HRUSH @ HURUSH BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Appellant in this appeal has challenged the order passed by the 2nd Additional Sessions Judge, puri, in S.T. No. 27/12 of 1993 convicting him under Sec. 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, the Act) and sentencing him to undergo rigorous imprisonment for ten years and also to pay a fine of rupees one lakh, in default, to undergo rigorous imprisonment for one more year. It may be stated here that The Appellant is now aged about 72 years and has already spent more than ten years, and four months in jail custody.

(2.) Briefly stated, the prosecution case is that P.W. Sec. 3 and 4, who were respectively the Sub -Inspector of Excise and Constable of Excise, were on patrolling duty on 19.6.1992 at the Balugaon Railway Station. On arrival of Palasa -Purin train on platform No. 3 at about 8 A.M., P.W. 3 got information that the accused -appellant was coming with a bag -load of opium poppy dust. Immediately thereafter, P.W. 3 found the accused coming with a gunny bag on his head. He detained the accused and called two witnesses, i.e., P.Ws. 1 and 2, to that place and asked the accused as to whether he intended to be searched by him at the spot or in presence of a Gazetted Officer. P.W. 3 also served a written notice (Ext. 3) on the accused showing his intention and offer wherein the accused put his signature as well as the L.T.I. When the accused expressed his desire to be searched by P.W. 3 at the spot, the latter after giving his personal search to the witnesses in presence of the accused, searched the accused and brought the gunny -bag from the accused from which it was found that the same contained opium poppy capsules. On weighment, the opium poppy capsule was found to be 15 kgs. P.W. 3 the took out 100 gms. of opium 'poppy capsules from the gunny bag and prepared a sample packet and seized the opium poppy capsules in the gunny bag in presence of the witnesses as per the seizure list Ext, 1/1 in which the accused put his signature and the L.T.I. The witnesses also put their signatures on the same. The gunny bag containing the recovered opium poppy capsules (M.O.I) was sealed with paper seal. P.W. 3 also sealed the sample quantity kept in a polythene bag by paper wrapper (Ext. 2/1). The witnesses put their signatures on the seizure list as well as on the paper seals on the gunny bag as well as sample packet.

(3.) P.W. 3, after examining the witnesses, arrested the accused and on the same day produced him along with the seized contraband article and the seizure list in the court of the J.M.F.C, Banpur, with a requisition for forwarding the sample contraband article for chemical examination. As per the direction of the court, P.W. 4 was entrusted to carry Ext. 2/1 to the State Drug Testing Laboratory, Bhubaneswar. Ext. 5 is the command certificate issued by P.W. 3 to P.W. 4 in that regard. Ext.6 is the copy of the forwarding report of the Magistrate. On 20.6.1992, P.W. 3 submitted a report to the Inspector of Excise, Bhubaneswar, regarding the incident of search, seizure, etc. Ext. 8 is the report of the Chemical Examiner of State Drug Testing Laboratory, which confirmed that the sample was opium poppy capsules. On completion of investigation, P.W. 3 submitted the prosecution report on the basis of which cognizance was taken and the accused was put on trial.