STATE OF ORISSA Vs. PRASANNA KUMAR SWAIN

JUDGEMENT

(1.) THE State of Orissa calls in question, the judgment and order dtd. 7.3.1992 passed by the Sessions Judge, Sundargarh in ST. No. 144/1991 acquitting the accused -Respondent of the offence under Section 20(b)(i) of N.D.P.S. Act.

(2.) THE prosecution case lies in a short compass. On 30.1.1991 at about 7.30 A.M., the S.I. of Excise, Rajgangpur (P.W.3), receiving reliable information that the accused -Respondent had kept Ganja without being backed by any authority, raided his house and recovered a bag containing Ganja. On weighment the same came to 950 gms. The S.I. took two samples thereof and sent one such sample though Court to State Forensic Science Laboratory, Rasulgarh for chemical examination. On chemical examination, the chemical examiner confirmed the sample to be Ganja. After completion of inquiry, the S.I. submitted P.R. under Section 20(b)(i) of N.D.P.S. Act. Since the accused -Respondent denied the charge, he faced the trial. In order to establish its case prosecution examined three witnesses in all; of whom P.W.1 and 2 are said to be two independent seizure witnesses and P.W.3 is the Excise Constable who helped the S.I. in the raid. Defence did not prefer to examine any witness. After assessing the evidence on record, the trial Court acquitted the accused holding that the S.I. of Excise was not empowered during the relevant time to conduct raid under N.D.P.S. Act and that the recovery of Ganja from the house of accused -Respondent could not be proved beyond reasonable doubt. The State of Orissa has preferred the present appeal against the said judgment and order of acquittal.

(3.) THE offence under Section 20(b)(i) of N.D.P.S. Act is punishable with imprisonment of 10 years and fine which may extend to Rs. 1 lakh. Graver the offence stronger should be the evidence. In the present case, the prosecution ought to have examined the S.I. of Excise, who made search and seizure. But he has not been examined. It transpires from the evidence of P.W.3 that a cloth bag containing 950 gms. of Ganja was recovered from the house of Respondent, samples were drawn in two packets, thereafter the Ganja was seized, but there is no evidence as to how could he know the quantum of Ganja recovered. His evidence is conspicuously silent with regard to weighment of Ganja said to have been seized from the house of Respondent and the quantum of sample drawn there from. During cross -examination, P.W.3 failed to tell about the ownership of the house wherefrom Ganja was alleged to have been recovered and seized. No Amin or any survey knowing Officer was requisitioned to ascertain the ownership of the house in question. It is found from the evidence of P.W.3, that by the time he arrived near the place of seizure, the Respondent was found sitting in a betel shop. The S.I. of Excise called him to the house in question, whereafter it was searched. There is no evidence, whatsoever, that P.W.3 had earlier acquaintance with the Respondent or that he had seen his house. His evidence is also silent as to whether the S.I. of Excise had known the Respondent or had seen his house earlier. There is no any witness to say that the house where from Ganja was said to be recovered belongs to the Respondent. So, it would be hazardous to set aside the order of acquittal and record an order of conviction.