SANJAY KUMAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present criminal appeal has been preferred against the order dated 04.05.2016 passed by the Court of the learned Additional Sessions-cum-Special Judge, Angul in Special Case Number 20 of 2014 arising out of Handapa P.S Case Number 14/24.1.2014.

(2.) The prosecution story hinges on the fact that on 24.01.2014 the informant-Police Officer named Mahendra Dehury (P.W.8), the erstwhile S.I. of Police, Handapa P.S on receipt of some confidential information with respect to alleged transport of contraband ganja by an unknown person in a Honda Shine motorcycle bearing Registration Number OR-05-K-3718 which was heading from Patrapada towards Handapa. He entered the said fact in the Station Diary vide Entry Number 474 dated 24.01.2014 and commanded A.S.I. of Police, P.N. Sahu, Home Guard Laxman Sahu, Home Guard Kamadev Naik, Home Guard Duryodhan Dehury and Home Guard Krupasindhu Pradhan to verify the said information. Accordingly, they proceeded to the spot immediately on 24.1.2014. Around 9.00 A.M. while the police surveillance party were waiting near "Jharana Nala", they found one person coming on a motorcycle and proceeding towards Handapa and the registration number of the motorcycle bearing same registration number i.e. OR-05-K-3718 and 2 plastic bags were found loaded on the same. The above person was detained with the motorcycle near the aforesaid "Jharana Nala". On being asked, the accused gave his identity as Sanjay Kumar Behera son of Dasarathi Behera of village Laxmipriyapur and admitted to be carrying two bags weighing nearly 50 Kgs. On being asked he stated that on the request of some unknown person, he was carrying the aforesaid load of ganja so as to deliver the same at Handapa to a certain person. Then the S.I.-Sri Dehury telephonically informed the P.W.11, I.I.C, Handapa P.S. regarding detention of the said accused along with the suspected contraband. He then guarded the accused along with the contraband bags as well as the motorcycle and sent a requisition to the Sub-Divisional Magistrate, Athamalik for deputation of one Executive Magistrate to remain present at the search site. Then he arranged two independent witnesses, namely, Saheb Behera (P.W.1) and Madan Naik (P.W.4) after securing their willingness for the same, he then requested one Kalindi Sahu (P.W. 3) of Handapa Chhak to weigh the contents of the suspected bags and also arranged for materials for sealing of the same. Around 12.00 A.M. the Executive Magistrate one Prabodh Kumar Rout (P.W. 10) who was Addl. Tahasildar, Kishorenagar, arrived at the spot and in the presence of the Executive Magistrate, the official witnesses as well as the two independent witnesses, the loaded bags were unloaded from the motorcycle and on verification, it was found that the first bag contained 21 smaller polythene packets of suspected contraband goods and on measurement of the same, the total weight came to 20 Kgs. and 100gms. The second bag was found to contain 30 numbers of smaller polythene packets and on the measurement of the same, the weight came to be 28 Kgs. and 700 gms. Then the ganja bags along with the motorcycle were seized from the conscious and exclusive possession of the accused in the presence of the Executive Magistrate. The S.I., Shri Dehury drew 25 gms. of ganja in duplicate from the first bag which was marked as Exhibit-A and another 25 gms. of ganja in duplicate from the second bag and the bulk ganja bag was marked as Exhibit-B. The sample packets were marked as Exhibits-A/1, A/2, B/1 and B/2. The specimen seal impression of Sri Dehury was used in sealing the bulk ganja bag and sample packets of the entire process of search and sampling was done in the presence of the accused, the witnesses and the Executive Magistrate. A seizure list was prepared seizing the weighing scale and the device which were forwarded to the custody of the weighman Kalandi Sahu. The brass seal was handed over to the custody of the Executive Magistrate under zimanama. Then he drew up a plain paper FIR and presented the same to Handapa P.S. and handed over the sealed contraband articles, the accused and the motorcycle. The I.I.C, Handapa P.S. (P.W.11) then took up the investigation, visited the spot, examined the witnesses, prepared the spot map and produced the seized contraband articles, sample packets and the accused before the Special Judge, Angul who directed for drawal of sample by the S.D.J.M, Angul. Later on the sample packets were sealed and sent to the S.F.S.L, Rasulgarh on the next day. The relevant Station Diary entry, dispatch register and malkhana register were also seized. Subsequently, upon transfer of the erstwhile I.I.C, Handapa P.S., the charge of the investigation was handed over to one Smrutiprava Pradhan, (P.W.12), who is SI, Handapa PS, who caused seizure of the detailed report and intimation report in connection with the case. The chemical examination report was received with reference to the Handapa P.S. Case No.14/24.01.2014 which revealed that the contents of the said packets were the fruiting and flowering tops of ganja. On conclusion of the investigation, the said Smrutiprava Pradhan, S.I. submitted the charge sheet leading to the trial.

(3.) The trial commenced before the court of the learned Special Judge, Angul on 26.09.2014 and on 09.01.2015 charges were framed against the accused under Section 20(b)(ii)(C) of the NDPS Act. The accused in his statement under Section 313 of the Cr.P.C refuted the charges and claimed that he has been falsely implicated in the present case. In order to prove the charges, the prosecution relied on the evidence of 12 witnesses, out of whom P.W. 1-Saheb Behera and P.W. 4-Madan Naik were independent witnesses to the search and seizure operation. P.W.2-Rasananda Biswal is stated to be a witness to seizure. P.W. 3 is the weighman Kalandi Sahu. Thus, P.W.1 to P.W.4, are all independent witnesses and P.W.5 to P.W.12 are also independent witnesses. P.W. 5 is one police constable-Ashok Kumar Sahu, in whose presence, the detailed report and intimation report were seized by the Investigating Police Officer. P.W. 6 is P.N. Sahu who is a witness to the search and seizure. P.W. 7 is one Sashibhushan Dehury who is an A.S.I. of police and a witness to seizure of station diary, malkhana register etc. P.W.8 is the informant-Mahendra Dehury, who also led and conducted the raid. P.W.9 is one Sukant Kumar Dash who is a stenographer in the office of S.P., Angul who produced the intimation report and the detailed report before the Investigating Police Officer. P.W. 10 is the Executive Magistrate, P.K. Rout. P.W.11 is the erstwhile I.I.C., Ramesh Chandra Dash of Handapa P.S. who initially took charge of the investigation of the case. P.W.12-Smrutiprava Pradhan S.I. of police Handapa P.S, subsequently took over the investigation and filed the charge sheet in the instant case. Besides oral evidence, the prosecution has also relied on Exhibits-1 to 29 in support of its case as well as M.Os. I to VI.