BUNG BALARAM BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant faced trial as an accused for offences under Sections 18 and 20(b)(I)(ix) of the N.D. and P.S. Act as well as 47(a) of the Bihar and Orissa Excise Act, in S.T. No. 16/150 of 1990 before the 2nd Addl. Sessions Judge, Puri. By the judgment dated 15.9.1990, the learned 2nd Addl. Sessions Judge, Puri found the appellant not guilty under Section 18 of the N.D. and P.S. Act and acquitted him of the said offence, but found the appellant guilty under Section 47(a) of the Bihar and Orissa Excise Act and convicted him thereunder and sentenced him to undergo R.I. for a period of six months and pay a fine of Rs. 500/ -, in default, to undergo R.I. for a further of two months.

(2.) THE case of the prosecution is that on 19.11.1988 at about 4.30 P.M., P.W. 1 (A.S.I, of Excise) and P.W. 2 (Constable of Sadar Mobile, Puri) while performing their patrol duty at Sea -beach area found the accused -appellant proceeding towards Swargadwar holding a bag in his hand. It is their further case that the said P.Ws. suspected that the accused -appellant might have been in possession of contraband opium and other excisable articles for which they detained the appellant on the road in front of Mahodadhi Nibas. But while making arrangements to make search and seizure, the appellant suddenly threw the cloth bag in which contraband was later found and ran away towards Nolia Sahi. It is alleged that the said P.Ws. chased the appellant, but failed. Thereafter, in the presence of witnesses, P.W. 1 opened the bag from which he found a 'Jari packet' containing 45 gms. of opium and another paper packet containing 115 gms. of non -duty paid ganja. Those articles were seized in presence of witnesses under a seizure list marked Ext. -1 and put into a sealed packets and were produced before the S.I. of Excise (P.W. 4). P.W. 4 opened those sealed packets and having been satisfied that those packets were containing opium and non -duty paid ganja, took sample of 20 gms. from each packet and sent them for chemical examination. The report of the Chemical Examiner reveals that the seized articles, in fact, constituted opium and non -duty paid ganja.

(3.) P .W. 1, the A.S.I, of Excise and P.W. 2, the constable had made the search arid seizure and P.W. 4 was the S.I. of Excise before whom the seized articles were produced. Apart from these official witnesses, the only independent witness was P.W. 3, namely, Sankara Samantaray.