P. GUPTESWAR RAO Vs. STATE OF ODISHA

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence passed by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No.310 of 1991 convicting the appellant for commission of offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the Act") and sentencing him to undergo R.I. for one year and to pay a fine of Rs.500/-, in default, to undergo R.I. for three months more.

(2.) Prosecution case placed before the trial court is that the appellant while travelling in a bus bearing registration No. ORO- 73465 from Balimela to Koraput, the S.I. of Excise, Sadar Charge, Koraput along with his Excise staff made a search of that bus at Koraput bus stand where he found a suitcase kept in the carrier of the bus just above the seat of the appellant. Suspecting transportation of 'Ganja', the S.I. of Excise when opened the suitcase found the same to be containing 'Ganja'. Being satisfied that the aforesaid suitcase belonging to the appellant, he made seizure of the suitcase in presence of the appellant and the witnesses in accordance with the provisions of the NDPS Act and Rules, took weighment of the 'Ganja' which was of 5 Kgs. in weight. From the smell and texture of the articles P.W.4 satisfied that it was 'Ganja', he sealed the suitcase and thereafter arrested the appellant and produced him before the S.D.J.M., Koraput. In presence of the S.D.J.M. he drew sample of 50 grams of 'Ganja', sealed the packet and transmitted the sealed sample packet to the chemical examiner, Government of Odisha. On receipt of chemical examination report, Ext.3 and on completion of investigation he submitted prosecution report against the appellant. The appellant faced the trial being charged under Section 20(b) of the Act. He pleaded not guilty to the charge and claimed to be tried. To substantiate the charge against the appellant, the prosecution examined altogether 4 witnesses, 2 of whom are the independent witnesses to the seizure and P.W.3 is the A.S.I. of Excise and P.W.4 is the S.I. of Excise who had made search and seizure and conducted investigation. As it appears, the trial court placing reliance on the evidence of the official witnesses found the appellant guilty of the charge under Section 20(b) of the Act and returned the judgment of conviction and order of sentence, as stated earlier.

(3.) Learned counsel for the appellant assails the impugned judgment of conviction and order of sentence in this appeal to be unsustainable there being no iota of evidence that the suitcase, M.O.I belonged to the appellant and it was recovered from his exclusive and conscious possession. Besides, it is submitted that the prosecution having failed to establish the safe custody of the seized suitcase till the sample was drawn, there is no reliable and unimpeachable evidence that what was sent to the chemical examiner was the representative sample of the articles kept in the suit case. To support his stand, he places reliance on a decision of the this Court in the case of Bhaskar Kumar Karan alias Bhaskar Chandra Karana v. State, (2001) 20 OCR 113 wherein this Court has held that since the prosecution has not established beyond all reasonable doubt by cogent and reliable evidence that the appellant was in exclusive and conscious possession of the contraband articles, the conviction is set-aside. He further submits that there being non-compliance of the mandatory provisions inasmuch as the article seized was not immediately produced before the O.I.C. of nearest Police Station and remained in custody of the Excise official, the impugned judgment of conviction and order of sentence cannot be sustained. In this regard, he places reliance of a decision of this Court in the case of Sk. Faiyaz v. State of Orissa, (2010) 46 OCR 855, wherein it has been held that since the prosecution has not proved the case that from the place of seizure till the articles were produced before the chemical examiner are not in proper custody, the conviction recorded cannot be sustained.