The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.294 of 1995 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 26th September, 1995 passed by the learned Additional Sessions Judge, Sambalpur in S.T. No.43/17/5 of 1995. 1. Shyamsundar Sunar …. Appellant ---- State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.Abhas Mohanty, Advocate For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 03.07.2024 : Date of Judgment : 10.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 26th September, 1995 passed by the learned Additional Sessions Judge, Sambalpur in S.T. No.43/17/5 of 1995. By the impugned judgment, the Appellant (accused) has been convicted for commission of the offence under section 20(i) CRA No.294 of 1995 Page 1 of 7 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’) and sentenced to undergo rigorous imprisonment for five (5) years and pay fine of Rs.50,000/- (Rupees Fifty Thousand) in default to undergo rigorous imprisonment for one (1) year; and he too having been convicted for commission of offence under section 18 of the N.D.P.S. Act, has been sentenced to undergo rigorous imprisonment for ten (10) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) in default to undergo rigorous imprisonment for one (1) year for the said offence with the stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- On receiving the reliable information about clandestine possession and sale of Ganja and Opium by this accused (Shyama Sundar Sunar) and his brother Shiva Kumar Sunar in their cloth store situated at Maneswar Bazar, Sambalpur, the Officer-in- Charge of Sambalpur Sadar P.S. (P.W.7) reduced the same into writing in the Station Diary Book maintained at the P.S, sent the copy thereof to his Superior Officers and went to the spot for search and recovered contraband Ganja and Opium. It is said that on search of Cash Box kept in the shop, the contraband Ganja and Opium were found to have been kept inside. The I.O. (P.W.7) then observing the required formalities, seized those contraband Page 2 of 7 CRA No.294 of 1995 articles and when upon examination of the samples taken from the seized contraband, report came that those were Opium and Ganja. On completion of the investigation, Final Form has been submitted placing this accused to face the trial for commission of the offence under section 18 and 20(1) of the N.D.P.S. Act. 3. The Trial Court, having gone through the evidence of the prosecution witness (P.Ws.1 to 7) and the documents admitted in evidence on their behalf (Exts.1 to 6), has arrived at a conclusion that the prosecution has established its case beyond reasonable doubt as against this accused Shyam Sundar for being in possession of the contraband Ganja and Opium seized in connection with the case. Accordingly, this accused has been held guilty for commission of the offences under section 18 & 20(i) of the N.D.P.S. Act and sentenced as afore-stated whereas accused Shiva Kumar has been acquitted of the charges. 4. The defence plea is that of complete denial and false implication. However, accused Shyamsundar took a specific plea that P.W.5 came to his cloth shop and misbehaved with the lady sales assistant there was a tussle between him and P.W.5. For the said reason, police searched his shop and having failed to get any CRA No.294 of 1995 Page 3 of 7 objectionable item, this case was foisted against him. However, he has not tendered any evidence in support of the said plea. 5. Mr.Abhas Mohanty, learned counsel for the Appellant (accused) submitted that on the face of the evidence of the I.O. (P.W.7), who is the main witness for the prosecution when the Trial Court has acquitted the accused Shiva Kumar by not accepting the version of P.W.7 as regards his implication, the conclusion of the Trial Court that this accused Shyamsundar is liable for the recovery of said contraband from the shop is untenable. He further submitted that the evidence on record is wholly sufficient to return a finding that this accused at the relevant time of search of shop was in conscious possession of the contraband Opium and Ganja. He also submitted that the procedure adopted by P.W.7 in sending the sample for chemical examination is highly illegal and he, having drawn the samples at his level, has sent the same at his level to the Chemical Examiner giving no scope to the Court even to examine whether the sample packets were intact and without any mark of tampering then. He further submitted that when on 21.02.1995. the samples were sent for Chemical Examination by P.W.7, on 22.02.1995, the seized articles were produced in Court. He also submitted that there is absolutely no evidence with regard to the safe keeping of the said seized contraband articles including the sample packets till those CRA No.294 of 1995 Page 4 of 7 were sent to the Court and chemical analysis respectively. In view of all these above, he contended that the judgment of conviction and order of sentence, impugned in this Appeal, cannot be sustained. 6. Mr.G.N. Rout, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court, contended that the evidence of P.W.7, being clear that he had seized the contraband items from the shop of the accused and having collected the samples therefrom, had sent the same for chemical analysis merely because he has not routed the same through the Court tampering with the samples is not to be inferred more particularly when no such material in that regard has been elicited from the evidence of P.W.7 during cross-examination. He further submitted that the accused, being directly connected with the shop when the contraband has been seized from the cash box kept in the shop, the Trial Court did commit no mistake in fastening the criminal liability of upon this connection. 7. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses CRA No.294 of 1995 Page 5 of 7 (P.Ws.1 to P.W.7) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.6. 8. Admittedly, this accused Shyamasundar and his brother faced the trial for being in possession of contraband ganja of 179 grams and opium of 147 grams. It is the evidence of P.W.7 that the said shop is known as the cloth shop of this accused Shyamasundar As per the evidence of P.W.7, when he arrived at the shop, Shiva Kumar Sunar was present in the shop and he then explained him the grounds of search. He does not state that at the relevant time, this accused Shyamasundar, let us accept for the time being that the Appellant was at all present in the shop. The contraband ganja and opium are said to have been recovered from the Cash Box kept in the shop. It is not stated by P.W.7 that the Cash Box was locked and that the key was with this accused Shyamsasudnar, which being taken from him, the same was opened. Therefore, when the Trial Court has found the evidence implicating the Shiva for commission of the offence for possession of said contraband ganja and opium to be not sufficient and acceptable; the conclusion that this accused was in possession of said seized contraband ganja and opium has no base to sand upon and merely because the shop is known to be the cloth shop of this accused Shayamasundar when in his absence, the contraband of such small quantity are said to have CRA No.294 of 1995 Page 6 of 7 been recovered from the Cash Box, he cannot be attributed to be in conscious possession of the same in the absence of any evidence that such box was under his exclusive control and except him, no one had the scope to open the same and as it is not said that he when opened the contraband, was recovered by leading evidence in that regard. 9. For all the aforesaid discussion and reasons, the conclusion stands that the finding of guilt against the accused, as has been returned by the Trial Court holding this accused Shyam Sundar guilty for commission of the offence under section 18/20(1) of the N.D.P.S. Act cannot be sustained. 10. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 26th September, 1995 passed by the learned Additional Sessions Judge, Sambalpur in S.T. No.43/17/5 of 1995., are hereby set aside. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 12-Jul-2024 11:34:30 CRA No.294 of 1995 (D. Dash), Judge. Page 7 of 7