MOHAMMAD AWESH MEMON Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellants have assailed their conviction U/s.20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) and sentence to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- each, in default to undergo R.I. for one year in the judgment dtd.25.3.2015 / 6.5.2015 passed by the learned Sessions Judge-cum-Judge, (Special Court), Sambalpur in T.R. Case No.55 of 2012.

(2.) Tersely put, the prosecution case is that on 22.7.2012 at about 12.30 P.M. at Bhabanipali, while P.W.3 - the Inspector of Excise along with his staff including P.W.1 - Constable was patrolling, intercepted one Indigo Car bearing registration No.CG-04-HD-1338 on suspicion. Both the appellants were inside the vehicle. Appellant Baldev was the driver. Appellant Mohammad Awesh Memon was the occupant. Both of them were interrogated and were given option U/s.50 of NDPS Act. They expressed to be searched by P.W.3. Thereafter in presence of one independent witness (P.W.,2), search of the vehicle was conducted by P.W.3. A Jery bag containing 60 Kg. of Ganja was recovered. It was weighed. P.W.3 collected two sample packets each containing 50 gm. from the bulk and using his brass seal, sealed the bulk packet vide Ext.A (M.O.I), Ext.A-a - Ext.A-b (M.O.II). He prepared seizure list, recorded statement of accused persons and ascertained that the seized ganja was procured from one Iswar Prasad Satpathy (acquitted) and one Brahmanandam Jarvadi was the owner of the seized vehicle. P.W.3 - Inspector forwarded seized ganja to Town Police Station for safe custody and kept accused persons under his guard.

(3.) Learned counsel for appellant Mr. Manas Chand submitted that learned Special Court has committed error in not considering the material inconsistent testimonies of P.W.1 and P.W.3 which excludes the presence of accused persons at the spot. Further, when the informant is the investigating officer, the non-production of brass seal in court and absence of any evidence that the seized ganja was kept in police station Malkhana till production in court, create doubt about reliability of P.W.3. Added to that, he submitted that non-compliance of Section 42 is prejudicial to the interest of defence. For such defective investigation, when trial court has considered two cases detected in one hour gap, the accused persons should have been given benefit of doubt as per decision reported in (2018) 72 OCR (SC) 196 Mohan Lal Vrs. State of Punjab. 3-A. Learned Addl. Government Advocate Mr. P. K. Patnaik repelled the above argument contending that the well reasoned impugned judgment does not merit any interference in the appeal. He submitted that the Mohan Lals case (supra) has been clarified by the Honble Apex court in the decision reported in (2019) 73 OCR (SC) 946 Varinder Kumar Vrs. State of Himanchan Pradesh.