GOURAHARI MOHANTY Vs. STATE

JUDGEMENT

(1.) PETITIONER was convicted under Section 14 of the Dangerous Drugs Act, 1930, (hereinafter called the 'Act') and sentenced to undergo R.I. for three months by the Sub -Divisional Judicial Magistrate, Nowrangapur. Against the order of conviction and sentence he preferred an appeal before the Sessions Judge, Koraput, Jeypore and the same having been dismissed the petitioner has come up in revision against the aforesaid order of conviction and sentence.

(2.) THE prosecution case may be briefly stated as follows : Petitioner is a petty shop -keeper. On 10th September 1975 at about 6 P.M. on the authority of a search warrant issued by tile Sub -Divisional Officer, Nowrangapur P.W. 3. an Inspector, under Regulation 2 of 1968, along with P.W. 7, an Executive Magistrate, and P.W. 6 searched the house of the petitioner. During search they recovered some pledged articles and 23 Modaks from a self hanging on a wall. P.W. 7, the Executive Magistrate, thereafter sent for the Excise Sub -Inspector, P.W. 2 who seized the Modaks (M.O.I.) under Ext. 4. Subsequently another 10 packets of Modaks (M.O. II) were recovered from the wall almirah of the petitioner. This was also seized by P.W. 2 under Ext. 5. At about 1.30 A.M. in the night the wooden cabin of the petitioner used as a betel shop was searched and 150 Gms. of Modaks were found in a tin diba (M.O. III) which was also seized under Ext. 7. On 13.9.1975 at about 4.15 P.M. a search was made by P.W. 2 of the wooden cabin of the petitioner and he recovered Exts. 1 and 2 which are letters written by one Krishna Chandra Rath, co -accused wherein it was indicated that this Krishna Chandra Rath, had sold the Modaks to the petitioner. On 7.1.1976, the samples from M.Os. I, II and II, were sent for chemical examination as per forwarding report, Ext. 8. The report (Ext. 9) of the Chemical Examiner was received on 29.3.1976 and thereafter the prosecution report was lodged before the learned Magistrate under Sections 14 and 21 of the Act on 13.9.1976.

(3.) IN this case M.Os. I and II were recovered during the search made by P.W. 3 along with P.Ws. 6 and 7 and the same were kept with P.W. 7, the Executive Magistrate, and were subsequently hander over to P.W. 2, the Excise Sub -Inspector. Subsequently M.O. III was recovered from the wooden cabin by P.W. 2 on 13.9.1975 and then the seizure list of M.Os. I, II and III were prepared vide Exts. 4, 5 and 7. From the evidence it is disclosed that M.Os. I and II were sealed and the seal was kept with a local businessman, P.W. 5. But the evidence is not clear whether M.O. III was sealed or not. P.W. 2 in his evidence has stated that the samples M.Os I and II were sent to the Director of Forensic Science Laboratory, Calcutta for chemical examination on 7.1.1976. But he does not say before whom the samples were taken. On the other hand he stated that he brought hack the seal from Somnath Subudhi (P.W. 5) and got the M.Os. sealed and again handed over the seal to P.W. 5. Thus it appears that P.W. 2 on his own accord broke the seal and took the samples and has not taken the samples in presence of any witness.