BHARAT BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present appeal has been preferred by the appellant assailing the judgment and order dtd. 7/9/1998 passed by the learned Sessions Judge-cum-Special Judge, Khurda, Bhubaneswar in T.R. Case No.1 of 1998. By the impugned judgment, the learned Trial Court found the appellant guilty of the offence punishable under Sec. 20(b) of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of two years and six months along with a fine of Rs.1,000.00, and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months.

(2.) Heard Mr. Devashis Panda, learned Counsel for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State.

(3.) The prosecution case, in brief, is that on 5/1/1998, P.W.3, the Sub-Inspector of Excise attached to E.I. and E.B., Bhubaneswar, while on patrol duty at Old Town, Bhubaneswar at about 2:30 P.M., received reliable information that the accused would be arriving in that area carrying contraband excisable articles. Acting upon such information, P.W.3 made necessary preparations and, in the meantime, requested two persons passing by to act as independent witnesses. While P.W.3 along with the witnesses were present at the spot, the accused was seen approaching carrying a bag. He was intercepted and detained by P.W.3, who disclosed his identity by showing his official identity card and informed the accused of his intention to conduct a search of his person as well as the bag in his possession. The accused was further apprised of his right to be searched in the presence of an Executive Magistrate or a Gazetted Officer. However, the accused consented to be searched by P.W.3 himself. Upon observing necessary formalities, the personal search of the accused was conducted, but no incriminating article was recovered from his possession. Thereafter, the bag in his possession, which was tied with a rope, was opened by P.W.3. On search, an L&T cement 'jari' bag containing a substance was found inside. Upon opening the said 'jari' bag, ganja was found. The contraband was weighed at the spot and was found to be 5 kilograms. Subsequently, the seized ganja was kept in the same 'jari' bag, the mouth of which was properly tied, and a paper slip bearing the signatures of the accused, the witnesses, and P.W.3 was affixed thereto. The contraband was seized in presence of the witnesses and a seizure list was prepared at the spot. A copy of the seizure list was handed over to the accused, who acknowledged receipt thereof. Thereafter, the accused was arrested and brought to the office of P.W.3 along with the seized articles and relevant documents. The seized property was duly deposited in the office Malkhana. P.W.3 submitted a detailed report of the search and seizure to the Deputy Commissioner of Excise, Central Division. Subsequently, the accused was forwarded to the Court along with the seized property and forwarding report. The seized samples were drawn by the learned S.D.J.M., Bhubaneswar and sent for chemical examination, which, upon analysis, was confirmed to be ganja.