ASHOK KUMAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) In these four appeals, the appellants have been convicted for the offence under Section 20(b)(ii)(C) of the N.D.P.S. Act as per the judgment passed by the learned 2nd Addl. Sessions Judge-cum-Special Judge, Berhampur in G.R.Case No. 3/04(N). They have been sentenced to undergo rigorous imprisonment for 10 years each and to pay fine of Rs. 1,00,000/-, in default, each to undergo rigorous imprisonment for three years.

(2.) It is found from the records that, on 18.09.2004, at about 10 P.M. the complainant, Nilakantha Prasad Patra, OC, Digapahandi Police Station along with A.S.I. of Police-Gobinda Gouda, Havildar-Ramanath Bisoi, Constables-Mahendra Kumar Baisakhi, Raj Kishore Tripathy, Pratap Panda, Krushna Chandra Tripathy left the police station in the jeep being driven by Assistant Driver-Baini Panda after making station diary entry for night patrol. When they were returning from patrolling duty, near village Bajupalli, they noticed that a three wheeler diesel delivery van, bearing Regd. No. OR-07-J-5509 with some load covered by a tarpauline was proceeding ahead of them. While their jeep reached closure to the delivery van, the occupants sitting on the Dala signalled the driver of the said van for which the same was stopped. Thereafter, the occupants, driver of the van and another occupants sitting in the cabin of the van got down from there. As the van created suspicion, the complainant and his staff having got down from the jeep, surrounded the occupants. But, one of them fled away, whereas four others were caught red-handed. On verification of the open dala of the van covered with tarpauline, they found 13 gunny bags emitting smelling of ganja. Being asked, the driver of the vehicle disclosed his name as Ashok Kumar Sahu and the occupants disclosed their names as Narendra Das, Balaram Khetri and Malik Sekh. It was found that they were bringing ganja from one Surendra Mishra of village-Janimba. As the complainant was confirmed that all the five persons were transporting contraband ganja, he offered them in writing whether they want to be searched in presence of a Gazetted Police Officer or Executive Magistrate, they expressed to be searched in presence of an Executive Magistrate. Hence, the complainant called the witnesses-Hindola Khirod, Chandra Reddy and Abhimanyu Reddy of village Gokarnpur, Haju Elangulu Reddy of village Ladigam and Sala Krishna of village-Bajapali and they arrived at the spot. The complainant and his staff guarded the vehicle and apprehended the accused persons and the Executive Magistrate, Digapahandi was requisitioned through Constables-P.K. Reddy to come and remain present in the spot during search of the van and its contents. In the meantime, the ASI was directed to arrange a person for weighment of the gunny bags containing ganja and that information was sent to the CI of Police, Chikiti regarding detention of the case through Constable-Mahendra Kumar Baisakhi. After the weighman brought to the spot with his weighing instruments and weights by A.S.I. and after arrival of Executive Magistrate, the complainant explained the grounds of search to the apprehended accused persons in presence of the witnesses, weighman and the Executive Magistrate. The Executive Magistrate having tested the grounds of the search directed the complainant to search the van, its contents and the apprehended occupants. Hence, the complainant, his staff and the witnesses gave their personal search to the apprehended accused persons but no incriminating material was found from them. Then, the complainant conducted personal search of the apprehended persons and found no incriminating material. On search of the detained vehicle, the complainant found 13 gunny bags packed with cannabis plants with fruiting and flowering tops, leaves commonly known as ganja. Hence, the gunny bags containing ganja were brought out from vehicle, all the bags were opened and examined by the complainant and the witnesses by smell. As such the recovered 13 ganja bags were serially marked as Ext. 'A' to 'M' and the weighman weighed each of the gunny bags containing ganja in presence of the witnesses and the Executive Magistrate whose weights without gunny bags was found to be 260 kgs. 350 grams. Accordingly, the seized bulk ganja bag was taken to the Police Station and the same was kept in P.S. Malkhana in safe custody. The seized properties were produced before the learned S.D.J.M., Berhampur. The sample packets were sent to the R.F.S.L., Berhampur for chemical examination, as per the direction of the learned Magistrate on 20.09.2004. After completion of investigation, charge sheet was submitted against the accused persons for the offence under Section 20(b)(ii)(C) of the N.D.P.S.Act.

(3.) The accused persons pleaded not guilty of the charge and submitted that they have been falsely implicated in the case.