Orissa High Court
Muna Panda vs State Of Odisha on 1 July, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.353 of 1992
In the matter of an Appeal under Section 374 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 23rd September, 1992 passed by the
learned Sessions Judge, Koraput, Jeypore Camp at Malkangiri in
Sessions Case No.31 of 1992.
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1. Muna Panda .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Subham Sharma
(Advocate)
For Respondent - Mr.P.K.Mohanty
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 24.06.2024 : Date of Judgment : 01.07.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in
question the judgment of conviction and order of sentence dated
23rd September, 1992 passed by the learned Sessions Judge,
Koraput, Jeypore Camp at Malkangiri in Sessions Case No.31 of
1992 corresponding to G.R. Case No.447 of 1991 pending on the
file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),
Malkangiri.
The Appellant (accused) thereunder has been convicted for
commission of the offence under section 20(b)(i) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (in short, 'the
N.D.P.S. Act'). Accordingly, he has been sentenced to undergo
rigorous imprisonment for one and half year for commission of
the said offence.
2. The prosecution case, in short, is that the accused was
found to be in possession of 6 kgs and 100 grams when he was
searched. It is said that the accused was carrying an Attache and
this contraband ganja was there inside it when the search was
made and that was followed by the seizure.
3. The prosecution, in order to establish the charge against the
accused, has examined six witnesses (P.Ws.1 to 6) and has proved
several documents, which have been admitted in evidence and
marked Exts.1 to 4, which includes the report of the chemical
examiner and the plain paper FIR (Ext.2)
4. Learned counsel for the Appellant submitted that when in
the present case, the seizure of the contraband ganja has taken
place on 15.11.1991 and the accused was forwarded in custody to
Court on 16.11.1991, the sample of contraband ganja was sent for
chemical examination on 09.12.1991 and thus when absolutely no
evidence from the side of the prosecution is forthcoming as to
where such seized contraband had been kept and no such
evidence being there with regard to their safe custody as the
chance of tampering with the same is not altogether ruled out, the
judgment of conviction and order of sentence, impugned in this
Appeal, cannot be sustained as it would be unsafe to hold that
what was seized from the possession of the accused was sent for
chemical examination and that being examined; the report has
come that it was contraband ganja.
5. Learned counsel for the Respondent submitted all in favour
of the finding of guilt against the accused as has been returned by
the Trial Court. According to him, the contraband seized articles,
having been kept in P.S. Malkhana under lock and key, said
action of the Seizing Officer cannot be held to be doubtful or
unsafe to be relied upon.
6. Keeping in view the submissions made, I have gone
through the impugned judgment of conviction and have also
travelled through the evidence let by the parties and gone
through the documents admitted in evidence.
7. The I.O. (P.W.6), who was then the in-charge of the
Malkhana of the P.S., has stated to have seized the contraband,
detected in course of investigation on 15.11.1991 and on
16.11.1991, the accused was forwarded in custody to the Court of
learned S.D.J.M., Malkangiri. He does not state as to if on that day
the seized contraband articles or even the sample packets were
produced before the Court. He says that the sample was sent for
chemical examination on 09.12.1991. There is absolutely nothing
in his evidence to show as to during the period from the time of
seizure till production in Court or dispatch of the sample of the
Chemical Examiner, how the seized contraband was being dealt
with and in whose custody those were lying in pointing that
there was that those were kept in safe custody living, no scope of
tampering with the same. The relevant order dated 09.12.1991
passed by the learned S.D.J.M., Malkangiri simply finds mention
that the sample of ganja kept in a packet was dispatched to the
State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for
examination and nothing further is indicated therein. It has not
been stated as to who produced the same before the Court.
In such state of affair, the prosecution is found to have
failed to prove that what was seized from the possession of the
accused was contraband as certified by the chemical examiner.
8. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 23rd September, 1992
passed by the learned Sessions Judge, Koraput, Jeypore Camp at
Malkangiri in Sessions Case No.31 of 1992 are hereby set aside.
(D. Dash),
Judge.
Basu
Location: HIGH COURT OF ORISSA : CUTTACK
