BULU ALIAS AMULYA SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this Jail Criminal Appeal the appellant challenges the judgment and order dated 20-9-2008 passed by the learned Additional Sessions Judge-cum-Special Judge, Jaipur in G.R. Case No. 1241 of 2000 convicting the appellant under S. 21(c) of the N.D.RS. Act and sentencing him to under R.I. for twenty years and to pay a fine of Rs. 1,00,000/-, in default to suffer R.I. for six months more.

(2.) The prosecution case in a nutshell is that Mr. S. K. Mallik, S.I. of Police, Barchana Police Station (P.W. 9) while present in Byree Outpost on 24-12-2000 at about 11.30 a.m. received reliable information to the effect that the accused-appellant was dealing in brown sugar and was present at Gopapur, Chhatia to sell brown sugar to different customers. P.W. 9 entered the fact in Byree Outpost Station Diary vide Entry No. 409 dated 24-12-2000 and intimated the fact to LLC, Barchana Police Station, who is his immediate superior. He also issued a requisition to Tahasildar to depute one Executive Magistrate to remain present during search and seizure. At about 3.00 p.m. Sri. U. C. Patra, Additional Tahasildar, Darpan (P.W. 3) arrived at Chhatia along with Sri. Gunamani Nayak, A.S.I, of Police of Bayree Outpost, Constable, Sachidananda Bisoi and G. R., Arun Pradhan along with a section of Armed Force and they all proceeded to Gopapur and located the house of the appellant which was identified by witnesses, Ratnakar Sethy and Santosh Patra. The appellant was in his house and P.W. 9 explained to him the purpose of visit of the police party. P.W. 9, P.W. 3 and other police personnel thereafter gave their personal search before the appellant and thereafter P.W. 9 searched the bedroom of the appellant and recovered two packets, which had been kept on the floor adjacent to the cot. The said two packets contained brown sugar. P.W. 9 thereafter requisitioned the services of a goldsmith, namely, Laxmidhar alias Sujeet Kumar Sahoo, who arrived at the spot with his weighing balance and weights. Out of the two packets, one was yellow in colour and the other packet was brown in colour. The contents of the yellow packet was weighed by the goldsmith in presence of the witnesses which came to 650 gms. Out of the said 650 gms four samples of 5 gms each were drawn and they were packed in polythene covers. The balance brown sugar of 630 gms. was pakced in another polythene cover and was kept in a paper casket which was covered with long cloth, stitched and sealed in presence of the witnesses, Magistrate and the accused. Each of the four sample packets was kept inside a paper cover and was sealed in similar process. The contents of the brown packet was thereafter weighed by the goldsmith which came to 1240 gms. and out of the same, four samples of 5 gms. each were drawn and kept in four separate polythene covers. The sample packets and the balance brown sugar were each again separately packed in paper packets and sealed in presence of the witnesses and the accused. One small weighing balance and three stone weights belonging to the accused were available near the brown sugar packets. They were also taken to a polythene cover and thereafter put in a paper packet, which was duly sealed. P.W. 9 also took specimen impression of the seal on two pieces of white papers, which were signed by the witnesses and the accused. The brown sugar packets along with the samples were seized by P.W. 9 and a seizure list was prepared and copy of the seizure list was handed over to the accused after obtaining his signature and acknowledgment on the seizure list. The brass seal used for sealing the seized materials was left in zima of one Bansidhar Pradhan. The accused did not have any licence or authority to possess the brown sugar for which P.W. 9 arrested him on the same day. He also drew the plain paper EI.R. and submitted before the LLC, who registered the case. During investigation by the LLC of the Police Station, it was ascertained that co-accused, Radhu alias Radhashyam Sahu had sold the brown sugar in question to the present appellant. After completion of investigation, charge-sheet was submitted against the appellant and the co-accused-Radhashyam under Ss. 21, 22 and 29 of the N.D.P.S. Act. The plea of the accused persons was a denial of the occurrence and the prosecution allegations.

(3.) In order to establish the charges against the accused persons, the prosecution examined ten witnesses in all. P.W. 9 is the S.I. of police and the informant, who conducted the search and seizure along with other police personnel. P.Ws. 1 and 7 are seizure witnesses. P.W. 7 also took weighment of the seized brown sugar. P.W. 2, Baidhar Pradhan is the Zimadar in respect of the brass seal used by P.W. 9 for sealing the seized articles. P.W. 3 is the Executive Magistrate. P.W. 4 was a tenant of the accused-appellant. P.W. 6 was the Sarpanch of Chhatia Grama Panchayat. P.W. 6 is the then A.S.I, and a member of the raiding party. P.W. 8 is an independent witness. P.W. 10 was the LLC, Barchana Police Station and the Investigating Officer.