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2017 DIGILAW 51 (ORI)

Surendra Sabuta v. State of Orissa

2017-01-06

SATRUGHANA PUJAHARI

body2017
JUDGMENT S.PUJAHARI, J. - The appellant herein calls in question the judgment of conviction and order of sentence passed against him in Sessions Case No.33 of 1991 (N) on the file of the Sessions Judge, Ganjam-Berhampur. The learned Sessions Judge, Ganjam-Berhampur vide the impugned judgment and order held the appellant (hereinafter referred to as “the accused”) guilty under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “N.D.P.S. Act”) and sentenced him to undergo R.I. for three years and to pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of six months. 2. The case of the prosecution is that on 05.02.1991 at about 4.30 p.m. while S.I. of Excise, E.I.B. – Prasanna Kumar Mohanty (P.W.3) patrolling near Goilundi Bus stand, Berhampur with his constable – Fakir Charan Sahu (P.W.2), found the accused proceeding towards bus stand carrying a gunny bag emitting smell of ‘Ganja’. Suspecting the accused, P.W.3 detained him and found the gunny bag containing 7 Kgs. of ‘Ganja’. After observing all formalities, P.W.3 collected samples of said ‘Ganja’ from the gunny bag, seized the ‘Ganja’ with gunny bag, arrested the accused, produced him before the Sessions court, sent the sample of ‘Ganja’ for chemical examination to the State Drugs Control and Research Laboratory, Bhubaneswar. On completion of investigation, P.W.3 files prosecution report against the accused for alleged commission of offence punishable under Section 20(b)(i) of the N.D.P.S. Act. The accused being charged for the aforesaid offence and having pleaded not guilty, faced trial before the learned Sessions Judge, Ganjam-Berhampur. On conclusion of the trial, basing on the evidence of official witnesses viz. P.Ws.2 and 3, the learned trial court returned the impugned judgment of conviction and order of sentence as aforesaid discarding the defence plea of denial and false implication. 3. It is submitted by the learned counsel for the accused that since the learned trial court placed absolute reliance on the uncorroborated testimony of tainted official witnesses and the only independent witness (P.W.1) having not supported the prosecution version, and there being no clinching evidence that what was sent for chemical examination was the article kept in the gunny bag allegedly seized from the possession of the accused, the impugned judgment of conviction and order of sentence are unsustainable. 4. Per contra, the learned Addl. 4. Per contra, the learned Addl. Government Advocate appearing for the State defends the impugned judgment of conviction and order of sentence, the evidence of the official witnesses being trustworthy and unreliable. 5. On perusal of the materials placed on record, it would go to show that the version of the official witnesses with regard to fact that the accused was carrying a gunny bag containing ‘Ganja’ is not supported by the only independent witness, P.W.1 who has a tea stall near the spot of alleged seizure. However, it is settled law that the same can hardly be a ground to discard the evidence of the official witnesses to record an order of conviction, if the version of the official witnesses is otherwise trustworthy, inspire confidence to prove the guilt of the accused beyond all reasonable doubt. The aforesaid law has been well settled by a catena of decisions of the Apex Court and so also by this Court. One such decision is in the case of Nathusingh vrs. State of Madhya Pradesh, AIR 1973 S.C. 2783 wherein the Apex Court 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. 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. Reverting back, when Section 20(b)(i) of the N.D.P.S. Act provides for stringent punishment, the version of official witnesses must be clear, cogent and convincing to the effect that what was seized from the possession of the accused was nothing but ‘Ganja’. The prosecution in this regard must adduce clear evidence to show that what was sent for chemical examination had nexus with the articles found in the gunny bag seized from the possession of the accused. Here, the chemical examination report, Ext.10 unerringly reveals that seal put on the sample packet does not tally with the specimen seal separately sent to the Laboratory. Admittedly, the aforesaid sample was not sent through the process of the Court. Incidentally, the Investigating Officer himself had retained the seal the specimen of which was sent to the questioned Laboratory. There is nothing on record to show what precautions taken by P.W.3 for safe custody of seized articles before the sample was sent for chemical examination. Since no substantial material placed on record that what was sent for chemical examination was the representative sample of the article seized from the possession of the accused, there is no trustworthy evidence in this case that what was seized from the possession of the accused was nothing but ‘Ganja’. Prosecution has miserably failed to connect the sample sent to the chemical examiner as representative sample taken from the gunny bag seized from the possession of the accused as alleged by the prosecution. Hence, even if the version of the official witnesses with regard to seizure is acceptable, but there being no convincing evidence that what was sent for chemical examination was the sample collected from the seized packet, the impugned judgment of conviction and order of sentence are unsustainable. 7. Therefore, I would allow this criminal appeal and setaside the impugned judgment of conviction and order of sentence passed against the accused. Consequently, the accused is acquitted of the charge. The accused being on bail, the bail bond shall stand cancelled and surety discharged. 7. Therefore, I would allow this criminal appeal and setaside the impugned judgment of conviction and order of sentence passed against the accused. Consequently, the accused is acquitted of the charge. The accused being on bail, the bail bond shall stand cancelled and surety discharged. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal allowed.