TRINATH BARIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal is directed against the order of conviction and sentence dated 27th July, 1991 passed by the learned Sessions Judge, Cuttack in Sessions Trial No. 80 of 1991.

(2.) The facts of the case in brief are as follows : On 29.9.1990 while the Inspector of Excise (P.W.4) along with other Excise staff ware performing patrol duty he received reliable information that this appellant and another were selling Ganja and Bhang in their hutment near Jagatpur square. So immediately he proceeded to the spot at about 11.00 A.M. Seeing the Excise staff the accused persons closed the door of their hutment from inside. Being asked to open the door, though initially they were reluctant to open it, later opened the same. When they opened the door, the Excise staff gave their personal search in presence of the witnesses and the accused person and the witnesses also gave their personal search and thereafter the Inspector searched the hutment and recovered a polythene packet containing 200 grams of opium wrapped in a cloth and another packet kept in a cotton bag containing 250 grams of Ganja and Dhabal containing 2 K.Gs. of Bhang. He also recovered an empty Jarda Daba containing Rs. 10.30 paise alleged to be the sale proceeds of narcotic substance. All the articles were seized in presence of the accused persons and witnesses and seizure list (Ext. 1) was prepared. The accused and the seized articles were forwarded to the Court. Later, in presence of the Magistrate samples were drawn from the seized contraband articles and were sent to the Chemical Analyst with the forwarding letter of the J.M.F.C., Salipur. The Chemical Analyst's report was received and P.R. was submitted against the accused persons. On the above allegations the accused persons stood charged for the offences under Sections 18 and 20(b) of the N.D.P.S. Act to which they pleaded not guilty and claimed to be tried. In course of hearing, prosecution examined four witnesses. Out of the four witnesses, P.W. 1 is the Excise Constable who was performing patrol duty along with the Inspector of Excise. P.W. 2 one Bijay Barik is a witness to the search, but he has denied to have seen the search and seizure. P.W. 3 is another independent witness who has also not supported the prosecution case and P.W. 4 is the Inspector of Excise. In course of hearing, the seizure list, forwarding letter of the learned Magistrate, Chemical Analyst's report and prosecution report were also exhibited. The seized articles such as M.O. I wooden Dhabal, M.O. II Jarda tin, M.O. III Ganja and M.O. IV opium were also marked as material objects having been identified by P.W. 1 and P.W. 4. The learned Sessions Judge, however, after hearing the parties and considering the evidence available on record, while acquitting the other accused, namely, Abhimanyu Sethi, convicted the present appellant for the offence under Sections 18 and 20(b) of the N.D.P.S'. Act and sentenced him under Section 18 to undergo R.I. for ten years and to pay fine of rupees one lakh and in default to undergo R.I. for three years and did not pass any separate sentence for the offence under Section 20(b) of the N.D.P.S. Act. Being aggrieved by the aforesaid order of conviction and sentence, the appellant has preferred this appeal contending that the evidence on record does not conclusively establish that the appellant was in conscious possession of the alleged contraband articles. It is also contended that there is no evidence to show that the house in question from which the contraband articles were seized belonged to the accused. It is further submitted that since from the prosecution evidence it appears that the articles seized were not sealed at the spot in presence of the witnesses, manipulation thereof at a subsequent stage cannot be ruled out and under the above circumstances the learned Sessions Judge should have acquitted the accused. The learned Addl. Standing Counsel on the other hand argued in support of the impugned order.

(3.) It is contended that the finding of the learned Sessions Judge that the hutment belonged to the appellant and he was in possession of the contraband articles seized therefrom is not based on evidence on record. In this context, it is noticed that P.W. 1 who is a constable in the Excise Department has denied his knowledge about the ownership of the hutment. He has deposed that he could not say as to who was the owner of the hutment. The Inspector of Excise who has been examined as P.W. 4 has stated that the accused persons were selling Ganja and Bhang in their hutment which suggests that it belonged to both the accused. At the time of the alleged search and seizure this appellant and one Abhimanyu Sethi were present in the hutment. P.W. 1 has categorically deposed that this appellant and the other accused were present in the hutment during search. P.W. 4 has also deposed that the said hutment stood on a Government land. Two parsons viz., the appellant and the other co-accused, were found in that hutment. P.R. was also against both of them. But suddenly in course of trial the prosecution came with a case that the hutment belonged to this appellant. The P.W. 1 has denied any knowledge about the ownership of the hutment. There is no documentary evidence to show that the appellant was the owner in possession of the hutment on the date of the seizure. From the seizure list (Ext. 1) it appears that the articles were seized from the hutment where presumably a Government Bhang shop was being run. In absence of reliable evidence to establish that the appellant was the owner in occupation of the hut wherefrom the contraband articles were seized, the presence of the appellant and the other accused therein which is described as a Government Bhang shop cannot be sufficient to conclude that the appellant was in conscious or exclusive possession of the articles found therein. The appellant's case is that one Binoy Kumar Sethi was the licensee and one Trinath Sahu was his salesman. The prosecution tried to dissociate the other accused by deposing that the hutment belonged to the appellant though the P.W. 4 has also deposed that the accused persons were selling Ganja and Bhang in their hutment, which means that the; hutment where Ganja and Bhang were being sold belonged to both of them. Though in the seizure list (Ext. 1) it has been indicated that the hutment was presumably a Government Bhang shop, prosecution never tried to ascertain as to who was the licensee and whether the articles seized were the articles of the licensee or any other person. In the above circumstance, even if it is accepted that the appellant was present in that hutment at the time of seizure it cannot be held that he was in exclusive and conscious possession of those articles. Hence, the finding arrived at by the learned Sessions Judge that the contraband articles were seized from the hutment which was in occupation of the appellant cannot be sustained. Since the prosecution has failed to establish by adducing clear and cogent evidence that the appellant alone was the owner of the hutment and the contraband articles found therein were in his exclusive and conscious possession, the appellant cannot be fastened with any criminal liability.