JIBAN SARKAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) APPELLANT has been convicted Under Section 20(b)(i) of the N.D.P.S. Act, 1985 for the alleged possession of 4 kg. 500 grams of Ganja without any valid licence or permit and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5,000/ - (five thousand) in default to further sufffer rigorous imprisonment for six months as per the judgment and conviction order dated July 17th 1998 of learned Additional Sessions Judge, Jeypore, in T.R. Case No. 27 of 1997.

(2.) PROSECUTION case, in brief, is that on 11.5.1997 on receipt of reliable information about the appellant indulging in the business of illegal possession and sale of Ganja P.W.No. 6, i.e., the Officer -in - charge of Dabugam Police -station proceeded to the occurrence village to conduct a search of the residential premises of the appellant. On his requisition, the S.D.O., Umerkote, who was also the Executive Magistrate (P.W.4) also accompanied to the occurrence village and in presence of the witnesses i.e. P.Ws. 1, 2 and 4. P.W. 6 conducted search in the house of the appellant and recovered and seized the aforesaid quantity of Ganja from the possession of the appellant. The appellant failed to produce any licence or permit for retaining such quantity of Ganja. On the basis of the aforesaid facts, charge for the offence Under Section 20(b)(i) of the N.D.P.S. Act was framed and the appellant was called upon to face the trial. In course of the trial, prosecution examined altogether six witnesses. Besides the above witnesses P.W.3 is the witness who brought the weighrrient scale for weighment of the seized articles and P.W. 5 is the successor in investigation to P.W.6. Ext. I is the seizure list and Ext. 7 is the spot map showing location/situation of raided house besides the house of the neighbours N.O.I is the bag containing ganja which was allegedly recovered and seized from the house of the appellant.

(3.) LEARNED counsels appearing for the appellant argue that on the face of P. Ws. 1 and 2 not supporting the prosecution regarding search recovery and seizure of M. O. I, from the house of the appellant and in view of the glaring contradiction in the evidence of P.Ws.4 and 6 in that respect, learned Additional Sessions Judge should have discarded the prosecution case and should have acquitted the appellant. It may be noted that learned Additional Sessions Judge has not assigned any cogent reason for discarding the evidence of P.Ws. 1 and 2 when they stated that they had not witnessed the factum of search, recovery and seizure. Of course, on perusal of their evidence, this Court finds that those witnesses were not reliable on that account because of their own conduct which is apparent on the face of the record i.e., from their depositions that they had the tendency to favour the accused and as a result supported him at the cost of the truth. This aspect should have been properly viewed and opined by the trial Court. Thus the evidence of P.Ws.l and 2, docs not help the appellant nor it has the effect of demolishing the charge framed against the appellant.