STATE OF ORISSA Vs. RAJENDRA TRIPATHY

JUDGEMENT

(1.) The respondents faced trial for alleged commission of offences punishable under Sections 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) for alleged illegal possession of heroin. The trial court found the respondents guilty and sentenced each to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- each and in default to undergo rigorous imprisonment for two years. By the impugned judgment the High Court set aside the conviction and consequential sentence holding that the accusations have not been established.

(2.) The prosecution version in a nutshell is as follows:

(3.) During interrogation of accused Deba, he disclosed the names of other accused Sitaram Tripathy of Balikuda to have supplied heroin to him. So P.W.5 immediately proceeded with accused Deba towards the village Balikuda in search of accused Sitaram Tripathy along with his staff. They reached near the rented house of accused Rajendra Tripathy who is the son of accused Sitaram Tripathy on the road close to the house. At the sight of the Excise staff, accused Rajendra started running towards his house, but he was chased and was apprehended in front of his house where the other accused Sitaram was also standing. The witnesses who had attested the search, seizure for accused Deba also came there. P.W.5 again disclosed his identity and intention to both accused Rajendra and Sitaram that they are suspected to be possessing contraband articles and asked them whether they wanted to be searched before a Gazetted Officer or a Magistrate or they had no objection if their personal search is taken by P.W.5 himself. Both accused Rajendra and Sitaram did not choose to go to the Magistrate or Gazetted Officer and consented for their personal search by P.W.5. Thereafter P.W.5 in presence of the witnesses, after observing all formalities of search, took the personal search of both accused Sitaram and Rajendra. During search one jari packet containing some powder was recovered from the right side pant pocket of accused Rajendra which he was wearing. On weighment it came to 5 grams. P.W.5 marked the said jari packet with identification mark as B. Thereafter during personal search of accused Sitaram similarly one jari packet containing some powder was recovered from his right side pant pocket and after weighment it was found to be 11 grams. The said packets was marked with the identification marks as C. P.W. 5 conducted similar tests which was conducted earlier in case of accused Deba, by taking 10 ml. from each packets and after tests he was confirmed that the contents of the jari packets i.e. powder was heroin. Both the jari packets were seized in presence of the witnesses and seizure list was prepared and the packets were seized by means of brass and paper seal. The house of the accused Sitaram was also searched and only one Balance SCALE was recovered and no contraband articles were found in the house. The Balance SCALE was also seized and thereafter both the accused persons Sitaram and Rajendra were arrested and forwarded to Court on 7.8.1992 along with other accused Deba. On that day a prayer was made to the Court for sending the seized articles for chemical analysis. As the Court was hard pressed for time and holidays intervened, the Court directed P.W.5 to preserve the seized articles in safe custody and he (P.W.5) as per the direction of his superior officer kept the same in safe custody in his office and thereafter by the order of the Court, it was sent for chemical analysis and it was subsequently confirmed that the contents of the jari packets were heroin. The accused persons were prosecuted for having committed an offence punishable under Section 21 of the Act for unlawful possession of heroin.