RAJENDRA TRIPATHY AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE two appellants in Criminal Appeal No. 195 of 1994 and the appellant in Criminal Appeal No. 309 of 1994 have been convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the 'N.D.P.S. Act') and sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs. 1,00,000, in default, to undergo further rigorous imprisonment for two years each. In 2 (a) CC Case No. 88 of 1992 (Trial No. 10/2 of 1993) by the Second Additional Sessions Judge, Cuttack. Since both the appeals arise out of one common judgment, the same were heard analogously and are being disposed of by this common judgment.

(2.) BRIEFLY stated, the prosecution case is as follows: On 6-8-1992, the S.I. of Excise, Sadar, Cuttack (PW 5) was on patrol duty. At about 2.15 p.m., he found that accused Debaprasad Barik (appellant in Criminal Appeal No. 309/94) was moving in suspicious manner near village Balikuda. The said accused person was detained on suspicion of violation of provisions of the Excise law and was sear­ched in presence of witnesses. From his right side pant pocket, one polythene packet was found which contained brown sugar. The S.I. (PW 5) took 10 milligrams out of the packet and Kept the seized pack­et in an envelope which was sealed and seizure-list (Ext, 1) was prepared and copy thereof was given to the accused. This re­lates to the first phase of the incident. On interrogation, the said accused Debaprasad Barik disclosed that he received the brown sugar from one Sitaram Tripathy (appellant No. 2 in Criminal Appeal No. 195/94) of village Balikuda. Accordingly, the S.I. (PW 5) proceeded to the house of Sitaram Tripathy along with accused Debaprasad Barik. Near the house of Sitaram Tripathy, they found his son Rajendra Tripathy (ap­pellant No. 1 in Criminal Appeal No. 195/94). Accused Debaprasad Barik indi­cated that the brown sugar had been sup­plied by aforesaid Rajendra Tripathy. The latter was chased and detained in front of his house where Sitaram Tripathy was also standing. It is alleged that after giving his identity, the S.I. (PW 5) gave the aforesaid two accused persons the option of being searched before a Magistrate or a Gazetted Officer, but both the accused persons had no objection to be searched by PW 5, who on search seized a polythene packet containing five grams of brown sugar from the pocket of accused Rajendra Tripathy and 11 grams of brown sugar contained in a polythene packet from the pocket of accused Sitaram Tripathy. After taking samples, the seized articles were sealed in separate envelopes and the seal of P W 5 was given. Thereafter the house of the aforesaid two accused persons was searched and a brass balance and 5 gram Batakara (measure) were seized from in­side a room. Accordingly, seizure- list was prepared under Ext. 5. The three accused persons were arrested immediately and produced in Court the next day. The seized articles were kept in the office of the Su­perintendent of Excise and were sub­sequently produced before the Magistrate on 10-8-1992 where after samples were sent to the Drug Testing Laboratory at Bhubaneswar. After it was found out that the seized articles were indeed brown sugar, prosecution report dated 19-1-1993 was submitted and the three accused per­sons were tried.

(3.) IN support of the prosecution, 6 witnesses have been examined. PW1 is the Assistant Sub-Inspector of Excise Depart­ment who had accompanied PW 5, the seizing authority. P W 2 is the owner of the house where the two appellants in Criminal Appeal No. 195/94 were staying as tenants at the relevant time P Ws 3 and 4 were the witnesses to seizure of the con­traband articles, P W 5 was the Sub-Inspec­tor of Excise who seized the contraband articles and subsequently investigated into the offence, PW 6 was the Clerk in the Office of the Superintendent of Excise who proved about the custody of the seized contraband articles. Three defence witnesses were ex­amined on behalf of the accused persons to disprove the factum of seizure and to indi­cate that the provisions of Section 50 of the NDPS Act have not been complied.