DASA MOHAPATRA AND ANR. Vs. THE STATE

JUDGEMENT

(1.) THE two Petitioners were convicted under Sections 8 and 9 of the Orissa Opium Smoking Act, 1947, and sentenced to undergo one month 's rigorous imprisonment and to pay a fine of Rs. 50 (fifty) each by a First Class Magistrate of Puri.

(2.) THE facts found by the two Court are that on 31 -12 -1957 at about 4 p.m. an Excise Party raided the Baraj of the Petitioner Bhagawan and there they saw the two Petitioners and one Natabar Parida smoking opium. They also seized opium smoking apparatus consisting of a hooka (M.O. I), a connecting pipe (M.O. II), a Ginna (M.O. III), some tablets of opium kept in a tin (M.O. IV) and a Chilam (M.O. V). The accused persons were sent up for trial in due course. Natabar pleaded guilty and was convicted and sentenced on that plea. The two Petitioners however pleaded not guilty. Four witnesses were examined on the side of the prosecution to prove the circumstances under which they were seen in the Baraj of Bhagawan and the recovery of the incriminating articles. They were also convicted under Section 8 of the Opium Smoking Act, but on appeal the learned Sessions Judge set aside the conviction and sentence passed for that offence.

(3.) THE main question of law urged by Mr. Mohanty was with regard to the non -examination of the Excise Sub -Inspector Sri P.K. Das who led the raiding party and who, after due investigation, submitted charge -sheet against the Petitioners. It has been held by this Court in some cases that the non -examination of the Investigation Officer may cause prejudice to the accused in his trial, in certain cases, and if such prejudice is established it may be good ground for setting aside the conviction and sentence. But I find that in this case no such point was taken up either before the trial court or before the lower appellate court. The Investigating Officer was summoned to give evidence on 15 -2 -1958, but on that day he asked for an adjournment saying that he was busy investigating some other case. The Magistrate however refused to give any adjournment and closet the prosecution case. The order sheet does not show that the Pleader for the Petitioners insisted on the examination of the Investigating Officer. Nor did they, at any subsequent stage, of the trial, press for his examination. Before the lower appellate court also they did not make a grievance of his non -examination. In these circumstances I cannot say that any prejudice was caused to the Petitioners by the omission to examine the Investigating Officer.