BAYAMANI MANDINGA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Bayamani Mandinga faced trial in the Court of learned Sessions Judge -cum -Special Judge, Koraput at Jeypore in Criminal Trial No.154 of 2007 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act') for cultivating ganja plants and in possession of 31 kgs. of ganja and 149 numbers of cannabis plants without any authority or licence on 30.09.2007 at about 5.00 p.m. at village Baghamari under Laxmipur Police Station in the district of Koraput. The appellant was found guilty of the said charge and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/ - (rupees one lakh), in default, to undergo further rigorous imprisonment for one year.

(2.) The prosecution case, in short, is that on 30.09.2007 at about 3.00 p.m., P.W.6 Abhiram Behera, who was the Sub - Inspector of Excise at Laxmipur along with his staff, Excise Inspector, Koraput, Excise Superintendent, Koraput, Excise S.I., Nandapur, police staff of Koraput at Laxmipur and Executive Magistrate, Koraput, all proceeded to village Baghamari to detect excise offences. They reached at village Baghamari at about 5.00 p.m. when P.W.6 got reliable oral information about illegal cultivation of hemp plants by the appellant in his Bari adjoining to the backside of his residential house. They also proceeded to the house of the appellant and on reaching there, they found that the appellant was watering hemp plants inside his fenced Bari. P.W.6 called two witnesses namely, Krupadan Kondhpan (P.W.1) of village Sutiguda and Sala Hikoka (P.W.2) of village Baghamari and in their presence, he searched the Bari of the appellant and during search, he recovered 149 numbers of hemp plants with height ranging from 1' to 8' having flowers, fruits and tops. Those plants were uprooted and kept in the spot Bari. During the search of the Bari, P.W.6 also recovered two polythene gunny bags containing ganja and on weighment of the ganja, it was found to be 11 kgs. and 20 kgs. P.W.6 seized the hemp plants as well as polythene bags containing ganja at the spot in presence of the witnesses and the Executive Magistrate under seizure list Ext.1. He collected two samples of hemp plants, each sample containing two hemp plants in presence of the witnesses. He also collected two samples of ganja from each polythene bag, each sample containing 100 grams of ganja in presence of the witnesses. After the seizure, P.W.6 sealed the bulk ganja, bulk hemp plants, the sample ganja and sample hemp plants by paper seal affixing there over wax with impression of his personal brass seal. He obtained signatures of the witnesses on those sealed packets and also put his own signature. On 1.10.2007 P.W.6 produced all the seized articles along with sample packets before the Trial Court and also produced the appellant before him. As per the direction of the Special Judge, the J.M.F.C., Laxmipur sent the samples of hemp plant and ganja for chemical examination under Ext.3 and thereafter P.W.6 received the report of the chemical analyser which indicated that the subject sample marked as "Ex.A1" & "Ex.B1" were found to be ganja (cannabis) as defined under section 2 (iii) (b) of the N.D.P.S. Act and sample marked as "cl." was found to be hemp plant as defined under section 2(iv) of the N.D.P.S. Act. According to P.W.6, before making search of the Bari of the appellant, he made personal search of the appellant after obtaining his option of being searched in presence of a Magistrate but no incriminating materials were recovered from the possession of the appellant. After completion of investigation, P.W.6 submitted prosecution report against the appellant.

(3.) During course of trial, in order to prove its case, the prosecution examined six witnesses. P.W.1 Krupadan Kandhpan did not support the prosecution case, for which he was declared hostile. P.W. 2 Sole Hikoka also did not support the prosecution case, for which he was declared hostile. P.W.3 Bibekananda Sahu was the Revenue Officer - cum -Executive Magistrate, Koraput who is a witness to the seizure of hemp plants and ganja from the house premises of the appellant. P.W.4 Ganga Paikaray was A.S.I. of Excise, Narayanpatna who stated about the seizure of two bags of ganja as well as hemp plants from the Bari of the appellant. P.W.5 Subash Chandra Jena was the S.I. of Excise, Nandapur who accompanied the other Excise Officials to village Baghamari and stated about the search of the house of the appellant and seizure of ganja and hemp plants. P.W.6 Abhiram Behera was the S.I. of Excise at Laxmipur who not only conducted search and seizure of hemp plants and ganja but he is also the Investigating Officer. The prosecution exhibited four documents. Ext.1/1 is the seizure list, Ext.2/1 is the option of the accused, Ext.3 is the forwarding letter of the material objects and Ext.4 is the Chemical Examiner report. The prosecution also proved six material objects. M.O.I and M.O.II are the bulk ganja bags, M.O.III and IV are the sample covers, M.O.V is the bundle of ganja plants and M.O.VI is the sample bundle of plants.