Orissa High Court
Santosh Behera vs State Of Odisha on 20 May, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.319 of 2024
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 11th March, 2024 passed by the
learned Additional Sessions Judge-Cum-Special Judge (N.D.P.S.),
Athagarh in Special Case No.01 of 2017.
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1. Santosh Behera .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - M/s.Nikunja Kumar Rout,
A.K. Budhia, S.K. Rout &
B.R. Swain
(Advocates)
For Respondent - Mr.P.K. Mohanty,
Addl. Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 08.05.2024 : Date of Judgment : 20.05.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and order of sentence dated 11th
March, 2024 passed by the learned Additional Sessions Judge-
Cum-Special Judge (N.D.P.S.), Athagarh in Special Case No.01 of
2017 arising out of 2(a) CC Case No.22 of 2017 on the file of
learned S.D.J.M., Athagarh corresponding to Mobile-II Charge,
Cuttack P.R. No.147 of 2016-17.
The Appellant (accused) thereunder has been convicted for
commission of the offence under sections 20(b)(ii)(B) 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 four (4) years and pay fine of
Rs.50,000/- (Rupees Fifty Thousand) in default to undergo
rigorous imprisonment for six (6) months for commission of the
of the said offence.
2. PROSECUTION CASE:-
When the Sub-Inspector (S.I.) of Excise (P.W.4) and other
staff of Excise Mobile-II, Cuttack were performing patrolling duty
at Kolathapangi Dera under Gurudijhatia Police Station (P.S.),
information from reliable source was received regarding
commission of the offence under the N.D.P.S. Act. Said
information, being reduced into writing, was communicated to
the Supervisory Authority by P.W.4 by sending a copy of the
noted information. Thereafter, as per the instruction of the
Inspector of Excise, the Sub-Inspector of Excise (P.W.4) with
others proceeded to the place to ascertain the correctness of the
said information. When they were so proceeding, on the way
near Dera Upper Primary School, they detected the accused
carrying a jari bag on his shoulder. Suspicion, being raised by
observing the conduct of the accused, P.W.4 detained him. P.W.4
then gave his identity to the accused and told him about the
reason for his detention. The accused, then being asked, told to
have been carrying ganja in the said jari bag. P.W.4 then, having
observed the legal formalities, conducted the search and
recovered the jari bag carrying 13 kgs of contents, which he could
later ascertained by his departmental experience and training as
ganja. The contents were then weighted and repacked in the said
jari bag. P.W.4 sealed the same by affixing paper seal containing
the signature of the accused and witnesses and using his personal
brass seal. The bag, being seized, the brass seal was given in
zimanama of P.W.1. P.W.4 then arrested the accused and
produced him before the learned S.D.J.M., Athagarh with the
seized articles making a prayer to collect the sample from the
contents of the bag and send the same for chemical examination.
It is stated that the samples, being collected by the learned
S.D.J.M., the same, being examined, were certified to be nothing
but ganja. Accordingly, final Prosecution Report was submitted
placing the accused to have face the trial for commission of the
offence under section 20(b)(ii)(B) of the N.D.P.S. Act.
3. During trial, the prosecution, in total has examined as many
as four (4) witness and the defence has examined one witness in
support of his defence of denial of false implication. Several
documents, being proved from the side of the prosecution, those
were admitted in evidence and marked Exts.1 to 12.
As already stated, P.W.4 is the Excise Sub-Inspector, who
had detained the accused, conducted the search and seized the
jari bag, which the accused was carrying at the relevant time. The
independent witness has come to the witness box as P.W.1
whereas P.W.2 is one Assistant Sub-Inspector, who had
accompanied P.W.4 in the said raiding party and P.W.3 is the
Assistant Chemical Examiner Central Division, Cuttack
The packets containing contraband Ganja and ash of burnt
'kalli' were produced in Court during trial and marked as
Material Objects (M.O.I & M.O.II).
4. The Trial Court, having scrutinized the evidence on record,
has held the prosecution to have established the charge beyond
reasonable doubt that the accused was in exclusive possession of
13 kgs of ganja.
5. Mr.A.K. Budhia, learned counsel for the Appellant
(accused) at the outset submitted that the prosecution evidence is
highly deficient in establishing the nexus between the contents of
the bag said to have been seized from the bags during search of
the house of the accused and the contents of the bags produced
before the Magistrate wherefrom samples had been collected by
the Magistrate so as to conclusively hold that the contents of the
bags recovered from the house of the accused and seized being
examined has been found to be Ganja. He submitted that on this
ground alone, the judgment of conviction and order of sentence
cannot be sustained.
6. Mr. P.K. Mohanty, learned Additional Sanding Counsel for
the Respondent-State submitted all in favour of the finding
returned by the Trial Court. He submitted that the evidence of
P.W.4 coupled with the evidence of P.W.3 leave no room to
entertain any doubt in mind for a moment that the prosecution
has not established the nexus between the contents of the bags
with the contents of the bag produced before the learned
Magistrate and the samples taken therefrom to have been
examined.
7. Keeping in view the submissions made, I have perused the
impugned judgment of conviction passed by the Trial and Court
and have also extensively travelled through the evidence of all
the witnesses, i.e., P.Ws.1 to 4 and D.W.1 as well as the
documents admitted in evidence and marked Exts.1 to 12.
8. As per the prosecution case, P.W.4 is the principal witness,
who not only heading the party but also detained the accused,
searched him and seized the so-called contraband from his
possession. It is his evidence that having searched, he (P.W.4)
recovered the jari bag containing 13 kgs of suspected ganja from
the possession of the accused. He states to have opened the bag
and removed small quantity from the contents, after he got the
smell of ganja. It is stated that he then conducted some
preliminary tests and with his longstanding departmental
experience and training, ascertained the contents to be nothing
but ganja. The evidence of P.W.4 is also to the effect that the ganja
were then repacked in the said jari bag, which was sealed by his
monogram seal on the jari bag and paper slips with the signature
of the accused and witnesses were also affixed and all those were
then seized under seizure list (Ext.1/1). The seal used wag given
in zima of P.W.1 as per the evidence of P.W.4. P.W.4 has further
stated that the accused and the seized articles were produced
before the learned S.D.J.M. Athagarh with further prayer to
collect the samples and send the same for chemical examination.
This P.W.4 does not state that when he produced the sealed jari
bags, the seal was intact and it was produced as it was seized at
the spot. He also does not state to have called the independent
witness (P.W.1) to produce the brass seal taken by him on zima
before the learned S.D.J.M. for comparison and verification.
The order-sheet of the learned S.D.J.M., dated 01.03.2017
reveals that the Jari bag containing 13 kgs of ganja had been
produced before him. He then obtained samples in two separate
envelopes each containing 50 grams (A-1 and A-2 and sent A-1 to
the Assistant Chemical Examiner, Government of Orissa, Excise
Division-I Laboratory, Central Division Cuttack by issuing
necessary requisition. Entire order-sheet of the learned S.D.J.M.,
being carefully gone through, does not reveal that the Magistrate
had undertaken the exercise of verification as to if the seal said to
have been put on the jari bag by P.W.4 was intact and there was
no sing or symptom being in any way tampered nor the contents
therein to have not been meddled with. The order-sheet does not
reveal that the brass seal used in sealing the jari bag by P.W.1
being produced before the Court, the exercise of comparison that
it was that seal, which had actually been put at the time of seizure
to conclude that it was that seized bag, which had been produced
before him, had at all been undertaken.
The above exercise are not empty formalities but to ensure
that there is no tampering with the so-called contraband and
establish the nexus between the contents of the bag seized and
the samples examined.
For the aforesaid discussion and reasons, this Court raises
grave doubt over the prosecution case that the contents from the
bags recovered from the possession of the accused were nothing
but Ganja.
9. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 11th March, 2024 passed
by the learned Additional Sessions Judge-Cum-Special Judge
(N.D.P.S.), Athagarh in Special Case No.01 of 2017, are hereby set
aside.
Since the Appellant, namely, Santosh Behera, is in custody,
be he set at liberty forthwith, if his detention is not wanted in
connection with any other case.
(D. Dash),
Judge.
Basu
Location: HIGH COURT OF ORISSA : CUTTACK
