S K JAHUR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Appellant herein challenges the judgment dated 18.5.2009 passed by the learned Additional Sessions Judge-cum-Judge, Special Court, Boudh in SPL Case No. 4 of 2008 whereunder the Appellant has been found guilty of having committed the offence punishable under Section 20(b) of the N.D.P.S. Act and sentenced to undergo R.I. for fifteen years and to pay fine of Rs. 1.5 lakh, in default, to undergo R.I. for three years. Prosecution case, in brief, is that on 15.3.2008 while the S.I. of Excise along with his staff and other constituting a raiding party was proceeding towards Sagada to have raids on cultivators of Cannabis plants, he got a reliable information to the effect that 'Ganja' was stored in the dwelling house of the present Appellant. On such information, the raiding party proceeded to the Appellant's house, barricaded the house and conducted search of the house observing different formalities. On such search, huge quantity of substance suspected to be 'Ganja' kept in a number of bags was recovered. The S.I. of Excise conducted sensual test and in aid of his long experience got himself confirmed that the substance was 'Ganja'. Weight of the 'Ganja' kepi in all the bags was taken which came to 145 Kg. He drew sample from the contents of each of the bags. He sealed the bags with the Substance inside and also the sample packets and sealed them using one brass seal. He seized the 'Ganja' bags which were recovered from the Appellant's house along with the sample packets' observing formalities. The brass seal used for sealing of the bags and sample packets was handed over to the Executive Magistrate, who was also a member of the raiding party, to be kept in his custody. The Appellant was arrested. Since all these continued till late night the accused was forwarded to the Court on the next day along with the seized articles. The sample packets were sent to SDTRL, Bhubaneswar for chemical examination through the Court. The samples on being subjected to chemical test were found to be 'Ganja'.

(2.) On submission of prosecution report, learned Special Judge took cognizance of the offence under Sections 20(b)(ii)(C) of the Act, and proceeded to record evidence of the prosecution witnesses before charge. On 24.11.2008 charge was framed indicating commission of the offence under Sections 20(b) Of the Act. Witnesses examined before charge were called for and cross-examined after charge. Then two more witnesses were examined. On completion of evidence from the side of the prosecution the Appellant was examined under Section 313(1)(b) of Cr. PC. The Appellant adduced defence evidence. After hearing argument from both the sides and on an analysis of the evidences available on record, the learned Special Judge delivered the impugned judgment.

(3.) Out of the six prosecution witnesses, P.W.4 is the Sub-Inspector of Excise, P.W.3 is the Executive Magistrate, P.W.1 is the Revenue Inspector and P.W.6 is the A.S.I, of Excise. All of them were members of the raiding party. P.Ws.2 and 5 are independent witnesses who were invited by the S.I. of Excise to witness the search and seizure. These two witnesses have turned hostile. The sole defence witness has adduced evidence to the effect that the Appellant dwells in a house at Bausuni and he has no other dwelling house elsewhere.