CHAINA DALAI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Single Judge appeal has been referred to a larger Bench to answer the following references made by the Hon'ble Single Judge.

(2.) Appellant has been convicted under Sec. 20(b)(1) of the N.D.P.S. Act, 1985. Case of the prosecution is that on 19.2.1990 the Inspector of Excise while on patrolling duty on suspicion searched the Appellant at Sathipur crossing near the bus stop at about 4.30 A.M. and during such search he found a tin box and a plastic coated bag in possession of the Appellant. On verification of the material inside such containers in presence of independent witnesses, ganja to the tune of 6 kg. 750 gm. was found in the tin box and similarly 2 kg. 500 gm. of ganja was also found in the bag. Accordingly a prosecution report was submitted. On conclusion of trial the Appellant was found guilty of the charge and was convicted for the said offence. Out of several contentions raised by the Learned Counsel for the Appellant before the Hon'ble Single Judge, one was that the chemical examination of seized ganja was mandatory and the same having not been done, the order of conviction is liable to be set aside. In support of the contention Learned Counsel for the Appellant relied on two decision of this Court, but the Hon'ble Single Judge referring to a decisions of the Apex Court referred the aforesaid question for determination by a Larger Bench. Hence this matter is before us for answering the references.

(3.) Shri Sahoo, Learned Counsel appearing for the Appellant submitted that that before enactment of the N.D.P.S. Act, 1985 which came into force on 16.9.1985, possession of ganja was punishable in Orissa under Sec. 47(a) of the Bihar and Orissa Excise Act, 1915. Ganja was included under the heading "intoxicating drug". The term "intoxicating drug" was defined in Sec. 2(13) of the Bihar and Orissa Excise Act. In the said Act, ganja was not specifically defined. However, in the N.D.P.S. Act, ganja was more specifically defined under the definition "cannabis" and the definition runs as follows: