UDAYANATH SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellants (father and son) have challenged the impugned judgment dated 20.8.1997 passed by Sri D.K.Sahu, Sessions Judge -cum -Special Judge, Phulbani in S.T.No. 121 of 1996, convicting them Under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1989 (for short 'the Act') and sentencing each of them to undergo rigorous imprisonment for five years and to pay of fine of Rs. 5,000/ - in default, to undergo rigorous imprisonment for a further period of three months.

(2.) BRIEFLY stated, prosecution case runs as follows : On 5.11.1996 at 2.00 p.m. the officer -in -charge, Balliguda Police Station (P.W.4) received reliable information that Ganja had been kept in a black tin box in the sweet -meat shop/stall belonging to appellant No -1 Udayanath Swain situated by the side of the road at Gandhi Chhack in Balliguda town. The said information was entered in the Station Diary vide S.D.E. No. 97 dated 5.11.1996 (Ext.4) and after intimating his superior officials; Circle Inspector and Superintendent of Police over phone, P.W.4 proceeded to the spot accompanied by the Tahasildar -cum -Executive Magistrate, Balliguda (P. W. 1) and other police officials. Appellant No. 1 with his son (appellant No. 2) were present in the Sweet -meat Shop at the time of arrival of the raiding party. After serving notice on them in owriting to search the said shop, P.W.4 searched it and recovered one black tin box (M.O.I.) which had been kept below a table under lock. The lock of the box was broken open and it was found that the same comprised of two compartments and on the upper compartment, shirts, pants along with napkins and below these things there was a cloth bag containing Ganja had been kept and in the lower compartment, a polythene packet containing Ganja had been kept. By dint of his experience of fifteen years and from the smell and appearance of the contents of the cloth bag and the polythene packet, P.W.4 could know it to be Ganja, On weighment, it was found that the cloth bag contain 8 kgs. 500 gms. of Ganja and the polythene packet contain 4 kgs. 200 gms. of Ganja. After drawing up samples of 300 grams from each of them, the cloth bag and the polythene packet with the balance quantity of Ganja and the two sample packets were sealed using the brass seal of P.W.I and were seized in presence of local witnesses. P.W.4 drew a plain paper F.I.R. at the spot and took up investigation and on his return to the Police Station, registered the case. During investigation, it transpired that four other accused persons implicated in this case, had brought the Ganja from Assam and sold the same to the appellants. The appellants and the other four accused persons were arrested and produced in Court in custody and one of the two sample packets was sent for examination and as per the chemical examiner's report (Ext.8), the sample packet was found to contain Cannabis (Ganja). After completion of investigation, P.W.4 submitted charge -sheet Under Section 20(b)(i) of the Act against the six accused persons who stood their trial. The trial Court found the appellants guilty and convicted them and acquitted four accused persons observing that prosecution failed to bring home the charge against them.

(3.) SHRI D. Nayak, learned counsel for the appellants and learned Addl. Standing counsel, were heard at length. Sri Nayak contended that the impugned judgment of conviction is unsustainable in law and is liable to be set aside since the prosecution has failed to establish beyond all reasonable doubt that the appellants were in exclusive and conscious possession of the contraband article. The learned Addl. Standing Counsel supported the impugned judgment.