SAHADEV THAKUR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant having been convicted for commission of offence under Sec. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") and sentenced to undergo R.I. for 4 years and to pay a fine of Rs. 1000.00, in default, to undergo R.I. for a further period of one year by the learned Asst. Sessions Judge, Rourkela by judgment dated 22.01.1992 passed in S.T. No.136/39 of 1991, has preferred this appeal.

(2.) On 04.01991, the I.I.C., Tangerpali Police Station had received a reliable information that the appellant was dealing with Narcotic substance in his house. On his direction, the S.I. of Police of that Police Station, Mangra Kujur, P.W.6 rushed to the spot to verify the information. On his arrival, the police raiding party called independent witnesses and in their presence, P.W.6 searched the house when the wife and children of the appellant were present. P.W.6 recovered one plastic bag containing 9.800 grams, second plastic bag containing 3 Kgs., one Tin container containing 800 grams, one cloth bag containing 1.500 grams of 'Ganja'. P.W.6 also found another cloth bag containing the measuring tablets of denomination of 500, 200, 100, 50 and 20 grams. The appellant being not present, P.W.6 seized all such articles including the 'Ganja' and properly sealed all packets containing 'Ganja' in presence of the wife and independent witnesses and immediately produced all seized articles as well as the witnesses before the I.I.C., Tangerpalli Police Station who registered P.S. Case No.38(6) of 1991 and directed P.W.6 to take up investigation of the case. In course of investigation, appellant was arrested, seized articles were deposited in Court Malkhana and after completion of investigation, P.W.6 submitted charge-sheet against the appellant. The appellant pleaded not guilty to the charge and took the plea of denial. In order to substantiate the charge, prosecution examined 6 witnesses, out of whom P.W.6 is the S.I. of Police who had detected and recovered the contraband articles and investigated into the case. P.W.5 is the constable of police and P.W.3 is the A.S.I. of Police in whose presence search and seizure were made. P.Ws.1, 2 and 4 are said to be independent witnesses to search and seizure. Apart from oral evidence, prosecution has also produced seizure list, F.I.R. and seized 'Ganja', M.Os. I to IV. The learned trial court placing reliance on the testimony of the P.Ws.3, 5 and 6 held the prosecution to have established the charge against the appellant beyond reasonable doubt.

(3.) In assailing the impugned judgment of conviction and order of sentence, it is argued by the learned counsel for the appellant that so far as the allegation of recovery of bags containing 'Ganja' from the house of the appellant is concerned, the prosecution has signally failed to establish that the same was recovered from the exclusive or conscious possession of the appellant. It is argued that there is no iota of evidence indicating the fact that the appellant was in exclusive possession of that house having knowledge and control over all articles found in that house. Material on record indicates that the alleged articles were recovered when the appellant was not in that house since a woman and some children were in that house at the relevant time of alleged search and seizure. On the basis of such submission, it is argued that the evidence of P.Ws. 3, 5 and 6 does not indicate that the alleged seized articles were actually seen immediately after the alleged seizure and kept in safe custody in the Police Station till produced in the Court. It is contended that the prosecution should have ruled out the possibility of tampering the seized articles by leading cogent evidence to the effect that the articles were properly sealed at the spot with a brass seal which was kept in the custody of an independent witness. P.W.6 having merely stated that he sealed the seized articles with paper seal and when no evidence as to its safe custody and when there is nothing on record to hold that any sample drawn from the seized articles and sent to chemical examiner to ascertain the nature of the articles seized, it is also unsafe to hold that any 'Ganja' recovered from the possession of the appellant. That apart, it is also submitted that P.W.6 himself having conducted search, effected seizure and arrested the appellant, should not have proceeded with the investigation in order to ensure fair play and impartiality. On such ground, it is submitted to set-aside the impugned judgment of conviction and order of sentence.