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2016 DIGILAW 1117 (ORI)

Kabiraj Behera v. State of Orissa

2016-11-17

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellant assails the judgment of conviction and order of sentence dated 24.01.1992 passed by the learned Sessions Judge, Ganjam, Berhampur convicting him under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentencing him to undergo R.I. for 4 years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for a further period of six months. 2. Prosecution case as revealed from the record, may be stated succinctly as under :- On April 12, 1991 at 10 a.m. Prasanna Kumar Mohanty, P.W.3, the then S.I. of Excise, E.I.B., Berhampur while patrolling at Goilundi bus stand of Berhampur town, found the appellant holding a gunny bag approaching a bus bound for Bhubaneswar. Since the bag emitting peculiar odor of ‘Ganja’ suspecting transportation of ‘Ganja’, P.W.3 detained the appellant and after observing all formalities, searched the gunny bag and found it contained 21 Kgs. of ‘Ganja’. Thereafter, P.W.3 observing all formalities under the NDPS Act and Rules framed therein collected sample of ‘Ganja’ in presence of the appellant and witnesses, properly sealed the bulk and sample packets and prepared the seizure list, Ext.1/1, reached his office and after registration of the case, preparation of the connected documents, produced the appellant and seized articles before the Court of the SDJM, Berhampur, sent the sample packets to the chemical examiner and on completion of due investigation, P.W.3 prosecuted the appellant under Section 20(b)(ii)(C) of the Act. The appellant took the plea of denial. In order to substantiate the charge, prosecution examined only 3 witnesses apart from relied upon documentary evidence, Exts.1 to 8. Out of the witnesses, P.W.1 is said to be an independent witness who turned hostile to the prosecution. P.W.2 is Excise constable attached to the office and P.W.3 is the S.I. of Excise who not only detected the crime but also investigated and submitted charge-sheet. 3. In assailing the impugned judgment of conviction and order of sentence, it is argued by the learned counsel for the appellant that so far as allegation of recovery of gunny bag containing ‘Ganja’ from the person of the appellant is concerned, the prosecution has signally failed to establish that what was kept in the gunny bag was nothing but ‘Ganja’. In assailing the impugned judgment of conviction and order of sentence, it is argued by the learned counsel for the appellant that so far as allegation of recovery of gunny bag containing ‘Ganja’ from the person of the appellant is concerned, the prosecution has signally failed to establish that what was kept in the gunny bag was nothing but ‘Ganja’. It is also argued that P.Ws.2 and 3’s evidence does not indicate that the alleged seized articles were properly sealed and kept in safe custody till produced in the Court and immediately after the alleged seizure the seized articles were not produced before the nearest Police Station and the seized articles were not re-sealed by the O.I.C. of the concerned Police Station in token of safe custody. It is submitted that the prosecution should have ruled out the possibility of tampering with the seized articles by leading cogent evidence to the effect that the articles were properly sealed at the spot and brass seal was kept in the custody of the independent witnesses. In absence of such evidence, it would not be safe to infer that what was examined in the Laboratory was actually recovered from the possession of the appellant. The learned counsel or the appellant also contends that the prosecution has failed to establish due compliance of the provisions under Sections 42, 52, 55 and 57 of the Act by the Investigating Officer. Lastly, it is submitted that P.W.3 himself having conducted search, effected seizure and arrested the appellant and when admittedly he had kept the seized articles in his Malkhana where he is the custodian of the said Malkhana, should not have proceeded with the investigation in order to ensure fair play and impartiality. 4. Per contra, the learned counsel for the State submits that the trial Court on thorough consideration of evidence assigned acceptable reasons in support of the finding recorded in the impugned judgment of conviction which does not call for any second opinion. 5. Before adverting to the contentions raised, it would be apposite to mention that there is nothing in law that unless version of the official witnesses to the search and seizure is corroborated by the independent witnesses in material particulars, the same cannot be relied upon. The Apex Court in the case of Nathusingh vrs. 5. Before adverting to the contentions raised, it would be apposite to mention that there is nothing in law that unless version of the official witnesses to the search and seizure is corroborated by the independent witnesses in material particulars, the same cannot be relied upon. The Apex Court in the case of Nathusingh vrs. State of Madhya Pradesh, AIR 1973 S.C. 2783 , have held as under :- “The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused.” A Division Bench of this Court in the case of Nilambar Sahu vrs. State of Orissa, (1990) 3 OCR 219 relating to Bihar and Orissa Excise Act have held as under :- “Even if the evidence of these two witnesses be not available to the prosecution to establish its case, the evidence of the three official witnesses cannot be brushed aside. Even a closure scrutiny of the evidence does not permit us to differ with the finding of fact reached by the two Courts below in this regard.” Similarly, in the case of Shyam Sunder Rout vrs. State of Orissa, 1991 CRI.L.J. 1595, this Court have held as follows :- “xxxxxx xxxxxx xxxxx It is well settled in law that where seizure witnesses turn hostile, the evidence of the departmental witnesses can be relied upon to prove the fact of seizure unless there is intrinsically anything which appears to make their evidence non-trustworthy. Xxxx xxxxx” 6. In the backdrop of such legal scenario, when the evidence of P.Ws.2 and 3 are tested on the anvil of probability and acceptability, I find P.W.3 has stated as to how he found the appellant proceeding towards a bus holding a gunny bag emitting peculiar odor of ‘Ganja’ and how in presence of available witnesses and his constable, P.W.2 he detained the appellant and when he does not like to be searched in presence of any Gazetted officer or Magistrate he conducted search and on search found bag containing 21 Kgs. of ‘Ganja’ on weighment. However, nothing substantial has been brought on record in cross-examination to discard such evidence outright he having no axe to grind against the appellant. There was only a suggestion that no ‘Ganja’ was recovered from the appellant. of ‘Ganja’ on weighment. However, nothing substantial has been brought on record in cross-examination to discard such evidence outright he having no axe to grind against the appellant. There was only a suggestion that no ‘Ganja’ was recovered from the appellant. The evidence of P.W.2, the Excise constable lends absolute assurance to the version of P.W.3 as to the factum of search and seizure and recovery of ‘Ganja’ from that gunny bag. Despite careful sifting of evidence, I do not find any material to hold that P.Ws.2 and 3 had any animosity which prompted them to implicate the appellant in a case of this nature. 7. On further scrutiny, it is brought on record that P.W.3 drew 50 grams of samples from the bulk ‘Ganja’ after observing all formalities in presence of the witnesses available and subsequently he produced the seized articles and sample packets before the Court of the S.D.J.M. Ext.7, the report of the chemical examiner revealed that “The sample gives positive identification test for ‘Ganja’ (cannabis). The representative sample is considered to be ‘Ganja’ (cannabis) on the basis of identification test performed as defined under Section 2(iii)(b) of the NDPS Act”. 8. P.W.3 in categorical terms has stated that he stitched sample packets and bulk ‘Ganja’ and properly sealed and proved the gunny bag as M.O.III and second sample packets as M.O.I and M.O.II. He has submitted his detailed reports to his immediate superior under Ext.5 wherein he has given a detail description / narration of events. Since contraband article was recovered from a container, non-compliance of Section 50 of the Act is of no avail to the appellant inasmuch as safeguard of the mandatory provision under Section 50 of the Act only applies in case of personal search and not to search of vehicle, container, bag or premises. [Megha Singh vrs. State of Punjab, (2003) 26 OCR (SC) 523]. The law as laid down in the case of Makhan Singh vrs. State of Haryana, (2015) 12 SCC 247 , cited by the learned counsel for the appellant, is not applicable in the instant case there being no recovery of personal search of the appellant. 9. Thus, on a careful sifting of materials placed on record, I am convinced that the appellant was found in unlawful possession of 21 Kgs. of ‘Ganja’ as alleged by the prosecution beyond reasonable doubt. 9. Thus, on a careful sifting of materials placed on record, I am convinced that the appellant was found in unlawful possession of 21 Kgs. of ‘Ganja’ as alleged by the prosecution beyond reasonable doubt. The learned trial Court has discussed all such aspects in thread bare and such conclusion being consistent with the evidence and well reasoned does not call for any second opinion. The appellant has failed to account for the possession of ‘Ganja’ satisfactorily. The presumption under Sections 35 and 54 of the Act against the culpable mental state and possession of contraband articles not found rebutted by the appellant on any count. 10. On reappraisal of the evidence on record, this Court sees no illegality and infirmity in the judgment of conviction and order of sentence warranting an interference of this Court in exercise of appellate jurisdiction. 11. So far as the sentence imposed is concerned, since the appellant was found in possession of more than 20 Kgs. of ‘Ganja’ and the sentence imposed is four years, the same also appears to be commensurate to the facts and circumstances of the case inasmuch as after amendment of the Act, the carrying of more than 20 Kgs of ‘Ganja’ is a stringent offence which prescribes minimum sentence of ten years. Hence, this Court does not think it just and proper to interfere with the sentence imposed. 12. Consequently, for the foregoing reasons, this appeal filed by the appellant fails and, as such, it stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal dismissed.