PANCHU ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant assails the order of conviction and sentence passed against him by the learned 1st Additional Sessions Judge, Berhampur in Sessions Case No. 27 of 1993 (GDC) wherein he has been convicted and sentenced under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh) and, in default, to suffer S.I. for six months and under section 20(b)(1) to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to suffer S.I. for one month.

(2.) The case against the appellant is that the S.I. of Excise, Aska (PW-3) on 14-11-1992 receiving information that the appellant was selling Ganja and Opium in his shop at Motabadi proceeded to Motabadi along with other Excise Staff, namely, Shri J. Mahakud, the A.S.I. of Excise, Shri Sukadev Pradhan, a Constable of Excise (PW-1) and some other Excise Staff by a trekker. They arrived near the betel shop of the appellant situated at the outskirt of village Motabadi at about 5.00 p.m. and found the accused present in his shop. The S.I. of Excise asked the appellant to remain there and called two villagers, namely, Amulya Pradhan and Surath Swain, the PW-2 to the spot to witness the search and in their presence and in presence of the appellant the Excise Staff gave their personal search and after searching the witnesses the Betal shop of the appellant was searched wherefrom Opium kept in a plastic packet covered with a paper and some Ganja kept in a polythene paper were recovered. The PW-3 weighed the seized Opium and Ganja by using departmental weighing scale and found that the Opium weighed 175 gms. and the Ganja weighed 400 grams. From his long experience in the Department, and basing on the smell and taste of the seized articles he found that the articles were Opium and Ganja. As the appellant could not produce any authority to possess the said Opium and Ganja he seized the same and prepared a seizure list. Ext. 1, in presence of witnesses who put their signatures thereon. The appellant declined to sign the seizure list. The S.I. thereafter put the seized articles in a plastic handbag and tied the same with string over which after putting wax he put the fascimal impression of his personal seal. The sealed packet was again covered with a paper seal containing the signatures of PW-3 and other witnesses. The said packet was again sealed affixing- the personal seal of the S.I. The appellant was informed about the grounds of arrest and was arrested. But shortly thereafter on the signal of the appellant 50 to 60 co-villagers of the appellant attacked the Excise Staff and rescued the appellant forcibly. The S.I. of Excise made an endorsement to that effect on the seizure list. Ext. 1 and thereafter recording the statements of the witnesses went to Kalipadar Out post to lodge information, but there he was informed to go to Buguda Police Station as the village Motabadi situates within the territorial jurisdiction of that police station. So on the next day i.e. on 15-11- 1992 he lodged an information, Ext. 12 at Buguda Police Station. As 15-11-1992 was a Sunday he produced the seized property and the seizure list etc. before the SDJM on 16-11-1992. He also moved the learned SDJM to collect and send samples of the seized articles for chemical examination. Accordingly, the samples were drawn and were sealed with wax seal of learned SDJM, Bhanjanagar and were sent for chemical examination under the forwarding letter, Ext. 6 of the learned SDJM to the S.D.C.R.L., Bhubaneswar. On receiving the Chemical Examiners reports, Exts. 10 and 11 which revealed that the samples sent for chemical examination were Opium and Ganja respectively, the PW-3 submitted prosecution report under section 18 and section 20(b)(l) of the Act against the appellant.

(3.) The appellant was charged for the offence under section 18 of the Act for possessing Opium and under section 20(b)(1) of the Act for possessing Ganja to which he pleaded not guilty and claimed be tried. The case of the appellant was a complete denial of the allegations levelled against him.