BINOD PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Binod Pradhan in CRLA No.181 of 2012 and appellant Prafulla Kumar Sahu in CRLA No.210 of 2012 faced trial in the Court of learned 2nd Addl. Sessions Judge, Cuttack in 2 (a) C.C. Case No.80 of 2010 for the offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act') on the accusation of transporting 141 kgs. of ganja in different gunny bags in Maruti 800 car having front side number plate bearing registration no. OR 05 A 5978 and registration no. OR 05 F 1057 (at the back side of same number plate) on 28.09.2010 at about 5.20 p.m. of NH No.5 at Mahanadi bridge near Sikharpur. The appellants were found guilty of the offence charged and accordingly convicted thereunder and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default, to undergo rigorous imprisonment for one year each.

(2.) The prosecution case, in short, is that on 28.09.2010 at about 4.10 p.m. P.W.3 Amarendra Kumar Jena, Inspector of Excise, Unit-II, Cuttack along with his staff were checking vehicles at Sikharpur on Mahanadi bridge and they noticed one Maruti 800 car bearing Registration No. OR 05 A 5978 moving towards Cuttack city in a suspicious manner. In spite of the signal of P.W.3, the driver of the Maruti car did not stop and on the instruction of P.W.3, the staff of P.W.3 who were at a distance of 100 meters away stopped the vehicle. P.W.3 and his staff rushed to the spot and on verification, it was found that there were polythene packets inside the Maruti car and smell of ganja was emanating from it. Appellant Prafulla Kumar Sahu was driving the Maruti car and appellant Binod Pradhan was sitting nearer to him in the front seat. P.W.3 procured one independent witness from the spot and he asked the appellants to exercise their option regarding their examination by the Executive Magistrate or a Gazetted Officer in compliance of section 50 of the N.D.P.S. Act and the copies of the option letters were also served on the appellants and their signatures were obtained in token of acknowledgement. Both the appellants exercised their written options separately giving their consent to be searched by P.W.3. After observing all the formalities of search, P.W.3 searched the Maruti car and from the rear seat of the car, he recovered seven numbers of jerry bags and in each jerry bag, there was one paper cartoon containing ganja. He opened the jerry bag as well as the paper cartoons and obtained one gram of sample ganja from each of the paper cartoons for testing purpose and it showed the physical structure of ganja. P.W.3 also tested the sample ganja by small test with rubbing it on his palm and he also burnt the ganja to inhale the smoke. From the aforesaid tests coupled with the departmental narcotic training knowledge including special training from Narcotic Bureau, Calcutta and his fifteen years of service experience, P.W.3 came to hold that all the seven paper cartoons contained ganja. P.W.3 then weighted each of the jerry bags with paper cartoon containing ganja which was marked as Sl. Nos.1 to 7. Sl. Nos.1 and 2 each weighted 15 kgs. excluding the weight of jerry bags and paper cartoon and Sl. Nos.3, 4, 6 and 7 each contained 23 kgs. of ganja excluding the weight of jerry bags and paper cartoons and Sl. No. 5 contained 19 kgs. of ganja excluding weight of jerry bag and paper cartoon. The total weight of ganja was found to be 141 kgs. and the weighment chart was prepared by P.W.3. The appellants could not produce any licence/authority for transportation and possession of the commercial quantity of contraband ganja and they also confessed that they had used fake registration number on the Maruti car while transporting ganja. P.W.3 seized the Maruti car, the registration number plates of the vehicle, seven jerry bags and paper cartoons containing ganja under seizure list Ext.1/2 and he supplied copies of the seizure list to the appellants who received the same after putting their signatures. All the jerry bags having paper cartoons containing ganja were paper sealed with impression of the personal brass seal of P.W.3 and brass seal impression was also given on the seizure list and the personal brass seal was handed over in the zima of witness Laxmidhar Sahu (P.W.1) under zimanama Ext.5/1. P.W.3 proceeded to Chauliaganj police station to keep the seized articles in the safe custody of police malkhana but the I.I.C. of Chauliaganj police station was on duty outside and the P.S. malkhana was under renovation work for which P.W.3 could not keep the seized articles in the said P.S. malkhana and he proceeded to Markat Nagar police station under whose jurisdiction the excise malkhana was located. P.W.3 handed over the seized articles to I.I.C. S.S. Tripathy of Markat Nagar police station who received the seized property in the P.S. malkhana vide P.S. malkhana no.15 dated 28.09.2010. The appellants were arrested after the grounds of arrest were explained to them and they were produced on the next day i.e. 29.09.2010 before the learned S.D.J.M., Sadar, Cuttack along with the seized properties after taking out the same from the malkhana in charge of Markat Nagar police station. P.W.3 requested the Court for drawal of samples of the seized ganja for chemical examination and accordingly, the samples were drawn from each of the jerry bags and the learned S.D.J.M., Sadar, Cuttack sent the total seven drawn samples under the seal impression of the Court to SDTRL, Bhubaneswar for chemical analysis and report and the rest of the ganja were kept in the Sessions Court malkhana. P.W.3 received the chemical examination report which revealed that all the seven samples were found to be ganja (cannabis). P.W.3 ascertained from the office of the RTO, Bhubaneswar that registration no.OR 05 A 5978 was issued against another person, the owner of a Rajdoot motor cycle and the other registration no.OR 05 F 1057 which tallied with the chassis and engine number of the seized Maruti car was issued against the owner Chitta Ranjan Samatray. The I.O. on further enquiry came to know that the owner of the Maruti car was dead and the widow of the deceased owner had sold away the Maruti car to one Sanjay Kumar Biswal. P.W.3 issued notice to Sanjay Kumar Biswal to produce the papers relating to the seized vehicle but he avoided despite receipt of the notice. After completion of investigation, P.W.3 submitted the prosecution report not only against the appellants but also against Sanjay Kumar Biswal.

(3.) The defence plea of the appellants is one of denial.