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2019 DIGILAW 435 (ORI)

Sunil Kumar Naik v. State of Orissa

2019-07-08

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The appellant by filing this appeal' has assailed the judgment of conviction and order of sentence passed by the learned Addl. Dist & Sessions Judge-cum-Judge, Special Court, Deogarh in T.R. Case No. 3 of 2009, arising out of 2(a)C.C. Case No. 110 of 2009 on the file of learned S.D.J.M., Deogarh. By the said judgment, the appellant has been found guilty for commission of offence under section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, called 'the NDPS Act') and ordered to undergo rigorous imprisonment for a period of ten years and pay a fine of Rs. 1.00 lakh in default to undergo rigorous imprisonment for six months. 2. The prosecution case in brief is that on 19.12.2009 at about 7 A.M., the S.I. of Excise (P.W. 3) along with his staff including the constable (P.W. 1) had gone towards village Tutabari within the jurisdiction of Kundheigola Police Station and were performing petrol duty in the area. During said performance of patrolling duty, information was received from reliable source that the appellant (accused) was transporting ganja in four gunny bags. So they all proceeded to the side of the road near Tutabari U.P. School. It is said that the accused then was found sitting over four gunny bags. On suspicion that the bags were containing ganja, the S.I. of Excise-(P.W. 3) searched those gunny bags in presence of witnesses. It was then confirmed that the bags were containing ganja. The contents of the bags being weighed and it came to 99.40 kgs P.W. 3 then seized those ganja with the bags at the spot in presence of the witnesses, arrested the accused and observing all other formalities brought those seized items as also the accused to Deogarh and ultimately produced those before the court. On completion of investigation, final P.R. being submitted by the S.I. of Excise (P.W. 3), the accused faced the trial: In the trial, the accused took the plea of complete denial and false implication. From the side of the prosecution, in total three witnesses have been examined. P.W. 1 is the Excise Constable who had accompanied P.W. 3, the leader of the patrolling party who was then the S.I. of Excise, Deogarh. P.W. 2 has been examined as the independent witness to the search, recovery and seizure. From the side of the prosecution, in total three witnesses have been examined. P.W. 1 is the Excise Constable who had accompanied P.W. 3, the leader of the patrolling party who was then the S.I. of Excise, Deogarh. P.W. 2 has been examined as the independent witness to the search, recovery and seizure. The S.I. of Excise who was heading the patrolling party has come to the dock as P.W. 3. The prosecution besides leading the oral evidence by examining the above witnesses; has proved certain documents, more particularly, the seizure list Ext. 1, the written consent of the accused Ext. 6, spot map Ext. 7 and chemical examination report Ext. 8. 3. The trial court on analysis of evidence of the prosecution witnesses and keeping in view the contemporaneous documents prepared in course of investigation as proved in the trial has held that the prosecution has established its case beyond reasonable doubt that on the relevant date, time and place, the accused was found to be in possession of 99.40 kgs. of ganja kept in four gunny bags. Accordingly, he has been found guilty for commission of offence under section 20(b)(ii)(C) of the NDPS Act and sentenced as aforestated. 4. Learned counsel for the petitioner submits that the evidence let in by the prosecution is wholly in sufficient to connect the petitioner with the said four gunny bags said to have been containing in total 99.40 kgs of ganja. He submits that the trial court has completely erred in holding that the recovery of said bags containing ganja has been made from the possession of the accused. Inviting the attention of this Court to the evidence of P.Ws. 1, 2 and 3, it is his submission that even leaving aside P.W. 2 who is the independent witness, the evidence of P.Ws. 1 and 3 do not go to corroborate each other particularly on the vital score that the appellant was having any nexus with those four gunny bags containing ganja. He further submits that the evidence on record are not acceptable to say that what has been chemically examined was the part of contents of those bags seized in the case. He therefore submits that the judgment of conviction and order of sentence are liable to be set aside. 5. Learned counsel for the State submits that the discrepancy in the evidence of P.Ws. He therefore submits that the judgment of conviction and order of sentence are liable to be set aside. 5. Learned counsel for the State submits that the discrepancy in the evidence of P.Ws. 1 and 3 being minor and not on material particulars, the trial court has rightly ignored those. He further submits that the evidence on record are quite convincing to hold that the accused was in control and possession of those four gunny bags of ganja. It is his submission that the evidence of P.W. 3 is quite clear on the point that the sample collected from those four gunny bags has been sent for chemical examination and there remains no missing link so as to discard the report of the Chemical Examiner i.e. Ext. 8 so as to keep it out of the arena of consideration. 6. In order to address the above rival submission, first of all evidence of P.W. 1 being gone through, it is seen that he has stated that the accused was sitting over four gunny bags filled with ganja and was waiting the opportunity to transport those. It may be stated here that besides this, P.W. 1, two other Excise Constables were also the members of the patrolling party. The other important witness from the side of the prosecution is P.W. 3 who happens to be the Sub-Inspector of Excise, the leader of the patrolling party. He has stated that on their arrival, they found the accused to be there and so P.W. 3 sent an intimation in writing i.e. Ext. 4 to his Superior Authority through one constable namely, Nilamadhab Behera by issuing command certificate Ext. 5 in his favour. He next states that at the spot, he found the accused to be sitting on four numbers of gunny bags. So it is not a base where P.W. 3 has maintained silence as to the dealing of those gunny bags by the accused. Although at one point of time, he has said the accused to be simply there but at' that stage as he has not stated anything concerning the bags, his subsequent saying that the accused was sitting over the bags cannot be said to be an improvement in the direction of connecting the petitioner with the bags. So in my considered view the evidence of P.Ws. So in my considered view the evidence of P.Ws. 1 and 3 remain wholly consistent on the score that the accused was sitting over those gunny bags. Although P.W. 2 has not supported the case of the prosecution in great detail, in the absence of any material emerging from the evidence of P.W. 1 and 3 that they had any such reason to grind the axe against the accused in implicating him in commission of the said offence; the evidence of P.Ws. 1 and 3 cannot be discarded. The trial court has taken all the pain in undertaking the analysis of the evidence of P.Ws. 1 and 3 in great detail from different angle in ultimately saying that those are consistent and free from any discrepancy on any such material particular. In view of all the aforesaid, this Court finds the finding of the trial court that the accused was in control and possession of four gunny bags to be well in order. 7. Coming to next limb of submission of learned counsel for the accused, the evidence of P.W. 3 needs again to be gone through. He has stated to have sealed all the four gunny bags with ganja. He states to have done so at the spot in presence of the witnesses by putting his own brass seal and giving it in Zima vide zimanama, i.e. Ext. 3/1. He has further stated that on his application, the sample being taken from the contents of those four gunny bags in court, those have been sent through court for chemical examination. Chemical Examination Report i.e. Ext. 8 reveals that the sample packets were intact and those have been found to be ganja. Order sheet of the learned Addl. Sessions Judge-cum-Special Court, Deogarh dated 19.12.2009 reveals that the S.I. of Excise had made the prayer for collection of samples of ganja from the gunny bags for chemical examination and for onwards the dispatch. The petition being allowed, the samples have been drawn by learned S.D.J.M., Deogarh. The Court has not found those four gunny bags in any way or manner to have been meddle or the seals to have been tampered and had it been so, it must have been so noted in the order sheet. The petition being allowed, the samples have been drawn by learned S.D.J.M., Deogarh. The Court has not found those four gunny bags in any way or manner to have been meddle or the seals to have been tampered and had it been so, it must have been so noted in the order sheet. On that very day, those have been handed over to P.W. 3 for their deposit in the laboratory and the gunny bags containing the residue were kept in the Court Malkhana. For the above discussion, the submission of the learned counsel for the accused that the prosecution has failed to prove that it is those samples drawn from out of the contents of those four gunny bags have been examined by the chemical examiner falls flat. 8. In the wake of aforesaid, the finding of the trial court holding the accused guilty for commission of offence under section 20(b)(ii)(C) of the NDPS Act stands affirmed and the order of sentence is found to be well in order. Accordingly, the appeal is dismissed.