MADHYAM BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants Madhyam Behera, Ananda Nayak, Arun Sahani and Kalia @ Somonath Sahani Swain have filed the above misc. cases under section 389 of Cr.P.C. seeking for bail pending disposal of the appeals. The appellants faced trial in the Court of learned Addl. Sessions Judge -cum- Special Judge, Phulbani in G.R. Case No.42 of 2014 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereafter ' N.D.P.S. Act ') for transporting 41 kg. 440 grams of ganja in an ambassador car on 31.07.2014 at about 5.30 a.m. at Gadiapada ghat. The learned trial Court vide impugned judgment and order dated 27.08.2016 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each, in default, to undergo R.I. for one year each.

(2.) The prosecution case, in short, is that on 31.07.2014 at about 4.15 a.m. the Inspector in Charge of Kajuriapada police station received reliable information that four persons who were in possession of huge quantity of ganja were likely to transport the same in one ambassador car bearing registration No.OR-12- 4811 being escorted by one motorcycle. The I.I.C. immediately organized a raiding party comprising of himself and other police staff and after entering the information in the station diary entry and sending intimation to S.D.P.O., Sadar, Phulbani and S.P., Kandhamal proceeded immediately towards Gadiapada ghat. He could not obtain the search warrant due to paucity of time. At about 5.30 a.m., the raiding team noticed the ambassador car coming from Phulbani side being escorted by one motorcycle and all on a sudden on seeing the presence of the police team, the motorcycle rider left the spot leaving the motorcycle. However, the team could manage to intercept the car and four persons including the driver were found in the car and they disclosed their names and addresses and they were the appellants in the two criminal appeals and they admitted to have been in their possession huge quantity of ganja inside the dickey of the car in two bags. The appellants failed to produce any authority or licence for possession or transportation of ganja. The personal search of the appellants were taken and thereafter the car was searched in presence of the Magistrate and two plastic bags were recovered from the dickey and on weighment, the ganja was found to be 41 kg. 440 grams. Three samples each weighing 50 grams were collected from the contents of each bag and the bulk quantity ganja, sample ganja were labeled, sealed and seized. After lodging of the F.I.R., the seized samples were sent to S.F.S.L., Bhubaneswar and a detail report under section 57 of the N.D.P.S. Act was submitted. The ownership of the seized car and motorcycle was verified from R.T.O., Kandhamal and after completion of investigation, charge sheet was submitted on 26.11.2014 under sections 20(b)(ii)(C) / 27-A / 29 of the N.D.P.S. Act against the appellants. The appellants were specifically charge sheeted under section 20(b)(ii)(C) of the N.D.P.S. Act whereas the co-accused Biku @ Bikram Behera was charge sheeted under sections 27-A / 29 of the N.D.P.S. Act showing him as an absconder.

(3.) The learned trial Court after assessing the evidence on record has been pleased to hold that the evidence of the police officials cannot be discarded merely on the ground that they belonged to the police force and are either interested in the investigating or the prosecuting agency, however, as far as possible, the corroboration of their evidence on material particulars should be sought. The learned trial Court further held that the car in question was seized in connection with transportation of ganja and the official witnesses to the seizure supported the case of the prosecution. The Scientific Officer P.W.17 stated that on 19.8.2014 he conducted chemical and microscopic examination of the sample forwarded by S.D.J.M., Phulbani and found the same to be flowering and fruiting tops of cannabis plants. After discussing the compliance of provisions of sections 42 / 43 of the N.D.P.S. Act, it was held that whenever the alleged offence was dictated during day time, legally there was no reason to record the grounds of beliefs and the police is authorized to proceed with search and seizure after intimating his officer superior. It was further held that the prosecution case cannot be faulted and that there was full compliance of the provision of section 42 of the N.D.P.S. Act. Discussing the compliance of section 50 of the N.D.P.S. Act, it was held that there has been sufficient averment in the notices that the appellants were informed about their right for search in presence of Magistrate or Gazetted Officer. It was further held that the appellants during their statements recorded under section 313 of Cr.P.C. have simply stated that a false case has been foisted against them. They are silent about the circumstances under which such a huge quantity of ganja was recovered from the car in which they were travelling. Taking recourse to section 35 of the N.D.P.S. Act and absence of any explanation by the appellants under section 106 of the N.D.P.S. Act to the contrary, it was held that the appellants were in conscious possession of contraband articles and transporting the same in the car without any authority. While discussing the compliance of provisions under sections 55 / 57 of the N.D.P.S. Act, the learned trial Court has been pleased to hold that there is nothing to show that there has been some mischief with the seized sample during the intervening night of 31.07.2014/01.08.2014. It is further held that the Investigating Officer promptly submitted the sample to the Court and arranged its submission before S.F.S.L., Bhubneswar to exclude any theory of mischief, therefore, it was held that there has been full compliance of the provisions of section 57 of the N.D.P.S. Act. The learned trial Court further held that the prosecution has successfully proved that on the relevant day, the appellants were in exclusive and conscious possession of 41 kg. 440 grams of ganja without any authority and were transporting the same in the Ambassador car bearing No.OD-12-4811 near Gadiapada ghat.