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2019 DIGILAW 470 (ORI)

Paskul Behera v. State Of Orissa

2019-07-19

S.PUJAHARI

body2019
JUDGMENT : S. PUJAHARI, J. The judgment dated 18.01.2010 passed by the learned Addl. Sessions Judge-cum-Special Judge, Rayagada in C.T. No.75 of 2008 convicting the present appellants in both the appeals under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the N.D.P.S. Act”) and sentencing each of them to undergo R.I. for a period of ten years and pay a fine of Rs.1 lakh, in default, to undergo R.I. for a further period of two years, is under challenge in both these appeals. For the sake of convenience, both the appeals are being disposed of by this common judgment. 2. Prosecution case, in substance, is as follows : On 11.10.2008 at 4 a.m., Sri Laxman Dandasena (P.W.6), S.I. of Police, and other police personnel of Gunupur Police Station during course of night patrolling at Sanyasipur area, detected the appellants being engaged in transportation of ‘Ganja’ in a Tata Indica car bearing registration No.CG-07-2414. The P.W.6, on requisition, procured presence of an Executive Magistrate (P.W.5) at the spot and in presence of the P.W.5 and other witnesses, he conducted personal search of the appellants and recovered cash of Rs.13,096/-, one Nokia Mobile set, one telephone diary etc., and during search of the aforesaid vehicle, the P.W.6 recovered nine gunny bags containing ‘Ganja’ which on weighment was found to be 149 kgs. and 410 grams in toto. The P.W.6 then collected samples from the bags and after effecting seizure of the recovered ‘Ganja’ as well as involved vehicle, produced the same and the appellants before the I.I.C., Gunupur Police Station (P.W.7). The P.W.6 also lodged a written report of the incident, which was treated as F.I.R. and investigation was taken up by the P.W.7. The P.W.7 kept the seized ‘Ganja’ and sample packets in safe custody in the P.S. Malkhana and subsequently, he produced the same along with the appellants before the Court, and sent the sample to Regional Forensic Science Laboratory, Berhampur, under order of the Court, for chemical examination. The P.W.7 also sent a detailed report of the incident to his higher authority, i.e., the Superintendent of Police, Rayagada. The P.W.7 recorded statements of the P.W.6 and other witnesses, visited the spot, collected chemical examination report, took other steps in connection with investigation and upon his transfer, he made over charge of the investigation to Sri A.C. Barik (P.W.9), the then Inspector, Gunupur Police Station. The P.W.7 recorded statements of the P.W.6 and other witnesses, visited the spot, collected chemical examination report, took other steps in connection with investigation and upon his transfer, he made over charge of the investigation to Sri A.C. Barik (P.W.9), the then Inspector, Gunupur Police Station. The P.W.9 submitted the charge-sheet against the appellants suggesting their trial under Section 20(b)(ii)(C) of the N.D.P.S. Act. 3. Since the appellants pleaded not guilty to the charge, trial was held, in course of which the prosecution examined nine witnesses in toto and produced documentary evidence vide Exts.1 to 24. The samples of the seized substance were also produced during the trial vide M.Os.I to XI. The appellants adduced no evidence in defence. 4. The learned trial Court on evaluating the evidence on record held the prosecution to have proved the charge against the appellants beyond reasonable doubt, and accordingly, the appellants were convicted and sentenced as aforesaid. Hence, the Appeal. 5. The conviction of the appellants is challenged on the grounds, inter-alia, that the alleged recovery having been made from a vehicle, the same cannot be attributed to the physical and conscious possession of the appellants, especially when the investigation has not been directed as to the ownership of the involved vehicle, there is no independent corroboration to the evidence of P.W.6 and other official witnesses, there is no sufficient evidence to show compliance of the mandatory requirements of Section 55 of the N.D.P.S. Act, there are discrepancies and errors in the documents, such as, noting of dates, Station Diary entry, G.R. Case no. etc. which are suggestive of the documents being fabricated for the purpose of the case. It is contended by the learned counsel for the appellants that in the face of the discrepancies and contradictions in the testimonies of the official witnesses, and there being no independent corroboration, the learned trial Court ought not to have placed reliance on those official witnesses who were highly interested for the success of prosecution. According to him, the learned trial Court failed to appreciate the evidence in right perspective, for which the impugned judgment is liable to be set-aside. 6. It is, however, the submission of the learned Addl. According to him, the learned trial Court failed to appreciate the evidence in right perspective, for which the impugned judgment is liable to be set-aside. 6. It is, however, the submission of the learned Addl. Standing counsel appearing for the State that the evidence of the official witnesses being cogent, credible and sufficient, and the findings recorded by the learned Court below being based upon proper scrutiny of the entire materials on record, and discrepancies as pointed out by the appellants having already been dealt with and rightly ignored by the learned trial Court, there remains no scope for this Court to interfere with the impugned judgment. 7. I have gone through the impugned judgment as well as the evidence adduced by the prosecution during the trial. P.W.6, who spearheaded the patrolling and the exercise at the spot, has deposed in detail regarding the detection, seizure and the follow up taken at the spot. As stated by him, the appellant – Alok Chakrabarty was driving the involved vehicle and the other two appellants were sitting in the front seat, and nine gunny bags with contents emitting ‘Ganja’ smell were found loaded in the rear seat of the vehicle. He has further deposed that on his requisition, the B.D.O.-cum-Executive Magistrate, Gunupur (P.W.5) arrived at the spot and in presence of the P.W.5 and other witnesses personal search of the appellants was conducted, followed by a search of the involved vehicle. The written offer given to the appellants inviting their option under Section 50 of the N.D.P.S. Act have been proved vide Exts.6/1, 7/1 and 8/1 and their endorsement with signatures regarding exercise option find place at Exts.6/3, 7/3 and 8/3. The P.W.6 has further deposed to have recovered nine packets containing ‘Ganja’ from inside the vehicle, got the contents weighed at the spot to find the same to be 149 Kgs. and 410 grams and to have collected samples in two parts from the individual packets. He has also proved formal seizure of the contraband substance vide the seizure list marked as Ext.2/1 and the seizure of cash, mobile phone etc. recovered during the personal search of the appellants vide a separate seizure list marked as Ext.1/1. The F.I.R. containing the details of the exercise undertaken by him at the spot has been proved as Ext.9 which affords a piece of documentary corroboration to his oral evidence. recovered during the personal search of the appellants vide a separate seizure list marked as Ext.1/1. The F.I.R. containing the details of the exercise undertaken by him at the spot has been proved as Ext.9 which affords a piece of documentary corroboration to his oral evidence. During cross-examination, the defence elicited from him that though the seizure list vide Ext.2/1 had been prepared by him at the spot before registration of the F.I.R., the F.I.R. number was found noted in Ext.2/1. The P.W.6 in this regard gave clarification that when from the spot he intimated the incident to the I.I.C. of the Police Station over telephone, the latter told him the F.I.R. number. P.W.6 has also deposed that his personal brass seal which had been used by him in sealing the contraband articles and samples, was left in the custody of the P.W.1, independent witness. As it appears, although during the trial the P.W.1 disowned his knowledge about the factum of seizure of the contraband articles and was declared hostile by the learned prosecution counsel, he admitted to have taken in his custody the personal brass seal under a zimmanama executed by him. 8. P.W.5, the Executive Magistrate, has deposed, inter-alia, that as per the order of the S.D.M., Gunupur, he reached the spot and that in presence of himself and two local witnesses, the S.I. of Police (P.W.6) took personal search of the appellants and recovered one mobile phone, cash etc. From the possession of the appellant – Paskul Behera and prepared seizure list in that respect. He further claimed to have witnessed recovery of nine bags of ‘Ganja’ from the Indica car, weighment of the contents thereof, collection of samples therefrom etc. by the P.W.6. As a witness to the factum of seizure, he has also signed both the seizure lists. 9. P.Ws.3 and 4, who were two police witnesses, have also claimed their direct knowledge about the detection, recovery and seizure at the spot and nothing substantial appears to have been elicited by the defence during their cross-examination much less to suspect their credibility. 10. P.W.7, the I.I.C., Gunupur Police Station, has deposed about the steps taken by him in course of the investigation. His evidence is that the P.W.6 presented a written report vide Ext.9 and produced the accused-appellants, seized ‘Ganja’, seized involved vehicle, seized sample packets etc. 10. P.W.7, the I.I.C., Gunupur Police Station, has deposed about the steps taken by him in course of the investigation. His evidence is that the P.W.6 presented a written report vide Ext.9 and produced the accused-appellants, seized ‘Ganja’, seized involved vehicle, seized sample packets etc. He further deposed that treating the Ext.9 as F.I.R. he registered P.S. Case No.105 of 2008, took charge of the seized properties, re-sealed nine packets of ‘Ganja’ by affixing the impression of his personal seal, kept those articles in the Malkhana of the Police Station, retained the key of the Malkhana with himself and made entries in the Malkhana register. He has further stated that he forwarded the accused persons along with the seized ‘Ganja’ and sample packets to the Court, and on his prayer, the samples were sent by the Court to the Regional Forensic Science Laboratory, Berhampur for chemical examination. Ext.15 is the chemical examination report. The detailed report submitted by the P.W.7 to his superior authority, i.e., Superintendent of Police, Rayagada has been proved vide Ext.20. The defence during cross-examination elicited from him that he did not re-seal each sample packet by using his personal seal. To this, P.W.7 explained that on keeping all the individual sample packets in one big packet, he re-sealed the same by affixing impression of his personal brass seal. The defence confronted to him some discrepancies regarding the mention of dates, noting of the number of the S.D. entry etc. in some papers or documents, but those from their very nature do not appear to be of any consequence. 11. P.W.8, the S.I. of Police of Gunupur Police Station, has deposed that on the relevant date he was in-charge of the Malkhana register maintained at the Police Station. The said register has been seized by the P.W.7 from his possession under a seizure list marked as Ext.12. The relevant entry in the Malkhana register has also been proved as Ext.24 through the P.W.8. 12. All the official witnesses referred to above, have been subjected to cross-examination by the defence, but what it appears, no major discrepancy or contradiction has been elicited from them by the defence so as to shake their credibility or suggest their any bias or prejudice against the accused-appellants, much less to affect the probative value of the prosecution case. 12. All the official witnesses referred to above, have been subjected to cross-examination by the defence, but what it appears, no major discrepancy or contradiction has been elicited from them by the defence so as to shake their credibility or suggest their any bias or prejudice against the accused-appellants, much less to affect the probative value of the prosecution case. The P.Ws.3, 4, 5 and 6 are corroborative of one another, and the prosecution has also proved through the P.Ws.6 and 7, compliance of the mandatory provisions of the Act. Although two independent witnesses examined by the prosecution have not supported the prosecution case, that per se cannot be a ground to distrust the official witnesses whose evidence stands judicial scrutiny. Apathetic attitude of independent witnesses towards the process of investigation or prosecution is not uncommon, and in that backdrop, a well made out prosecution cannot be allowed to suffer for want of independent support. That apart, the evidence of official witnesses like that of any other witnesses is entitled to the same treatment and weightage, and independent corroboration is not sine-qua-none for placing reliance on the testimony of the official or departmental witnesses. The learned trial Court appears to have made detail analysis and scrutiny of the materials on record and has rightly rendered the findings of guilt against the appellants. The discrepancies and omissions as pointed out by the learned counsel for the appellants, have been dealt with by the learned trial Court, and the same has been rightly ignored as being of no consequence. This Court finds no reason to interfere with the impugned judgment. 13. In the result, both the criminal appeals are found to be devoid of merit and, as such, stand 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.