MAYADHAR SWAIN AND Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellants have challenged the judgment dated 19 1 1999 passed by Shri N. N. Praharaj, Additional Sessions Judge cum Special Judge, Jajpur in G. R. Case No. 625 of 1998 convicting them under section 20(b) of the Narcotic Drugs and Psychetropie Substances Act (hereinafter referred to as the 'Aco') and sentencing each of them to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs. 1,00,000.00 (one lakh), in default to undergo rigorous imprisonment for a further period of one year.

(2.) PROSECUTION case briefly stated is as follows. The appellants (hereinafter referred to as 'the accused persons') are brothers and residents of village Sapanpur under Barchana Police Station in the district of Jajpur. The first informant (p. w. 8) is a resident of village Nelia under the same police station which is situated near village Sapanpur. It is alleged that in the night of 11 6 1998 (at 12.40 a. m. of 12 6 1998) p. w. 8 accom panied by his, friends p ws. 1, 2, 3, 4. and 6 had been to the village tank to sleep on the fridge since fit was a hoe summer night. At that time they found two persons one of them carrying a gunny bag in his hand, proceeding on the ridge towards village Sapanpu:r and since it was dark these two persons were loudly asked to disclose their identity, but they did not respond. Hence p, w, 8 and his friends suspected those two persons and rushed towards them. They detained them and could find both the accused persons who were brothers being residents of village Sapanpur and were acquainted with p, w. 8. and others. Being questioned, accused Mayadhar disclosed that he was carrying, Ganja in the gunny bag to his house for the purpose of business. P. w. 8 and his friends took the accused persons to the village school with the gunny bag which was opened and found that Ganja had been kept in four polythene bags Both the accused persons were detained there in a room and the Gramarakhi of village (p. w. 7) was asked to guard them during the night. In the morning at 6. 30 a.m. p. w. 8 lodged written report (Ext. 1)before the I. I. C. of the Police Station (p. w. 13) who registered the case and directed an S. I, of the said police station (p. w. 12) to take up investigation. P, w. 12 proceeded to village Nelia with his staff and after arrival of the Addl. Tahsildar cum Executive Magistrate (p. w. 11), seized the four polythene bags, two bags containing 5 Kgs of Ganja each, the third bag containing 45 Kgs of Ganja and the fourth bag containing 9 Kgs of Ganja, in total 23 Kgs 500 grams of Ganja. The accused persons exercised their option to be searched in presence of the Executive Magistrate, P. w. 12 drew samples of 50 grams from each of the four p'olythehe packets and sealed the four polythene packets as also the four, sample packets by using wax and a brass seal belonging to p. w. 13 who arrived at the spot at 10 a. m. After the seizure, the brass seal (M. O. I) was kept in the Zima of p. w. 10. Then both the accused persons were taken to the police station with the seized articles. The accused persons were forwarded to com ton 13 6 1998 and the samples were sent for chemical examination on 14 6 1998 as the S. D. J. M. was on leave on 13 6 1998. The chemical examiner's report (Ext. 15) confirmed that the samples were Ganja (cannabis). After completion of investigation p. w. 12 submitted charge sheet under section 20(b) of the Act against both tbe accused persons. The trial court framed charge under section 20(b) of the Act against both the accused persons who stood their trial. The defence plea is one of denial and false implication of the accused persons by the villagers of Nelia due to rivalry.

(3.) IN order to bring home the charge, prosecution has examined thirteen witnesses (p. ws.) in all. P. w. 8 is the informant, p. w. 13 is the I. I. C. of the Police Station who registered the case and p. w. 12 is the S. I. of the same police station who investigated into the case on the direction of p. w. 13. P. w. 11 is the Executive Magistrate. P. w. 10 is a resident of village Nelia who was present at the time of seizure and who took Zima of the brass seal (M. O. I). P. ws. 1, 2, 4 and 6 who were allegedly present with p. w. 8 at the time of alleged detection of the accused persons on the ridge have turned hostile and have not supported the prosecution case. P. w. 3 has stated to have slept on the ridge of the tank and to have heard a hulla in the night and to have found the villagers surrounding the accused persons and taking them to the village school. P. w. 7 is the Gramarakhi of the village who guarded the accused persons in the village school. P. w. 5 is a co villager of p. w 8 who has turned hostile and has not supported the prosecution case. P. w. 9 is a Witness to the seizure. The learned Special Judge placed reliance on the statements of p. ws. 3, 7, 8, 9, 10 and on the statements of the three official witnesses P. ws. 11, 12 and 13, and came to the conclusion that the accused persons were in exclusive and conscious possession of contraband Ganja and accordingly finding them guilty convicted them. He overruled the contentions of the defence counsel regarding non compliance of the mandatory provisions of the Act.