Orissa High Court
From The Order Dated 31.03.1993 ... vs State Of Odisha on 24 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 110 of 1993
From the order dated 31.03.1993 passed by Sri P.C. Pathy, 1st
Addl. Sessions Judge, Cuttack convicting the appellant U/s.
20(b)(i) of the NDPS Act.
---------------
Dhruba Charan Das & another ...... Appellants
-Versus-
State of Odisha ....... Respondent
Advocate(s) appeared in this case :-
_______________________________________________________
For Appellants : M/s. D.R. Bhokta (Amicus
Curiae).
For Respondent : Mr. S.K. Mishra,
[Addl. Standing Counsel]
_______________________________________________________
CORAM:
MR. JUSTICE SASHIKANTA MISHRA
JUDGMENT
24.08.2023
SASHIKANTA MISHRA, J.
The present appeal is directed against the judgment
of conviction and sentence passed by learned 1st
Additional Sessions Judge, Cuttack on 31.03.1993 in
convicting the appellant under Section 20(b)(i) of the
NDPS Act and in sentencing him to undergo R.I. for one
year and fine of Rs. 2000/-, in default, to undergo R.I. for
six months and further to undergo R.I. for six months and
to pay fine of Rs.500/-, in default, to undergo R.I. for one
month more under Section 47-A of Bihar and Orissa
Excise Act. Both the sentences as above were directed to
run concurrently.
2. Be it noted that during pendency of the appeal, the
appellant No.2-Bhimsen Rout expired for which the case
against him stood abated.
3. The prosecution case, briefly stated is that on
10.03.1990 while the S.I. of Excise, Mobile Squad,
Cuttack was performing patrolling duty at about 7.00
A.M. at Machhua Bazar, Cuttack, he saw the present
appellant and the co-accused moving in a TVS Moped with
a bag hanging on the rod joining the handle of the moped.
On suspicion, the S.I. detained them but they tried to
escape. A little while later however, the Excise staff
managed to apprehend the accused persons. On search,
the bag was found to contain a paper packet which in
turn, contained one kilogram of semi dried ganja and
another packet containing one kilogram of non-duty paid
Bhang. The contraband were thus seized after observing
the necessary formalities and the accused persons were
arrested. Both the accused persons along with the seized
articles were produced before the learned S.D.J.M.,
Cuttack from where samples were drawn and sent for
testing to the State Drugs Control and Research
Laboratory, Bhubaneswar.
4. The defence plea was of denial.
5. To prove its case prosecution examined three
witnesses of whom P.W.1 is the Informant and I.O.. P.W. 2
is a seizure witness. P.W.3 is also a seizure witness.
Besides, prosecution also proved some documents marked
Exhibits 1 to 9 and material objects marked MOs. I to III.
6. After appreciating the evidence on record, the trial
court found both the offences clearly proved and therefore,
convicted the accused persons and sentenced them as
aforesaid.
7. Heard Mr. D.R. Bhokta, learned Amicus Curie and
Mr. S.K. Mishra, learned Additional Standing Counsel for
the State.
8. Mr. Bhokta would argue that the mandatory
provisions of the N.D.P.S. Act have not been followed in
the case inasmuch as the sample drawn from the bulk
contraband was produced before the learned S.D.J.M. on
16.03.1990 and on the same day, the S.D.J.M. passed
order for its chemical examination. But, the sample
packets were produced before the Scientific Officer on the
next day, i.e., on 17.03.1990. This raises a question as to
where the seized contraband was kept in between 16th and
17th. This, according to Mr. Bhokta renders the
prosecution case doubtful, the benefit of which should go
to the accused.
9. Mr. S.K. Mishra, on the other hand, has argued that
the ground raised by learned Amicus Curie cannot be
accepted for the reason that all necessary formalities
prescribed in the statute were duly followed right from the
time of apprehension of the accused persons till their
production before the learned S.D.J.M. along with the
seized contraband. There is therefore, no illegality or
infirmity in the impugned judgment so as to persuade this
Court to interfere.
10. In order to appreciate the ground raised by learned
Amicus Curie, this Court has scanned the evidence on
record independently. Since no question has been raised
as regards the search of the accused persons at the spot
and the seizure of contraband articles, it is not necessary
to dwell upon the evidence of the informant/IO in detail.
Having regard to the specific ground raised by the Amicus
Curie as referred above, the testimony of P.W.1 is relevant
to such extent. The following statement made by P.W.1 is
noteworthy.
"Then I arrested the accused persons and
forwarded them to the Court on the same day,
i.e., 10.03.1990 along with the seized articles,
along with a forwarding report and with a
prayer to the S.D.J.M., Cuttack to send the
samples for chemical examination. Ext.2 is
the forwarding letter and Ext.3/ is the prayer
for sending the seized Ganja and Bhang for
chemical examination. The samples were sent
for chemical examination no 16.03.90. I
obtained the receipt from the Junior Scientific
Officer Ext.4 is the forwarding letter of the
S.D.J.M. Ext.5 is the receipt obtained from the
Scientific Officer. The chemical examination
report was received by the Court which is
marked Ext.6. The opinion of the chemical
examination was that the sample of Ganja
was considered to be Ganja cannabis and the
sample of Bhang was considered to be
Bhang."
The other witnesses have also more or less supported the
prosecution case as regards search and seizure of the
contraband at the spot. The trial Court also noted that the
seized contraband as well as the sample packets were
produced before the learned S.D.J.M. in a sealed
condition whereupon learned S.D.J.M. verified the seals
and the sample packets were sent for chemical
examination containing the seal of the S.D.J.M. Ext.3 is
the request made by P.W.1 before the learned S.D.J.M. for
passing necessary orders for sending the samples drawn
for chemical analysis. Ext.4 is the letter requesting the
Scientific Officer to examine the samples and to opine
whether they are ganja and Bhang or not. Ext.5 is the
receipt issued by the Junior Scientific Officer, showing the
receipt of one "sealed cloth packet" containing the sample
packets. Ext.6 is the chemical examination report. From
the above narration, it is clear that the contraband was
seized at the spot and samples were drawn therefrom. The
bag containing the contraband articles were sealed at the
spot and so also the sample packets. Both the sample
packets were produced before the learned S.D.J.M., who
was satisfied as regards the seal already affixed thereon
and passed orders for sending the same for chemical
examination after affixing his own seal. Most importantly,
the Junior Scientific Officer also found the seal intact as
evident from Ext.5. Thus, it can be easily held that the
very same article which was recovered from the
possession of the accused persons at the spot was sealed
and so also the samples drawn therefrom. Further, the
very same samples were produced before the Scientific
Officer for chemical examination. It is true that learned
S.D.J.M. appears to have passed order in this regard on
16.03.1990 and the samples were received by the Junior
Scientific Officer on the next day, i.e., 17.03.1990 but on
the face of clear evidence that the seals were intact, it
cannot be straightway presumed or held that the sample
packets had been tampered with. For the above reasons
therefore, the argument advanced by learned Amicus
Curie cannot be accepted. This Court finds that the trial
court has scanned the evidence on record meticulously
and has considered all the grounds raised by the accused
persons. In view of what has been said hereinbefore, this
Court finds hardly any reason to interfere with the
findings of the trial court.
11. Mr. Bhokta, the Amicus Curie has made an
alternative submission that the offence was committed
more than thirty years back when the appellant was aged
about twenty five years. Presently, he is aged more than
fifty five years and no other criminal activity shown
against him. Under such circumstances, it would be too
harsh to send the appellant to prison at this distance of
time. In response, Mr. S.K. Mishra learned State Counsel
submits that the offence having been proved beyond
reasonable doubt and the convict having been visited with
minimum punishment, the sentence need not being
interfered with.
This Court is however of the view that the occurrence
took place more than three decades ago. The appellant
appears to have spent some time in prison during trial
and thus, understood the rigors of law. Therefore, ends of
justice would be best served if, instead of sending the
petitioner to jail to serve the remaining part of his
sentence, the same is confined to the period of detention
already undergone by him.
12. For the forgoing reasons therefore, the appeal is
allowed in part. The impugned judgment of conviction is
confirmed but the sentence is modified to the extent that
the same shall be confined to the period of imprisonment
already undergone by the appellant. Before parting, this
Court records its appreciation for the able assistance
rendered by Mr. D.R. Bhokta, the Amicus Curie. His
professional fee is fixed at Rs.10,000/- .
(Sashikanta Mishra)
Judge
B.C. Tudu, Sr. Steno
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 30-Aug-2023 18:35:49
