ASWINI KUMAR SARKAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellants have been convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') and each has been sentenced to undergo rigorous imprisonment for five years. Shortly stated, the prosecution case is that on 18 -5 -1992 the Sub -Inspector of Excise, Mathili being on leave, the Sub -Inspector of Excise of Baipariguda (PW. 6) was in -charge of Mathili in addition to his own duties. On that day the Excise Constable of Mathili (PW. 4) had come to Baipariguda on official duty and after finishing his work while he was returning to his headquarters at Mathili in a motor -cycle he found the Ambassador Car bearing registration No. ONS 3794 coming from Malkangiri side near village Sargiguda at about 2 p.m. On suspicion, he detained the car by giving signal to the appellant No.2 Binod Pradhan who was driving the vehicle. At that time the appellant No.1 Aswini Kumar Sarkar was sitting in the front seat by the side of the driver. After the car was stopped, it was found that the rear seat of the car was not there and some materials had been kept in the space behind the front seat which was emitting the smell of Ganja. The said Excise Constable (P.W. 4) called Raghunath Bisoi (PW 1) and Bhagaban Behera (P.W. 2) who were there near about busy in collecting sal seeds and after their arrival they all sat inside the car and at the direction of the Excise Constable the car was driven to Boipariguda. After crossing Boipariguda Post Office when the car reached the check -gate the Excise Constable found the Sub -Inspector of Excise (P.W. 6) standing by the side of the road and at his sight he asked the driver to stop the car and accordingly, it was done. After getting down from the car he informed the entire incident to the Sub -Inspector of Excise and further told him that the materials kept inside the car was emitting the smell of Ganja (cannabis). In the meantime, both the appellants having got down from the car, the Sub -Inspector of Excise suspecting the materials to be contraband articles, he told the appellants that they had the right to get the articles searched in presence of either a Magistrate or a Gazetted Officer and asked them if they wanted the car to be taken to either of them. Since the appellants declined the car to be taken before any of them, the Sub Inspector of Excise, after giving his personal search, searched the car and recovered there from 49 packets, the contents of which were smelling Ganja. Since the appellants failed to produce any authority enabling them to possess such huge quantity of Ganja, the same were seized as per the seizure list Ext. 1/1 in presence of P.Ws. 1 and 2 who had been brought by the Excise Constable in tile car and also the Police Constable (P.W. 3) who was there at the time of search and recovery, being on patrol duty and copies thereof were served on the appellants The car used for transportation of the seized Ganja alias also seized. On weighment, the weight of the packets came to 150 kms. Thereafter, all the materials inside the packets were mixed up together at one place and from that heap a sample of 50 grams was taken and kept separately in a cardboard packet (M.O. 1) After drawal of sample the remaining Ganja was again kept in these 49 packets. Parer slips containing the signatures of the seizure witnesses and the Sub -Inspector of Excise were prepared and after such slips were pasted on the seized 49 packets containing Ganja and the sample packet (M.O 1), they were sealed. On the next day i.e. on 19 -5 -1992, the appellants were produced in the court of the S.D.J.M., Jeypore with a forwarding letter and all the seized articles including the sample packet (M.O. 1) were also produced. In course of inquiry, the sample packet (M.O. 1) was allegedly sent for chemical examination of the materials kept inside it and after completion of inquiry persecution report having been submitted, the appellants faced trial in the court of the Sessions Judge, Koraput, Jeypore. 3. The defence was one of denial. The specific plea of the appellants was that on 16 -51992 while they were going in the car, they were detained and were asked to spare the car on hire. They agreed but when they demanded the hire charges, they were taken to Baipariguda where they were kept without food. Thereafter, they were told that the vehicle would be released on their paying some money. Their request to release them and their car went unheeded. Ultimately, their signature were taken on one blank form and 2/3 blank paper and on 19 -5 -1992 they were produced in court. No witness was, however, examined in support of the defence plea. 4. The prosecution examined as many as six witnesses in support of its case of when P.Ws. 1 to 4 and 6 have already been introduced and the remaining witness, i.e. (P.W. 5) is the S.D.J.M., Jeypore. On a consideration of the evidence at the witnesses and the report of the Chemical Examiner, Ext. 6 disclosing the material sent for chemical examination in the cardboard packet to be Ganja (cannabis), the learned Sessions Judge believed the prosecution case, while rejecting the defence plea, and convicted and sentenced the appellants, as stated earlier. 5. The learned counsel for the appellants has raised two contentions. His first contention is that on the facts and in the circumstances of the case, the report of the Chemical Examiner (Ext. 6) is not relatable to the sample allegedly taken from the so called seized articles and as such, the conviction of the appellants is not sustainable. The second contention is that since the prosecution report submitted by the Sub -Inspector of Excise is a complainant and as the case is a warrant case, the learned Sessions Judge should have followed the procedure meant for trial of warrant cases and the same having not been done, the appellants were seriously prejudiced and as such, the conviction is not sustainable. 6. As regards the first contention, there cannot be any controversy that unless it is proved beyond reasonable doubt by the prosecution that the report of the Chemical Examiner (Ext. 6) is relatable to the articles seized from the appellants on 18 -5 -1992, the conviction cannot be sustained. According to the prosecution, out of the articles seized from the appellants a sample of 50 grams was taken and kept in a cardboard packet (M.O. 1). Even if the seizure of articles from the appellants as per Ext. 1/1 is believed, then also it has to be found out whether there is sufficient evidence indicating that M.O. 1 had been sent for chemical examination. The Sub -Inspector of Excise allegedly seizing the articles (P.W. 6) has, of course, deposed as under in paragraph 8 of his deposition 'The S.D.J.M. sent the sample which I produced before him i.e. M. O. 1 for chemical examination. I produced M. O. 1 before him on 19th. Neither myself nor in my presence any sample was drawn on 19 -5 -1992, but the question is how far such evidence can be acted upon as reliable. He has also deposed in the same para that he had filed the petition dated 19 -51992 before the learned S.D.J.M., Jeypore marked Ext. A and the contents of that petition indicate that he had prayed the learned S.D.J.M., Jeypore to draw 50 grams of sample of cannabis in court on the same day. Further, the relevant portion of the forwarding letter, Ext. 8 sent by the learned S.D.J.M. to the Chemical Examiner, Government of Orissa, R.T.P., Bhubaneswar which has some bearing on the point, may be extracted as under; "(ii) List of exhibits sent for examination: Description of exhibits 1 How when and by whom found 2 Source of exhibits 3 Remarks 4 0.050 grams. Of cannabis the flowering and fruiting tops of Indian Hump plant drawn out o0f the total 150 Kgs. of marked exhibits œA  The cannabis 49 paper packets which were carried in a car by the Accd. Persons found and seized by R.C. Sethi SI of Excise Baipariguda District Koraput as the road Baipariguda near post office. The sample drawn out of the cannabis seized from the possession of the Accd. Persons on 18 -5 -1992 at 2.30 p.m. The Accd. Were produced in custody in the court on 19 -5 -92 in the court custody. (iii) Nature of Examination: - The Chemical Examiner is requested to examine the exhibit marked "A" and to opinion whether exhibit are the flowering and fruiting tops if cannabis plant according to the definition of the N.D.P.s. Act or not. Memo No 1029/Judl. Dated 19 -5 -1992. Forwarded to the Chemical Examiner to Govt. of Orissa, R.P.T. BBSR. The sample weighing 150 Kgs. drawn out of the total seized cannabis from the paper packets in presence of court and kept in a cardboard packet duly covered by white cloth stitched to sealed in my real specimen of which is given below. Specimen Seal. Sd/ 19 -5 -1992 Sub -Divisional Judicial Magistrate, Jeypore, Dist. Koraput. Signature and designation of forwarding authority. The figure "150 kgs." appearing in the forwarding memo may be a mistake because in Column 1. It has been stated that 0.050 grams sample of cannabis was being sent, but this is not very important. What is important is that 50 grams of cannabis was drawn as sample in court room and after the same was kept inside a cardboard packet it was duly sealed with the seal of the court and the same was sent for chemical examination. So the assertion of the Excise Sub Inspector (P.W. 6) that M.O. 1 had been sent for chemical examination cannot be acted upon as reliable. Thus, there can be no manner of doubt that what was sent for chemical examination was not M.O. l containing the sample drawn by the Sub -Inspector of Excise but 50 grams of cannabis drawn as sample by the learned S.D.J.M. in court. This finding is all the more strengthened by the petition dated 19 -5 -1992 admittedly filed by the Sub -Inspector of Excise in court praying the learned S.D.J.M. to take sample of 50 grams of cannabis in court. If the sample drawn in court was really sent for chemical examination as stated in the forwarding letter, then it is expected that prosecution should have led evidence to show that such sample had been taken from the articles allegedly seized from the appellants. It is noted with concern that no such evidence was led by the prosecution. The learned S.D.J.M. who took the sample should have been the best witness to depose on that score but no attempt was made to examine him. On the other hand, the S.D.J.M. who joined a couple of months after the alleged seizure in August, 1992 was examined to say that the seized cannabis produced in court on 19 -5 -1992 as per the Malchallan, Ext. 4/1 was missing from the Malkhana for which an original case was started against the Clerk in -charge or the Malkhana. Under these circumstances, the conclusion is irresistible that the report of the Chemical Examiner, Ext. 6 is not relatable either to M.O. l or to any article allegedly seized from the appellants. The learned Sessions Judge failed to take note of the aforesaid evidence and circumstances for which her ultimate conclusion finding the appellants guilty of the charges has become vulnerable. Therefore, the conviction of the appellants is not sustainable. 7. In view of the aforesaid finding, it is not necessary to render any finding on the second contention. 8. In the result, the appeal is allowed the order of conviction and sentence passed against the appellants is hereby set aside. Since the appellants are in jail custody, they be set at liberty forthwith, if their detention is not required in connection with any other case. Appeal allowed.