E. SRINIBAS AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant E. Srinibas in CRLA No.591 of 2010, appellant Smt. Pyari Bag in CRLA No.566 of 2010, appellant Smt. Putana Kumbhar in CRLA No.607 of 2010 and appellant Kamalesh Mandal in JCRLA No.11 of 2012 faced trial in the Court of learned Sessions Judge-cum-Judge, Special Court, Kandhamal-Boudh, Phulbani for offence punishable under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act (hereafter 'N.D.P.S. Act') on the accusation that on 07.09.2008 at about 09.30 a.m. on the N.H. No.270 in front of Mahalaxmi Filling Station, Balliguda, in contravention of provision of section 8 of the N.D.P.S. Act, they were found transporting 196 kgs. of ganja (cannabis). The learned trial Court vide impugned judgment and order dated 11.10.2010 found the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh) each only, in default, to undergo rigorous imprisonment for further period of two years.

(2.) The prosecution case, as per the first information report lodged by Sri K.N. Rao (P.W.8), Inspector in Charge of Balliguda police station is that on 07.09.2008 while he along with A.S.I. S.K. Mishra, C/471 Jaya Krushna Kanhar, C/442 Dusmanta Pradhan were performing road blocking in front of Mahalaxmi Filling Station, Balliguda in view of prevailing law and order situation in presence of Executive Magistrate Manoj Kumar Swain (P.W.9), they found one white colour Tata Sumo vehicle bearing registration no.CG 04 H 1204 came from the side of Dandapadar village and stopped near the road at 9.30 a.m. as barriers were put on there. The informant while checking the vehicle found four persons inside it, out of which two were male and two were female. The male persons were sitting in the front seat whereas the female persons were sitting behind in the back seat. Three plastic bags and one coloured air bag were found in between the front seat and the middle seat whereas six plastic bags were found in the back portion of the vehicle. Smell of ganja was emanating out of the vehicle. When the informant demanded the identity of the occupants, the appellants who were there in the vehicle disclosed their names and addresses and on query, they told that the contents of the bags were ganja. The informant intimated about the detention of the vehicle containing ganja to his official superiors over phone and directed A.S.I. Arpita Khatua (P.W.7) to come to the spot to remain present during search of the vehicle. He also sent requisition to the Sub-Collector, Baliguda to depute a Magistrate to remain present during search of the vehicle and called two witnesses from the locality namely Banamali Behera (P.W.1) and Subrat Kumar Pradhan (P.W.2). The informant received intimation from the office of the Sub-Collector, Baliguda that P.W.9 has been deputed as Executive Magistrate to remain present during search and seizure. The informant along with the other witnesses and the Magistrate gave their personal search to the appellants and nothing incriminating were found from their possession. The vehicle was searched in presence of the witnesses and the Executive Magistrate and three plastic bags and one air bag were seized from the middle seat of the vehicle and six plastic bags were seized from the back portion of the vehicle filled with flowering and fruiting tops of the cannabis plants (ganja). The informant sent A.S.I. S.K. Mishra to call a person to come with weighing instruments and to arrange sealing materials, covers etc. for weighment, sealing and packing of ganja. Muna Patra (P.W.4) arrived at the spot with weighing machine and other required articles and he also gave his personal search and nothing incriminating material was found from his possession. The plastic bags were brought out from the vehicle and on weighment, it was found that the plastic bags marked as "A", "B", "C", "D", "E", "F", "G", "H" "I" and "J" were containing kg.23.750 grams, kg.23.600 grams, kg.23.000 grams, kg.23.600 grams, kg.24.500 grams, kg.24.000 grams, kg.10.200 grams, kg.23.250 grams, kg.17.300 grams and kg.3.800 grams of ganja respectively and the total weight of the ganja came to 196.00 kgs. Two samples of 50 grams each from each of the bags were taken and those were marked as A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2, E-1, E-2, F-1, F-2, G-1, G-2, H-1, H-2, I-1, I-2 and J-1, J-2 respectively. The samples were kept in polythene packets and those were kept in paper packets separately and sealed with the personal seal of the informant. The bulk ganja in the plastic bags were also sealed keeping those in cotton bags separately and the personal seal impressions of the informant were given on it. The weighment slip and drug secret memos were prepared. The specimen sample seal impression of the brass seal was taken on a plain paper in presence of the witnesses and all the sample packets along with bulk ganja were seized in presence of the witnesses and the Executive Magistrate. The white colour Tata Sumo vehicle was also seized in presence of the witnesses. The personal brass seal of the informant with which all the sample packets and bulk ganja bags were sealed, was left in the zima of Banamali Behera (P.W.1) under zimanama. The copies of the seizure lists which were prepared were handed over to the appellants and their signatures were taken on the seizure lists. Since the appellants were found transporting ganja in the Tata Sumo vehicle without any authority, they were arrested by the informant at 3.45 p.m. on 07.09.2008 after informing them the grounds of arrest and after observing all formalities of arrest. The informant drew up the plain paper F.I.R. at the spot and took up investigation and returned to the police station. On the arrival at the police station, on the basis of such F.I.R., Baliguda P.S. Case No.90 of 2008 was registered on 07.09.2008 under section 20(b) of the N.D.P.S. Act against the four appellants. The informant directed the A.S.I. Arpita Khatua (P.W.7) to take up investigation of the case and he kept the four appellants in the police station lock up. P.W.7 Arpita Khatua after taking over charge of investigation from P.W.8, examined the informant so also the other witnesses. She visited the spot at 5.45 p.m. and forwarded the appellants to the Court on 08.09.2008. She produced the seized articles along with the sample packets in the Court on 09.09.2008 and made a prayer to forward the samples to the S.F.S.L., Bhubaneswar for chemical examination which was allowed. She kept the seized ganja packets in the Court Malkhana as per the orders of the Court and took the sample packets for sending those for chemical examination. Since there was law and order situation prevailing in the district, the sample packets were kept in police station Malkhana and on 12.09.2008 after normalcy was returned, the sample packets were dispatched to S.F.S.L., Bhubaneswar through constable for chemical analysis. On 24.12.2008 the Inspector in Charge of Balliguda police station took over charge of investigation from P.W.7 and after completion of investigation, charge sheet was submitted on 05.01.2009 under section 20(b) of the N.D.P.S. Act.

(3.) The defence plea is one of denial and it is specifically pleaded that no contraband ganja was seized from their possession and they have been falsely implicated in the case.