MUKESH PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Jail Criminal Appeal has been registered on receipt of prisoner's petition through the Prison Welfare Officer, Circle Jail, Berhampur wherein the present Appellant has made a prayer to this Court to assess the judgment dated 10.2.2006 passed by the learned 2nd Additional Sessions Judge-cum-Special Judge, Berhampur in 2(a)C.C. Case No.2 of 2005(N)/T.R. No.9 of 2005 convicting the Appellant for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (in short, ' the N.D.P.S. Act') and sentenced him to undergo R.I. for 10 years and pay fine of Rs.1,00,000/-, in default, to undergo R.I. for 2 years.

(2.) The prosecution case is that on 1.4.2005 the SubInspector of Excise, Sadar, Chhatrapur, Ganjam with his staff was patrolling on N.H.-5. When the patrolling party members were near Sabulia level crossing of Village-Rambha they saw the Appellant going with one bicycle loaded with one jute bag and one plastic bag containing some substance therein. On suspicion he was detained and search was conducted and was found that Ganja was there in both the bags. In presence of witnesses the S.I. of Excise took the weight of the Ganja and it was found that Ganja weighing 34 Kg. was there in the jute bag and Ganja weighing 12 Kg. was packed in the plastic bag. The S.I. of Excise seized the same on the spot in presence of witnesses and sealed both the bags using paper seal. Wax seal was given using the personal brass seal of the Sub-Inspector of Excise. After sealing was over the personal seal was handed over to one of the witness, namely, Surendra Kumar Sahu. After recording of the statements of the witnesses on the spot he forwarded the Appellant to the Court of Sessions Judge-cum-Special Judge, Berhampur along with the seized articles. On the direction of the said Court the seized articles were produced before the S.D.J.M., Berhampur on the next day, sample of Ganja from each of the packets was drawn in presence of the learned S.D.J.M. and the samples so collected were packed and sealed by the said Court to be sent for chemical examination. On chemical examination, the samples tested "positive" for Ganja (cannabis). After submission of prosecution report cognizance was taken by the learned Special Judge. Thereafter, the case was transferred to the Court of 2nd Additional Sessions Judge-cum-Special Judge, Berhampur.

(3.) Mr. Ashok Das, Advocate, who has been engaged by the Court to defend Appellant in the appeal has argued that the learned Trial Court has mechanically accepted the testimony of the official witnesses and that, had there been proper appreciation of the evidence, the Appellant would have been acquitted on the ground of failure on the part of the prosecution to prove the case beyond all reasonable doubts. It is specifically pointed out that the prosecuting agency has failed to comply with the provisions contained in Section 50 of the N.D.P.S. Act and there is no satisfactory evidence on the proper custody of the seized articles as well as sample packets from the stage of the seizure of the alleged Ganja till the same was produced before the Court and there is absence of evidence as to in what manner the sample packets were sent to the chemical examiner.