SANTOSH PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellants assail the judgment dated 22.12.2007 passed by learned Addl. Sessions Judge -cum - Special Judge,Bargarh, in C.T. Case No.166/2006 convicting them for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act" for brevity) and sentencing each of them to undergo R.I. for ten years and to pay a find of Rs.1,00,000/ - each in default to undergo R.I. for a further period of one year.

(2.) THE prosecution case as revealed from the record may be stated succinctly as follows: - On December 18, 2008 at 4.00 P.M. a secret message was received by Sub -Inspector of Excise, District Mobile, Bargarh Shri Jyotirmay Patel (P.W.1) that ganja was being transported in a silver colour Indica Car bearing Regn. No.0R -07 -E -4411 which was coming towards Bhatli road, Bargarh Town. The information was reduced by P.W.1 into writing. He sent a copy thereof to his immediate superior authority, viz. to the Inspector of Excise Bargarh as per Ext.18 and thereafter proceeded towards the spot where the car was expected to come. On reaching the spot, the raiding party found a Indica car bearing the aforesaid registration number on the verge of moving on the Highway but the vehicle could not move, possibly having developed some ignition trouble. It was found that four persons were sitting in the vehicle on the verge of moving and it was being driven by the 5th man who disclosed his identity as A -1, Santosh Patra. In presence of witnesses, Sub -Inspector of Excise -Shri Jyotirmaya Patel (P.W.1) disclosed his identity and intention of search and gave an option to the accused persons as per Ext.1 as to whether they wanted to be searched in presence of a Magistrate or in presence of a gazetted officer. The accused persons, it is alleged, opted for search in presence of a gazetted Officer. On the requisition of P.W.1, the Sub -Divisional Police Officer, Bargarh, Shri Prasanta Kumar Bhoi (P.W.3), who is a gazetted Officer arrived at the spot. On personal search of the accused persons no incriminating was found on their person. W hen the car was searched, a brown colour air bag, a royal colour attach box, a red brown colour air bag, a black colour air bag and one sky colour allwyn attach were found in the dickey of the Indica car. The bags were filled with ganja wrapped in polythenes. Weighing scale were brought and the polythene packets taken out from each container were weighed separately. It was found each bag contained 8 kgs., 9.2 kgs, 10.8 kgs, 8.4 kgs. and 7.6 kgs. Ganja respectively. Thereafter, P.W.1 collocated samples of 25 grams of ganja from each container in two separate packets. The sample packets and remaining ganja as found in each bags were sealed separately at the spot as required by law, and thereafter all necessary steps were taken under the Act and rules. P.W.1 prepared the seizure list, Ext.3, at the spot in presence of the witnesses and copies of the same were supplied to the accused persons and their endorsement obtained in Ext.3. At the spot, P.W.1 registered a case vide District Mobile Excise Case No.45/2006 -2007 dated 18.12.2006 against the accused persons under Section 20 of the Act. The accused persons were interrogated. The driver of the vehicles could not produce his driving license as well as documents of the vehicle. The case was accordingly seized as per seizure list Ext.3. Immediately thereafter, the seized containers, the sample packets, seized vehicle and the accused persons were handed over to the Officer -In -Charge, Bargarh Police Station, who resealed the seized articles. P.W.1 kept his brass seal in custody of witness, namely Tikeswar Sahu(P.W.4), the samples were analyzed by the Chemical Examiner, who filed a report vide Ext.13, with the finding that the samples were that of ganja, cannabis as defined under Section 2(iii) (b) of the Act. On being satisfied about commission of offence under section 20 of the act by the five accused persons they being unable to explain their physical possession, P.W.1 prosecuted them for alleged commission of offence. After framing of charge, the accused persons pleaded not guilty and, accordingly, they faced trial

(3.) TO substantiate its case, the prosecution has examined five witnesses. P.W.1 -Jyoritmaya Patel is the Sub - Inspector, District Mobile, Bargarh, who happens to be the informant and the Investigating Officer of the case, P.W.2 -Krushna Chandra Sahu is the Excise Constable, who was a member of the raiding party, P.W.3 -Prasanta Kumar Bhoi is the gazetted officer of the rank of Deputy Superintendent of Police in whose presence search and seizure were made, P.W.4 -Tikeswar Sahu and P.W.5 -Naba Kishore Pattnaik are the so called independent witnesses to the search and seizure. They have not supported the case of the prosecution at the trial and resiled from their earlier statement made before the Investigating Officer. Besides examining witnesses the prosecution has proved and exhibited eighteen documents and also produced material objects marked as M.Os.I to X at the trial.