BHIM NAHAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Conviction for unauthorized possession of opium in terms of Section 9 of the Opium Act, 1878 (in short the Act) and consequential sentence of three months imprisonment awarded by the learned Judicial Magistrate First Class (Transport), Berhampur (in shor the 'JMFC'), upheld by learned Sessions Judge, Ganjam, Berhampur form subject matter of challenge in this revision application.

(2.) Accusation leading to trial of petitioner are as follows :- On 11-11-1985 at about 12 noon, officials of Excise Department, State of Orissa found the petitioner carrying two bags containing about 8 kgs. of opium poppy capsule powder. After investigation, prosecution report under Section 20-G of the Act was submitted. Petitioner faced trial for unauthorized possession of opium.

(3.) Three witnesses were examined to further prosecution version. PW 1 was the A.S.I. of Excise who had effected seizure, and tested seized article to come to a prima facie view that it was opium. PW 2 was Excise Constable who had witnesses seizure, and PW 3 was an Inspector of Excise who had also tested seized article to find out whether it was opium. No material discrepancy in evidence of these witnesses was noticed by the learned J.M.F.C. He found the petitioner guilty and directed conviction and awarded sentence as aforesaid. Before the learned Sessions Judge, main plank of challenge by accused was that no scientific test was conducted to find out whether powder alleged to have been seized was opium or not. It was also urged that no independent witness was examined and, therefore, prosecution version was not acceptable. Learned Sessions Judge held that officials who tested seized article were experienced officers with vast experience and their version that seized article was opium, cannot be faulted. So far as non-examination of independent witness is concerned, it was observed that merely because independent witnesses were not examined, credibility of prosecution evidence was not affected, as it is not a statutory requirement that independent witnesses are to be examined. In the absence of any allegation of false implication or motivated prosecution, mere non-examination of any independent witness would not vitiate the order.