MUKUNDA KONHARA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant having been convicted for commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for a further period of two years by the learned Sessions Judge-cum-Special Judge, Phulbani vide judgment of conviction and order of sentence dated 15.02.2010 passed in G.R. Case No.1 of 2008, has preferred this appeal.

(2.) Prosecution case placed before the trial court that on 001.2008 at about 130 noon, P.W.8, Officer-in-charge, Phiringia Police Station with police raiding party performing patrolling at village-Nuapadar to keep vigil over communal violence that erupted in that locality. P.W.8 found in a flick the appellant running away from his house towards forest. Suspecting his involvement in communal violence, P.W.8 chased him, but could not apprehend when the appellant concealed his presence in a nearby forest. However, the over suspecting police rushed towards his house where they found the thatched room was under lock and adjoining terrace house left open. When peculiar odor of 'Ganja' emitting from the open window of that terrace house, P.W.8 climbed over the roof of the terrace and found huge quantity of 'Ganja' spread over the roof for processing. After observing all formalities of house search, P.W.8 in presence of Executive Magistrate (P.W.1) and C.I. of Police, Phulbani (P.W.7) broke open the lock of the thatched house and opened the door of that terrace house. They found 7 packets of 'Ganja' staked in that unlocked terrace room and 7 bags of 'Ganja' spread over that roof top. P.W.8 also found 9 bags of 'Ganja' staked in that thatched house. In presence of independent witness, P.W.6 and official witnesses, P.Ws.1 and 7 after observing all formalities of search and seizure, P.W.8 took weighment of 12 bags and found contained altogether 115 Kgs. of 'Ganja'. P.W.8 thereafter drew sample of 25 grams each from 23 bags and thereafter sealed the recovered bags of 'Ganja' as well as sample packets affixing his paper seal and impression of his brass seal. Since the appellant could not be traced, P.W.8 prepared seizure list in his absence, released the brass seal in favour of an independent witness, drew up plain paper F.I.R., returned to the Police Station, deposited the seized articles in Malkhana, registered the case and on 29.06.2008 made over charge of investigation to P.W.7 who sent the sample packets to the Forensic Science Laboratory under forwarding report and on completion of investigation, submitted charge-sheet. The appellant pleaded not guilty to the charge and took the plea of denial in the trial. In order to substantiate the charge, prosecution examined 10 witnesses, exhibited 17 documents and produced XLVI Material Objects. Two witnesses were also examined on behalf of the defence in support of its plea of false implication. The learned trial court placing reliance on the evidence of P.Ws.7 and 8 and other prosecution witnesses held the prosecution to have established the charge against the appellant.

(3.) In assailing the impugned judgment of conviction and order of sentence, it was argued by the learned counsel for the appellant that so far as the allegation of recovery of 23 numbers of gunny bags containing 'Ganja' from the house of the appellant is concerned, the prosecution has miserably failed to establish that the same was recovered from the exclusive and conscious possession of the appellant. It was further argued that there is no iota of evidence indicating that the house in question was in exclusive possession of the appellant. It was also argued that P.W.8's evidence does not indicate that allegedly seized articles were properly sealed and kept in safe custody till its production in Court on 07.02.1008. It was further contended that the prosecution should have ruled out the possibility of tampering with the seized articles by leading cogent evidence to the effect that the articles were properly sealed at the spot and the brass seal was kept in the custody of independent witness. In the absence of such evidence, it would not be safe to infer that what was examined in the Laboratory was recovered from the exclusive possession of the appellant. The learned counsel for the appellant also contended that the prosecution has failed to establish compliance of provisions under Sections 42, 52, 55 and 57 of the Act by the Investigating Officer. Lastly, it was contended that P.W.1 himself having conducted search, effected seizure, kept the sample packets in his own custody, should not have proceeded with the investigation in order to ensure fair trial and impartiality. In support of his contention, the learned counsel for the appellants has relied upon several decisions.