Orissa High Court
Premananda Sahu vs State Of Odisha on 3 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 229 of 1993
From an order dated 28.06.1993 passed in S.T. Case No. 263 of
1991 of learned Sessions Judge, Puri.
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Premananda Sahu ...... Appellant
-Versus-
State of Odisha ....... Respondent
Advocate(s) appeared in this case :-
_______________________________________________________
For Appellant : M/s. S. Sahoo, Amicus Curiae
For Respondent : Mr. S.K. Mishra,
[Addl. Standing Counsel]
_______________________________________________________
CORAM:
MR. JUSTICE SASHIKANTA MISHRA
JUDGMENT
03.08.2023
SASHIKANTA MISHRA, J.
The appellant questions the correctness of the
judgment passed by learned Sessions Judge, Puri on
28.06.1993 in S.T. Case No. 263 of 1991 whereby he was
convicted for the offence under Section 47(a) of Bihar and
Orissa Excise Act and was sentenced to undergo R.I. for
six months and to pay fine of Rs.500/-, in default, to
undergo R.I. for one and half months.
2. Prosecution case, briefly stated, is that on
20.07.1987, the SI of Excise, Sadar Mobile, Puri received
reliable information regarding possession and sale of
Ganja and other articles by the accused in his shop at
village Narada. He proceeded to the village and reached
there around 1.00 P.M. The accused was present in his
shop. The Excise Sub-Inspector arranged three witnesses
and conducted a search in the shop room of the accused
and found one jerry packet containing 60 grams of
Opium, one paper packet containing 150 grams of non-
duty paid Ganja, one paper packet containing 275 grams
of Bhang besides some cash. He seized the articles after
weighing them. As the accused had no licence or permit to
possess or sell the articles, he was arrested and on
03.11.1987 prosecution report under Section 9(a) of the
Opium Act and 47(a) of the Bihar and Orissa Excise Act
was submitted. The accused having taken the plea of
denial, charge was framed for the offence under Sections
18 and 20(b)(i) of the NDPS Act and Sections 47(a) of the
Bihar and Orissa Excise Act.
3. To prove its case, prosecution examined three
witnesses. P.Ws. 1 and 2, who were the witnesses to
search and seizure did not support the prosecution and
turned hostile. P.W. 3 is the IO. Basing on his sole
testimony, which the trial court found to be without any
blemish and trustworthy, held the accused guilty of the
alleged offences and convicted and sentenced him as
already stated hereinbefore.
4. Heard Miss Sradhanjali Sahoo, learned Amicus
Curiae appointed by the Court and Mr. S.K. Mishra,
learned Additional Standing Counsel for the State.
5. Miss Sahoo has raised two grounds to assail the
impugned order, namely, (i) the conviction is based on the
sole testimony of an official witness and (ii) no chemical
examination report was produced or proved that the
seized articles were Opium, Bhang and Ganja. Miss Sahoo
therefore contends that without the basic foundation the
prosecution case cannot be said to have been proved.
6. Mr. S.K. Mishra, learned Additional Standing
Counsel, on the other hand, submits that law is well
settled that conviction can be based entirely on the
version of the official witnesses, if the same is found to be
reliable and trustworthy. He further contends that even
without the chemical examination report, the articles were
proved to be contraband Opium, Bhang and Ganja by the
long experience of the Investigating Officer. He, therefore,
contends that the impugned judgment does not warrant
any interference.
7. Before going to the merits of the contentions raised
before this Court, it is seen that there were three
witnesses to seizure as per the prosecution report of
whom only two were examined as witnesses during trial.
One Subala Mallick was examined as P.W.1 while one
Lokanath Jethi was examined as P.W. 2. Both of them
turned hostile and did not support the prosecution at all.
This leaves the Court with the version of only the I.O. of
the case, who was examined as P.W.3. In his evidence, he
stated in detail about all the steps taken by him upon
getting reliable information regarding possession and sale
of excisable articles by the accused. He specifically
testified that from the smell and colour and his
departmental experience of twelve years, he could identify
the excisable articles as Opium, Bhang and Ganja
respectively. He was cross-examined in detail. Perusal of
the cross-examination reveals that nothing was elicited
from him that could even remotely question the
correctness of his testimony.
8. Coming to the first ground raised by learned Amicus
Curiae, it is trite law that it is the quality of evidence and
not quantity that matters. Therefore, only because
evidence of only one witness was available, it cannot ipso
facto be the said that the prosecution case was to be
rejected. Secondly, it has no where been even suggested
to P.W.3 as to if he had any inimical relationship with the
accused so as to implicate him falsely in the case. The
contention raised in this regard is therefore, not
acceptable.
9. As to the other ground raised by learned Amicus
Curiae that in the absence of any chemical examination
report, the seizure of excisable articles as per the
prosecution case could not have been taken to be proved,
this Court is not inclined to accept the same for the
reason that the I.O. having long experience in
investigating excise cases must be deemed to have the
requisite knowledge and skill to determine the nature and
type of the seized articles. In fact, as already stated P.W.3
clearly deposed that he had departmental experience of
twelve years and therefore, it is not unreasonable to
suppose that he possessed the required ability and skill
as to what the seized articles were. In the present case,
he has indentified the seized articles as Opium, Bhang
and Ganja and nothing has been suggested by the
defence, apart from a mere denial that the articles were
something else, if not Opium, Bhang and Ganja.
10. A perusal of the impugned judgment reveals that the
trial court has referred to some judgments of this Court,
namely, Abdul Gaffar vs. State of Orissa, reported in
63 (1987) CLT 370, Karpura Senapati vs. State,
reported in 64 (1987) CLT 763 and Ramasis Prasad v.
State, reported in 1991 (II) OLR 169. The basic principle
laid down in these decisions is that chemical examination
report is not a must to identify the seized intoxicant
substances and that if the evidence of the Excise Officer is
credible, the same can be acted upon to record a finding
of guilt. In the instant case, this Court has independently
scanned the evidence of P.W.3 and is satisfied that his
version is reliable and trustworthy. In such view of the
matter, the contentions raised by learned Amicus Curiae
has no legs to stand.
11. Learned Amicus Curiae has made an alternative
submission that since the alleged offence had taken place
way back in the year, 1987 when the accused was aged
about 35 years, he should not be visited with any further
penalty than that already undergone by him as more than
36 years have passed in the meantime and he is aged
more than 72 years. Learned State Counsel fairly submits
that it is for the Court to take a decision in this regard.
12. Having regard to the fact that the occurrence took
place more than 36 years ago and the appellant is
presently aged about 72 years, ends of justice would be
best served if the appellant is released as per the
provision of the Probation of Offenders Act instead of
being directed to serve the remaining part of the sentence
at this distance of time.
13. In the result, the appeal is allowed in part. The
impugned judgment of conviction is hereby confirmed but
the sentence is modified to the extent that instead of
serving the sentence imposed by the trial court, the
appellant shall be released as per Section 4 of the PO Act.
14. For the above purpose, the appellant shall appear
before the trial court on 4th September, 2023 for receiving
further instructions. It is made clear if the appellant does
not appear on the date fixed, the original sentence shall
revive. This order be communicated to the appellant in his
permanent address as also to the court below. The court
below shall also issue notice to the appellant as regards
the date of appearance.
15. Before parting, this Court records is appreciation for
Miss Sradhanjali Sahoo Amicus Curiae and Mr. S.K.
Mishra, learned Additional Standing Counsel for
rendering able assistance to the Court. The professional
fee of Miss Sahoo is fixed at Rs. 10,000/-.
(Sashikanta Mishra)
Judge
B.C. Tudu
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 08-Aug-2023 20:10:53
