BHAGIRATHI JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this appeal under Section 378 (2) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (for short 'Cr.P.C') the appellant (hereinafter referred to as the 'accused') has challenged the judgment dated 24.1.1991 and order dated 28.1.1991 passed by the Sessions Judge, Puri convicting him under Sections 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') and under Section 24 of the Arms Act and sentencing him to undergo R.I. for fifteen years and to pay a fine of Rs. 1,50,000.00, in default to undergo R.I. for a further period of two years on each of the first two counts and to undergo R.I. for two years under the third count. The substantive sentences were directed to run concurrently.

(2.) Prosecution case is follows : On 23-12-1990 the Excise Sub-Inspector, Puri (P.W. 6) receiving reliable information regarding illegal transportation of narcotic drugs from Cuttack to Puri by the accused, brought the same to the notice of the Superintendent of Excise, Puri and with his permission proceeded to Bhubaneswar in departmental jeep to detect the case, accompanied by the Deputy Superintendent of Excise, Puri (P.W. 4), A.S.I. of Excise, Puri (P.W. 1), an Excise Constable (P.W. 5) and two other Excise Constables. After reaching Bhubaneswar, P.Ws 4 and 6 had a meeting with the Sub-Inspector of Excise, Bhubaneswar and they chalked out a plan to detect the case. Accordingly, the Excise Sub-Inspector of Bhubaneswar with his staff proceeded to guard the Cuttack-Bhubaneswar National Highway and P.Ws. 4 and 6 along with their staff went to the bridge over river Daya, situated at the outskirts of Bhubaneswar on the Bhubaneswar-Puri Highway and waited there at the other end of the bridge. It is alleged that at about 3.30 p.m. the accused wearing a military-colour dress and having a gun around his shoulder reached there, riding a red-colour bullet motor-cycle, but did not stop at the other end of the bridge defying the signal given by P.W. 6. When he sped off, the raiding party chased him in the departmental jeep and overtook him near a narrow bridge near the railway level-crossing on the State Highway between Bira Govindapur and Samajajpur and obstructed the road by keeping the jeep across the bridge, as a result of which the accused could not cross the bridge on his motor-cycle, and finding no way to escape, he left the motor-cycle and threatened the raiding party with gun-shot by bringing out his gun (M.O.I) from his shoulder. However, P.W. 6 assisted by his staff could overpower the accused and snatched away the gun from him. After completion of formalities of search and in presence of two persons who reached there on cycles, P.W. 6 recovered one packet of opium (M.O. II) weighing 1 Kg. from the tool-box of the motor-cycle and one rexin handbag (M.O. VIII) in which there was a packet (M.O.IV) containing brown sugar weighing 2 grams, G.C. notes amounting to Rs. 1,109.00 in an envelope (M.O.V.), two star-badges (M.O.VI) meant for police officers and three live cartridges (M.O. VII) from the carrier box of the motor-cycle. The above articles along with the motor-cycle (M.O.IX) and the gun (M.O. I) were seized. Nothing could be recovered from the person of the accused. The accused could not produce any gun licence and permit or authority to possess the narcotic drugs. After seizure of the above articles, the accused was arrested at the spot and was taken to the Excise Officer at Puri and was detained there during the night. The following day, i.e. 24-12-1996, P.W. 6 submitted his report to the Superintendent of Excise, Puri regarding detection of the case, seizure of the contraband articles and arrest of the accused and forwarded the accused to Court in custody. Since 24-12-1990 was a Sunday, the S.D.J.M. remanded the accused to jail custody and directed P.W. 6 to keep the seized articles in the Excise Malkhana and to produce the same in Court on 5-1-1991 after expiry of the X-mas holidays. Accordingly, P.W. 6 kept the seized articles in the Excise Malkhana and produced the same in Court on 5-1-1991 with prayer to the S.D.J.M. to draw samples of M.Os. II and IV for the purpose of chemical examination. The S.D.J.M. after drawing samples from M.Os. II and IV for chemical examination sealed the same and the remaining quantities of the contraband articles with his own seal. The seized articles, M.Os. I to VIII, were kept in the Court Malkhana whereas the seized motor-cycle (M.O. IX) was directed to be kept in the Excise Malkhana. The chemical examination report (Ext. 10) confirmed that the samples were opium and brown sugar (diamorphine). After completion of investigation, P.W. 6 submitted the prosecution report under Sections 18, 21 of the N.D.P.S. Act and Section 27 of the Arms Act which was registered as 2(a) CC No. 496 of 1990 on the file of the S.D.J.M., Puri. After commitment of the case to the Court of Session, the accused stood his trial.

(3.) The accused pleaded not guilty to the charge and his plea is one of denial and false implication by P.W. 6 for non-payment of illegal gratification to him and other Excise staff (otherwise known as monthly quota) after his licence to deal in Ganja was cancelled, while allowing him to deal in Bhang only.