KABIRAJ BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant assails the judgment of conviction and order of sentence dated 24.01.1992 passed by the learned Sessions Judge, Ganjam, Berhampur convicting him under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") and sentencing him to undergo R.I. for 4 years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for a further period of six months.

(2.) Prosecution case as revealed from the record, may be stated succinctly as under :-

(3.) In assailing the impugned judgment of conviction and order of sentence, it is argued by the learned counsel for the appellant that so far as allegation of recovery of gunny bag containing 'Ganja' from the person of the appellant is concerned, the prosecution has signally failed to establish that what was kept in the gunny bag was nothing but 'Ganja'. It is also argued that P.Ws.2 and 3's evidence does not indicate that the alleged seized articles were properly sealed and kept in safe custody till produced in the Court and immediately after the alleged seizure the seized articles were not produced before the nearest Police Station and the seized articles were not re-sealed by the O.I.C. of the concerned Police Station in token of safe custody. It is submitted that the prosecution should have ruled out the possibility of tampering with the seized articles by leading cogent evidence to the effect that the articles were properly sealed at the spot and brass seal was kept in the custody of the independent witnesses. In absence of such evidence, it would not be safe to infer that what was examined in the Laboratory was actually recovered from the possession of the appellant. The learned counsel or the appellant also contends that the prosecution has failed to establish due compliance of the provisions under Sections 42, 52, 55 and 57 of the Act by the Investigating Officer. Lastly, it is submitted that P.W.3 himself having conducted search, effected seizure and arrested the appellant and when admittedly he had kept the seized articles in his Malkhana where he is the custodian of the said Malkhana, should not have proceeded with the investigation in order to ensure fair play and impartiality.