STATE OF ORISSA Vs. SAYAD FAJAR ALLI

JUDGEMENT

(1.) THE State has called in question the order of acquittal passed by the Learned Sessions Judge, Kalahandi, Nuapada in G.R. Case 223 of 1994 acquitting the Respondent of the charge for offence under Section 20(b)(i) of Narcotic Drugs & Psychotropic Substance Act. Prosecution case is that on 01.10.1994 at 5.15 P.M. Circle Inspector of Police attached to Nuapada Police Station went to Nuapada Bus Stand having received reliable information as regards the transportation of ganja being accompanied by his staff. In the bus stand he apprehended the Respondent & recovered a blue colour cotton bag with the suspicion that it was carrying ganja. It is stated that at the first sight of the police, the Respondent attempted to flee away from the spot & through local people as weir as driver of Police Department, it was foiled when he was apprehended with the bag. The bag was searched in presence of Executive Magistrate & then it has been found to be containing ganja. On weighment nine packets of ganja were found to have been kept in the bag which weighed 5 kg. 500 gms. Samples were drawn at the spot. FIR being lodged by the Circle Inspector of Police, Deputy Superintendent of Police took charge of the investigation & finally charge sheet having been submitted, the Respondent faced the trial for the above offence.

(2.) THE Respondent during trial took a plea of complete denial & levelling of false accusations. Prosecution in order to bring home the charges against the Respondent in the trial examined six witnesses, whereas the defence examined none. The Police constable who had gone with the Circle Inspector of police to the place has been examined as P.W. 1. P.W. 2 is another police constable, a member in the party. The Executive Magistrate has been examined as P.W. 3, P.W. 4 & P.W. 5 are the witnesses to seizure. The I.O. of this case has examined the P.W. 5. The prosecution besides leading the oral evidence from the lips of above witnesses has also proved the seizure list Ext. 1 weighment chart Ext. 2 & the report of the chemical examination Ext. 3.

(3.) LEARNED Counsel for the State submits that the evidence on record is overwhelming on the point that there has been recovery of ganja of 5 kg. 500 gms. from the bag of the Respondent which he was carrying at the relevant point of time of detention. So in that view of the matter the finding of the Trial Court that the recovered ganja has no nexus with the Respondent & has not been proved to have been recovered from his possession is not tenable. It is further submitted that the Court below ought to have held that the ganja was seized from exclusive possession of the Respondent. It is his further submission that the Trial Court erred in law by holding the non -examination of Circle Inspector of Police as fatal to the prosecution & that ought not to have been taken as the ground to hold against the search, recovery & seizure of ganja from the exclusive possession of the Respondent when there are other witnesses who have proved the factum of seizure of the ganja from the exclusive possession of Respondent to the hilt. Therefore, he contends that here is a case where the order of acquittal has to be interfered with to prevent miscarriage of justice. Learned Counsel for the Respondent on the contrary supports of the finding of the Trial Court. According to him the view taken by the Trial Court that the star witness of the prosecution who was there in the raiding party having not been examined, the entire case of the prosecution has been rightly held to have not been established with regard to be detention, search, recovery & seizure. He further submits that evidence of P.W. 1, 2 & 3 are not sufficient to stand as the substitute of the evidence of the Circle Inspector of Police. According to him, the facts & circumstances of the case & evidence available, non examination of Circle Inspector of Police, the leader of the leading party without any short of explanation is fatal to the case of the prosecution. It is next contended by him that the Trial Court's finding that the possession of ganja has not been established to be resting solely with the Respondent is based on proper appreciation of evidence & is unassailable.