JUDHISTIR PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal has been directed against the judgment of conviction and order of sentence dated 15.03.2003 passed by the First Additional Special Judge, Puri in T.R. Case No. 3/91 of 2001/2000.

(2.) The prosecution case in short is that on 19.08.2000 around 1.00 PM the I.I.C. of Konark Police Station (P.W.12) received reliable information as regards illegal possession of brown sugar (heroin) and sale of the same in the new bus stand area at Konark by the appellants. Having entered the same in the station book of the police station, he informed the said fact to the S.D.P.O. and Superintendent of Police, Puri over telephone in order to verify the correctness of the information. He with other police staffs left the police station at 1.15 PM in the official jeep carrying with them, two independent witnesses, P.Ws. 1 and 2. Having arrived at the Radio repairing shop of deceased accused Judhistir in the new bus stand area at Konark, they surrounded the said shop to prevent any one's escape from the place. It is stated that three persons were inside the shop and they gave their identity being so asked, who are the accused persons. Being told about the suspicion that they were having the brown sugar (heroin) with them, P.W.12 while expressing his intention to search, asked them as to whether they wanted to be searched in presence of a Gazetted Officer or an Executive Magistrate. It is stated that they opted in writing to be searched in presence of the Executive Magistrate. So, the A.S.I., P.W.7 was deputed to call the then Additional Tahasildar-cum-Executive Magistrate, P.W.6 to the spot for personal search of the appellants to be carried out. He arrived at the spot and gave his identity to the appellants. After giving personal search of the members of the raiding party and also others present to the accused persons; and then observing all the formalities, personal search of the accused persons one after the other commenced around 2.00 PM in presence of the Executive Magistrate, P.W.6 and other witnesses, P.Ws. 1 and 2 inside that Radio repairing shop. It is next stated that one polythene packet of brown sugar (heroin) was recovered from the back side pant pocket of accused Judhistir (since dead) and the packet net content of the brown sugar come to weight 11 grams. Similarly, the personal search of Pravat being carried out, one polythene packet of brown sugar (heroin) was recovered from the left pocket of his shirt and the next weight of the contents of brown sugar (heroin) therein came to 7 grams; at last the personal search of accused Ajay was taken up and from his left front pocket of the shirt, a polythene packet containing brown sugar (heroin) of 6 grams was recovered. It is stated that the samples were collected from the contents of each of those packets recovered from the accused persons separately and all other formalities including the preparation of the seizure list etc were observed. It is the case of the prosecution that after the search, recovery, seizure and observation of all such formalities, at the spot, the accused persons were arrested around 5.30 PM and thereafter FIR was lodged at the Police Station giving rise to the registration of Konark P.S. Case No. 62 of 2000 for commission of offence under section 21 of the NDPS Act.

(3.) Finally on completion of the investigation and after obtaining the report from the chemical examiner which confirmed the samples sent for examination as 'Diacetyl Morphine' (heroin/brown sugar) charge sheet was placed.