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2015 DIGILAW 689 (ORI)

Mukesh Pradhan v. State of Orissa

2015-12-08

RAGHUBIR DASH

body2015
JUDGMENT : Raghubir Dash, J. 1. This Jail Criminal Appeal has been registered on receipt of prisoner's petition through the Prison Welfare Officer, Circle Jail, Berhampur wherein the present Appellant has made a prayer to this Court to assess the judgment dated 10.2.2006 passed by the learned 2nd Additional Sessions Judge-cum-Special Judge, Berhampur in 2(a) C.C. Case No.2 of 2005(N)/T.R. No.9 of 2005 convicting the Appellant for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (in short, the N.D.P.S. Act) and sentenced him to undergo R.I. for 10 years and pay fine of Rs.1,00,000/-, in default, to undergo R.I. for 2 years. 2. The prosecution case is that on 1.4.2005 the Sub-Inspector of Excise, Sadar, Chhatrapur, Ganjam with his staff was patrolling on N.H.-5. When the patrolling party members were near Sabulia level crossing of Village-Rambha they saw the Appellant going with one bicycle loaded with one jute bag and one plastic bag containing some substance therein. On suspicion he was detained and search was conducted and was found that Ganja was there in both the bags. In presence of witnesses the S.I. of Excise took the weight of the Ganja and it was found that Ganja weighing 34 Kg. was there in the jute bag and Ganja weighing 12 Kg. was packed in the plastic bag. The S.I. of Excise seized the same on the spot in presence of witnesses and sealed both the bags using paper seal. Wax seal was given using the personal brass seal of the Sub-Inspector of Excise. After sealing was over the personal seal was handed over to one of the witness, namely, Surendra Kumar Sahu. After recording of the statements of the witnesses on the spot he forwarded the Appellant to the Court of Sessions Judge-cum-Special Judge, Berhampur along with the seized articles. On the direction of the said Court the seized articles were produced before the S.D.J.M., Berhampur on the next day, sample of Ganja from each of the packets was drawn in presence of the learned S.D.J.M. and the samples so collected were packed and sealed by the said Court to be sent for chemical examination. On chemical examination, the samples tested "positive" for Ganja (cannabis). After submission of prosecution report cognisance was taken by the learned Special Judge. Thereafter, the case was transferred to the Court of 2nd Additional Sessions Judge-cum-Special Judge, Berhampur. On chemical examination, the samples tested "positive" for Ganja (cannabis). After submission of prosecution report cognisance was taken by the learned Special Judge. Thereafter, the case was transferred to the Court of 2nd Additional Sessions Judge-cum-Special Judge, Berhampur. During trial 3 witnesses were examined. Out of them P.W.3 is the Sub-Inspector of Excise, P.W.1 is an Excise Constable and P.W.2 is an independent witness. Accused declined to adduce evidence. Learned Trial Court having analysed the evidence on record passed the impugned judgment. 3. Mr. Ashok Das, Advocate, who has been engaged by the Court to defend Appellant in the appeal has argued that the learned Trial Court has mechanically accepted the testimony of the official witnesses and that, had there been proper appreciation of the evidence, the Appellant would have been acquitted on the ground of failure on the part of the prosecution to prove the case beyond all reasonable doubts. It is specifically pointed out that the prosecuting agency has failed to comply with the provisions contained in Section 50 of the N.D.P.S. Act and there is no satisfactory evidence on the proper custody of the seized articles as well as sample packets from the stage of the seizure of the alleged Ganja till the same was produced before the Court and there is absence of evidence as to in what manner the sample packets were sent to the chemical examiner. 4. Learned counsel for the State, on the other hand, argues in support of the findings recorded by the learned Trial Court, further submitting that there is no reason why the official witnesses should be disbelieved. It is further submitted that the defence has failed to bring out anything from the witnesses and also there is nothing available on record wherefrom it can be presumed that there was tampering of the seal of the bags containing the Ganja as well as the sample packets. 5. At the time of examination of the accused under Section 313(1)(b) of Cr.P.C. the Appellant has taken the stand that he has been implicated in this case without there being any seizure from his possession. But there is nothing on record basing on which any presumption can be raised to the effect that the S.I. of Excise, for reasons whatsoever, has implanted commercial quantity of Ganja on the Appellant. But there is nothing on record basing on which any presumption can be raised to the effect that the S.I. of Excise, for reasons whatsoever, has implanted commercial quantity of Ganja on the Appellant. Therefore, learned Court below has rightly observed that nothing has come out in the evidence of P.Ws.1 and 3 (official witnesses) to discredit their testimony. 6. No doubt the non-official witness does not support the prosecution case. He has been allowed to be examined under Section 154 of Evidence Act. Nothing could be elicited from him wherefrom the prosecution would gets support. But, his hostility is evident from the fact that despite being a literate person, who was then working as a Manager in a Dhaba near which the seizure took place, he has stated that he has not received any brass seal in his custody whereas he has tamely admitted that he has made endorsement on the zimanama (Ext.3) acknowledging that he had received one brass seal to be kept in his custody to produce the same before the Court. This witness also put his signature on the seizure list in respect of the contraband article. But he takes the plea that he does not know what is written therein. Be that as it may, a witness like P.W.2 cannot be said to be a trustworthy person. He has not made any statement that would go against the prosecution. Therefore, lack of support from P.W.2 does not affect the veracity of P.Ws.1 and 3. Learned Court below in Paragraphs 10 and 11 of the impugned judgment has made elaborate discussion on the veracity of the official witnesses and there is nothing to disagree with such observation. 7. Regarding the non-compliance of mandatory provisions contained in Section 50 of the N.D.P.S. Act it is suffice to say that said provision is not applicable to the case in hand. 8. Regarding the safe custody of the seized Ganja as well as the sample packets it may be noted that on the very date of the incident the accused was produced before the learned Special Judge. It was a holiday. Therefore, the learned Special Judge directed the S.I. of Excise to make necessary arrangement for production of seized articles on the next day. It was a holiday. Therefore, the learned Special Judge directed the S.I. of Excise to make necessary arrangement for production of seized articles on the next day. The diary maintained by the Sub-Inspector of Excise and his deposition in Court reveal that on the very date of the incident the Appellant was produced along with seized articles. The LCR further reflects that on the next date the learned Special Judge directed the Malkhana Clerk to receive the seized properties as per Mal Challan and learned S.D.J.M., Berhampur was directed to draw sample from the seized Ganja and to send the same for chemical examination. The LCR further reveals that on the same day the seized articles were produced before the learned S.D.J.M. who found that both the packets were having paper seal as well as Lac seal on each of them. Sample was drawn by the S.I. of Excise and the sample so collected was packed and sealed before the learned S.D.J.M. and the same was handed over to the S.I. of Excise to send it to the Chemical Examiner-cum-Deputy Drugs Controller, Orissa, Bhubaneswar. Chemical examiner's report marked Ext.10 reflects that the sample packets were received with impression of the specimen seal tallying with the impression of the seal appearing on the sample packets and those were received on 4.4.2005. No attempt has been made during cross-examination of the official witnesses to elicit material sufficient to create doubts as to the safe custody of the seized article so also the sample packet. Therefore, the argument advanced by the learned counsel for the Appellant that chance of tampering with the seized article as well as the sample sent to the chemical examiner has no leg to stand. 9. There is no reason for interference with the findings of the learned Court below. It is also submitted by the learned counsel for the Appellant that the Appellant having already spent more than 10 years behind the bar and he being unable to pay the fine because of his extreme poverty has to suffer further term of two years as default sentence, some leniency should be shown to him so that he would come out of the jail without being forced to serve the default sentence. Learned Special Judge has inflicted the minimum sentence as prescribed for commission of offence involving commercial quantity of Ganja. Learned Special Judge has inflicted the minimum sentence as prescribed for commission of offence involving commercial quantity of Ganja. Therefore, the amount of fine imposed cannot be reduced. However, finding that the Appellant has already spent 10 years and 8 months in jail the term of default sentence may be reduced so that he would be set at liberty at an early date. 10. In the result, the appeal is allowed in part. The order of conviction is confirmed. However, the sentence imposed stands modified to the extent that for default in the payment of fine of Rs.1,00,000/- the Appellant shall undergo R.I. for 1 year instead of 2 years. The Appeal is disposed of accordingly. Appeal partly allowed.