appellant was acquitted of a charge under Section 18 of the N.D.P.S. Act as the person making search and seizure was not competent and there was also non-compliance of the mandatory provision. When the evidence of the prosecution witness, i.e, P.W.2 with regard to the aforesaid search and seizure was not acceptable for a charge under Section 18 of the N.D.P.S. Act as he was incompetent to make search and seizure and also non-compliance of the mandatory provision, the trial Court ought not to have recorded a judgment of conviction and order of sentence under Section 47 (a) of the Bihar & Orissa Excise Act against the appellant placing reliance on the evidence of such an witness with regard to seizure of the contraband intoxicant, i.e. non-duty paid 'Ganja' and non-duty paid 'Bhang', more particularly when the evidence of the said witness is not supported by the version of any independent witness in this regard, even though there is no impediment in law to record a conviction on the un-corroborated evidence of the official witnesses. 10. Therefore, I would allow this criminal appeal and set-aside the impugned judgment of conviction and order of sentence passed against the appellant. Consequently, the appellant is acquitted of the charge. The appellant being already on bail, the bail bonds shall stand discharged. Appeal allowed.