PANDABA NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) APPELLANT challenges his conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the N.D.P.S. Act').

(2.) APPELLANT was prosecuted for the offence under Section 15 of the N.D.P.S. Act on the allegation that on 6.2.1995 at about 8.30 P.M. the Sub Inspector of Excise, Belpahar (P.W. 4) while on patrolling duty at Belpahar Railway Station Bus stand area along with his staff he found the accused in possession of gunny bag (M.O. I). Because of the smell which was emitting from the article inside the gunny bag, P.W. 4 suspected that to be containing Narcotic substances and after intimating in writing about the intention to conduct search and whether appellant wanted his search in presence of a Gazetted Officer or Magistrate (Ext. 2) he got the consent in writing (Ext. 3) from the appellant for his search by P.W. 4. Thus, in presence of two independent witnesses of the locality (P.Ws. 1 and 2) and his Excise staff out of whom the A.S.I. of Excise has been examined as P.W. 3, P.W. 4, searched the gunny bag and found puppy straw. On weighment, he found a net weight 28 Kg. of puppy straw. He derived two sample packets of puppy straw each weighing 25 grams and while sending one sample (M.O. II) to the Court along with the accused and the seized puppy straw in M.O.I. P.W. 4 forwarded the other sample packet for chemical analysis. Since the report of the Chemical Examiner revealed the sample to be puppy straw containing murphin, prosecution report was submitted against the accused for the offence under Section 15 of the N.D.P.S. Act.

(3.) AT the stage of consideration of charge, accused pleaded not guilty and claimed for trial. He advanced the plea of complete denial. At the stage of examination of the accused under Section 313, Cr.P.C. while denying to the allegations emerging from the evidence of P.Ws. appellant explained that on the date of occurrence having come to one friends house he had come to the Bus stand area and while he was purchasing 'banana' from a thela he saw the Excise staff chasing somebody but they caught hold the appellant, made queries with him and obtained his signature to frame a case against him. Appellant also adduced defence evidence by examining one Mahendra Naik, a banana thela hawker and through his evidence appellant took the plea that appellant had come to the house of D.W, 1 as the youngest brother of his sister's husband to deliver an invitation card (Ext. A) and when appellant and the P.W. No. 1 had come to the banana thela of the D.W. No. 1 where D.W. 1 was to do the business, the D.W. No. 1 leaving the appellant at the thela went to purchase betels and during that time the Excise people came and took the appellant in a jeep. In other words, appellant has denied any nexus with M.O.I. and its possession.