BISWANATH PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Biswanath Patra faced trial in the Court of the learned Addl. Sessions Judge -cum- Special Judge, Malkangiri in Criminal Trial No. 80 of 2003 for offence punishable under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act') and he was found guilty under section 20(b)(ii) of the N.D.P.S. Act and sentenced to undergo R.I. ten years and to pay a fine of rupees one lakh, in default, to undergo R.I. for a further period of two years vide impugned judgment and order dated 17.01.2007.

(2.) The prosecution case, as per the first information report dated 04.10.2003 lodged by one Sunil Arun Kumar Nayak (P.W.13), S.I. of Police, Malkangiri Police Station is that on 04.10.2003 at about 10.40 a.m. he received credible telephonic information that an old man was moving in a SBMS bus bearing registration No.OR-10B-5227 sitting on seat no. 35 from Kalimela towards Malkangiri and he was carrying one plastic handbag containing ganja and the bus was proceeding from MV79 towards Jeypore. P.W.13 entered the information into writing in a P.S. station diary vide SDE No. 62 dated 04.10.2003 at 10.40 a.m. and intimated the fact by sending the abstract of the station diary to the C.I./S.P., Malkangiri through constable No. HC/200 C. Bishoi by making diary entry. Since there was no time to obtain search warrant and there was every possibility of decamping of the suspect from the bus, P.W.13 along with other police officials proceeded to the spot and they arrived at 11 a.m. and on arrival at the spot in question, when the bus arrived, he stopped the bus and told the driver to keep the bus on the left side of the road. Then P.W.13 along with his staff entered into the bus and found one person was sitting in seat no. 35 and was holding one plastic bag keeping it on his thigh and pungent smell of ganja was coming from the hand bag. On being confronted, the old man claimed to be the owner of the bag and further stated that it was containing ganja and he procured the same from the jungle area of Kalimela police station from one unknown person and that he was taking the same to Ganjam district to sell it for higher profit and he disclosed his name as Biswanath Patra (appellant). After detention of the appellant, P.W.13 called two independent witnesses of the locality and offered option in writing to the appellant whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The appellant offered in writing that he intended to be searched in presence of a Magistrate. P.W.13 sent requisition to S.D.M., Malkangiri through constable with a request to depute an Executive Magistrate to remain present at the time of search and seizure. At about 1.00 p.m., Tahasildar -cum- Executive Magistrate, Malkangiri Sri Radha Ballav Pattnaik (P.W.12) arrived at the spot and P.W.13 narrated about the events and the identity of the Executive Magistrate was conveyed to the witnesses as well as to the appellant and the appellant was asked to get down from the bus with his hand bag containing ganja. A constable was sent to call a weighman who came to the spot and in the presence of the Executive Magistrate as well as other persons, personal search of the appellant was taken but nothing incriminating was found except a cash of Rs.160/- and one bus ticket and when the hand bag was opened, it was found to be containing fruiting and flowering tops of contraband ganja. The appellant failed to produce any licence, authority or permission to possess such ganja. The ganja was weighed by the weighman Sanjib Kumar Ray (P.W.6), which came to 2 K.G. and an extract of 24 grams of sample in duplicate was taken in two polythene covers which were again kept in two paper envelopes and were marked as 'A1' and 'A2' and the paper slips containing the signatures of the appellant, Executive Magistrate, weighman, witnesses and P.W.13 with seals were put inside each of the sample packets as well as bulk quantities. The seizure list of ganja of bulk quantity with the plastic hand bag and sample packets drawn was prepared and copy of the seizure list was supplied to the appellant. A separate seizure list was prepared for cash of Rs.160/- and the bus ticket and the personal seal of P.W.13 was left in the zima of the weighman Sanjib Kumar Ray (P.W.6) by executing proper zimanama. P.W.13 arrested the appellant after explaining the grounds of arrest, prepared the memo of arrest and drew up the plain paper F.I.R. at the spot and took up investigation of the case. The appellant was forwarded to Court and the samples were sent to R.F.S.L., Berhampur for examination. P.W.13 obtained chemical examination report, which indicated that the sample contained flowering and fruiting tops of the cannabis plant, commonly known as 'ganja'. Subsequently, the charge of investigation was taken over by the Inspector Narayan Mohanty who submitted charge sheet against the appellant.

(3.) The appellant was charged under section 20(b)(i) of the N.D.P.S. Act for unlawful possession of 2 K.G. of contraband ganja. The appellant refuted the charge, pleaded not guilty and claimed to be tried.