PITABAS PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (In short, the ActT) and sentenced to undergo R.I for ten years and to pay a fine of rupees one lakh by learned Assistant Sessions Judge, Kamakshyanagar as per the Impugned judgment delivered in Sessions Trial No. 17-D/4 of 1989. That order of conviction and sentence is under challenge in this appeal.

(2.) According to the prosecution, on 19.10.1988 on receipt of information from the Excise Constable Akshya Kumar Mohapatra (P.W. 2) the S.I. of Excise, Kamakshyanagar namely Kasinath Biswal (P.W. 1) conducted a raid of the betel shop situated at the outskirt of village Khokasa under Kamakshyanagar P.S. accused was then in that shop. On search, 100 gms. of non-duty paid Ganja was recovered from a tinqibba and 5 gms. of contraband opium from a ZardaDibba. The same was seized in presence of the .excise staff and two Independent witnesses namely Hata Kishore Khuntia (P.W. 3) and Kunja Behari Gochhayat (P.W.4). Accused was arrested and produced before the Magistrate on 20.10.1988. The seized article, which was kept in a sealed packet, was sent for chemical analysis through Court on 27.1.1986 and on 31.12.1988 prosecution report was submitted for the offence under Section 18 o( the N.D.P.S. Act. The S.D.J.M., Kamakshyanagar committed the case to the Court of Sessions Judge, Dhenkanal in the absence of a Special Court constituted under Section 36 (1) of the Act by that date and learned Sessions Judge on 23.2.1989 transferred the case to the file of Assistant Sessions Judge. Kamakshyanagar for trial and disposal according to law.

(3.) Learned Assistant Sessions Judge. Kamakshyanagar framed the charge under Section 18 of the N.D.P.S. and took up the trial. The aforesaid witnesses were examined as P.Ws: 1 to 4 and the seizurelist (Ext. 1), Forwarding letter (Ext.3) and the opinion report of the Drugs Controller (Ext. 4) were relied on. The seized articles with containers were marked as M.Os. 1 to V. In course of the trial P.Ws. 3 and 4 did not support the prosecution case: They were confronted with their previous statements recorded by P.W. 1, but such statements were not proved and exhibited. The trial Court assessed the evidence on record and while rejecting the contention of the defence (I) that prosecution has not been able to prove that the shop from which the articles were seized belongs to the accused or that the articles were seized from his possession, (2) that, the seized article was opium. (3) that the procedure contemplated in the Act relating, to search and seizure were not complied with and above all, (4) that, there is no Independent corroboration to the version of P.Ws. 1 and 2 regarding search and recovery of the said article from the possession of the accused, convicted the appellant basing on the report that ganja and opium was seized and treating the evidence of P.Ws. 1 and 2 as sacrosanct and sentenced him in the aforesaid manner.