The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.78 of 1994 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Niranjan Basantia ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Mr. Debi Prasad Pattnaik, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 05.08.2025 :: Date of Judgment: 09.09.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant- Niranjan Basantia under Section 374 of the Cr. P.C., is directed against the judgment and order dated 05.02.1994 passed by the learned Additional Sessions Judge, Kendrapara in S.T. Case No.405/41 of 1992, whereby the present appellant has been convicted for the offence under Section 20(b) of the N.D.P.S. Act and on that count, he was sentenced to undergo R.I. for three years and to pay a fine of Rs.30,000/-, in default of payment of fine, to undergo further R.I. for nine months. 2. Heard Mr. Debi Prasad Pattnaik, learned counsel for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case in terse and brief is that on 20.08.1992, when the excise staff were performing patrolling duty at Duhuria bus stand area, the accused-appellant was going with a bag in his hand and the suspicion grew of the S.I. of excise. At that time, a cyclist passing by, was also approached to be a witness to the transaction of seizure. Thereafter, out of suspicion, the accused was detained and the bag was searched in the presence of the witnesses. On being searched, they found 1kg.500 grams of contraband ganja to be inside the bag and seizure of the 1.500 grams of ganja was effected. Thereafter, the Excise Officer took sample of 50 grams of ganja in two packets in presence of the witnesses and 1.400 grams of ganja was deposited in the court. The sample packets were also sent for chemical examination. The accused Page 2 of 8 was arrested on the spot and produced in the Court. After completion of investigation, the Excise Officer submitted the P.R. to stand for trial by the appellant. 4. The prosecution in order to bring home charges examined as many as four witnesses. Out of whom, P.W.1 was the Excise Constable, who deposed about the seizure of the ganja from the possession of the appellant. P.W.2 was a cyclist, who said to be an independent witness to the seizure. P.W.3 was the Excise Sub-Inspector, who submitted the prosecution report and P.W.4 was another Sub-Inspector of Excise, who stated to have seized the contraband Ganja from the possession of the appellant. Two witnesses were also examined in support of the defence plea. 5. The learned trial Court by taking into consideration the entire evidence brought on record particularly the evidence of P.W.1, P.W.4 and the official witnesses came to the following conclusion:- “7. P.Ws.1 and 4 have absolutely corroborated each other that the accused was apprehended near the country liquor shop and P.W.2 was going on cycle at the spur of the moment and was requested by P.W.4 to get down to be a witness and accordingly P.W.2 Page 3 of 8 was a witness to the search and seizure, put his signature in the seizure list, in the paper seal affixed on mouth of the bag and that P.W.4 extracted 100 grams of ganja from the original containor to be send as a sample for analysis. Ext.3 and 4 have corroborated that part of the transaction transacted by P.W.4. The only difference available in the evidence of P.W.1 and P.W.4 is that in the evidence of P.W.1 and 4 Ganja was wrapped in the polythin bag and the ganja containing polythene bag was kept inside a cloth bag. Both have admitted that the seizure list found mention that the ganja was kept in an old cloth bag and ganja containing cloth bag had been kept in a polythin bag. The occurrence is 20.8.92. P.W.1 has been examined on Feb. 1993 and P.W.4 has examined on May, 1993. The human mind is not same to recapitulate all details. The evidence of P.W.1 has not been shaked to disbelieve them that there is shifting stand as regards the place of occurrence. They have remained consistent that the place of occurrence is near the country liquor shop and that the accused was going with 1 K.G. 500 grams of N.D.P.S. ganja. That this is N.D.P.S. ganja was further remain fortified by Ext.4.” 6. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Kendrapara, the present appeal has been preferred by the appellant. 7. I have carefully gone through the evidence brought on record. The case of the prosecution hinges upon the testimony of P.W.1, one Excise Page 4 of 8 Constable, who accompanied P.W.4 at the time of seizure and arrested the accused. The sole independent witness to the seizure i.e. P.W.2 did not support the prosecution. In his testimony, he has stated as under:- “I do not know the accused standing in the dock. About six months back near the country/liquor shop of Duhuria at about 4 P.M. I was going to Jamdhar. The excise staff called me. I found a bag in the hand of the constable (excise). At and near the country liquor shop excise babu asked me to be a witness. Initially I objected not to be a witness since I had not seen the actual seizure of ganja. By then Ext.1 was half written. On persuation of S.I. of excise to me I put my signature in Ext.1. Ext.1/2 is my signature.” 8. The said witness has been declared hostile and subjected to cross- examination by the prosecutor but nothing could be elucidated from his evidence. Similarly, in the instant case, there is evidence coming forth on record to suggest that the seized contraband ganja was not weighed in presence of any witness. Therefore, the evidence of P.W2 i.e. 1 kg. 500 grams was seized from the possession of the appellant creates a serious doubt in absence of weighing of the seized contraband ganja. It is also apparent that in the instant case, the seizure of contraband ganja from the appellant is proved beyond all reasonable doubt. In the cross- Page 5 of 8 examination, the said witness (P.W.2) has also stated that “it is not a fact that excise babu seized ganja (N.D.P.S. ganja) weighing 1 kg 500 grams in my presence from the accused. It is not a fact that excise babu extracted 100 grams of ganja therefrom and divided the extracted 100 grams in my presence.” He further deposed that when the accused being escorted by Excise Constable from Duhuria bus stop side, another man was also with the accused and the Constable. When the Court posed a question to the said witness, he retorted saying “I cannot name the other person behind the accused. The excise babu was sitting in the country liquor shop. I cannot name the excise S.I.” 9. From the evidence of the said witness, it is apparent that along with the appellant, there was another person from whom the alleged contraband appears to have been seized, which is not clearly coming forth on record. 10. P.W.4, the I.O. of the case, in his testimony has stated that he has put the ganja inside the polythin bag. Again put the polythin bag inside a cloth bag and affixed paper seal on the mouth of the bag and took the same in his custody and kept the packet with him over night. He further Page 6 of 8 deposed that he arrested the accused-appellant on the spot and forwarded him to court on the next day, since it was a holiday and deposited the seized ganja on the next day including both the packets with a prayer to send the sample packet for chemical analysis. The learned S.D.J.M. opened one of the sample packets, saw the ganja inside and repacked the sample ganja of 50 grams with court seal and forwarded the same for testing on the laboratory. Therefore, it is evident that the seized ganja remained in possession of P.W.4 for more than one day. In his cross- examination, the I.O. has deposed as under:- “……. The seized articles were kept with me till the same was submitted to the court. On the next date of seizure, seized articles were produced in the court. The seized materials were sent for chemical examination on the same day of its production through the court. I had not further maintained any case diary. I have recorded the statement of witnesses. I have not send the statements to the court. The Court is 2 K.M. from my office. For the absence of the O.I.C. or his in charge, I could not deposit the seized ganja in the P.S. On 21.8.92 I sent the copy of P.R. to superintendent of Excise as a recourse of information to the higher authority. I have not mentioned in the P.R. or the seizure list that I have sent the copy to the higher authority..…..” Page 7 of 8 11. The appreciation of evidence by the learned trial Court appears to have missed the aforementioned glaring infirmities namely not weighing the ganja to ascertain the quantity, seizure of the ganja could not be proved by the prosecution, the only independent witness P.W.2 to the seizure has not supported the prosecution and admittedly, the I.O. has kept the seized articles with him for more than a day etc. 12. In view of the aforementioned, I am not inclined to accept the findings recorded by the learned trial Court. Accordingly, it is held that the prosecution could not prove the case beyond all reasonable doubts. Hence, by extending the benefit of doubt, the appellant is acquitted of all the charges under Section 20(b) of the N.D.P.S. Act. The bail bond furnished stands discharged.
Decision
13. Accordingly, the CRA is allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 09th September, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 15-Sep-2025 13:17:44 Page 8 of 8