The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.257 of 2003 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 31.10.2003 passed by the learned Judge, Special Court-cum-Sessions Judge, Dhenkanal in Special Case No.74/1999 (Trial Case No.5 of 2000). ---- Naresh @ Narahari Mohanty …. Appellant Daniel -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. Sudipto Panda Advocate For Respondent - Mr.P.K. Mohanty Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 20.05.2024 : Date of Judgment :20.06.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 31.10.2003 passed by the learned Judge, Special Court-cum- CRLA No.257 of 2003 Page 1 of 10 Sessions Judge, Dhenkanal in Special Case No.74/1999 (Trial Case No.5 of 2000). The Appellant (accused) thereunder has been convicted for commission of the offence under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’) and accordingly he has been sentenced to undergo rigorous imprisonment for two (02) years and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to suffer rigorous imprisonment for six months. 2. The prosecution case, in short, is that on 24.11.1999 around 6 am, the Officer-in-Charge (OIC) Gondia Police Station (P.W.6) received reliable information regarding possession of contraband ganja by the accused in his house at village Letheka. Having entered the said fact in the Station Diary book maintained at the police station, he reported the same to the Superintendent of Police, Dhenkanal by sending a copy of the said information reduced into writing in the entry of the Station Diary. The OIC (P.W.6) then immediately with the Executive Magistrate (P.W.5) and other staff proceeded to the village. P.W.5 having ascertained the location of the house of the accused in the said village, decided to raid the house. The accused being called, came out of his house. P.W.5 then gave their identity to the accused whose identity in turn was also ascertained. Personal search of the house CRLA No.257 of 2003 Page 2 of 10 of the accused being made, it is stated that no such incriminating materials was recovered. The house of the accused was then searched. P.W.5 and others in course of search of the said house found one bag containing marked “TATA TEA” under lock and key to have been lying underneath the cot kept in the bed room of the house of the accused and smell of Ganja was emitting therefrom. It is stated that the key of the lock put on the bag was with the accused. So, he was asked to open the bag. The bag being opened, was found to contain Ganja. The contents of the bags being weighed, the weight came to be 4 (four) Kg. P.W.5 collected two parts of samples each weighing 50 grams from the contents of the said bag. The sample packets were sealed by using the brass seal of P.W.5. The brass seal was also used in sealing the bag where the residue Ganja were kept. The brass seal was then given in zima of one Kailash Mahalik (P.W.2). The articles recovered along with the sample packets were seized at the spot
Legal Reasoning
under seizure list (Ext.1/2). The plain paper FIR (Ext.6) was drawn at the spot by P.W.6. The accused was arrested and he with the seized articles and documents prepared at the spot were brought to the Police Station. A detail report (Ext.7) with regard to the search, seizure and arrest of the accused was submitted to the Superintendent of Police, Dhenkanal. At the Police Station, case was registered and then the seized articles were kept in the Malkhana of the Police Station. On the next day, that is CRLA No.257 of 2003 Page 3 of 10 25.11.1999, the accused was forwarded in custody to the Court and so also the seized articles were produced with the prayer to send the two sample packets to State Forensic science Laboratory, Rasulgarh for chemical examination under the forwarding letter (Ext.10) of the Special Court. The report received was to the effect that the samples were nothing but Ganja. 3. On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under section 20(b)(i) of the NDPS Act and the accused faced the trial being charged for committing the said offence for being in possession of 4 Kgs of Ganja. 4. The plea of the accused is that of complete denial and false implication. 5. In the trial, prosecution examined in total six (06) witnesses and has admitted several documents which have been admitted in evidence and marked Ext.1 and Ext.11. 6. The Trial Court upon examination of the evidence let in by the prosecution and their scrutiny has arrived at a conclusion that the prosecution has established its case against the accused that he was in possession of 4 kgs of Ganja on the relevant date and time of seizure. Accordingly, the accused has been convicted for CRLA No.257 of 2003 Page 4 of 10 offence under section 20(b)(i) of the NDPS Act and sentenced as aforestated. 7. Learned counsel for the Appellant (accused) first of all submitted that the prosecution evidence is highly deficient to arrive at a conclusion that the accused was in conscious possession of the bag containing ganja which was seized by P.W.6 from the house. He further submitted that in order to establish the same, P.W.6 states that the Key of the lock put on the bag was with the accused and he opened the same by using the key, but that is not receiving the corroboration from the evidence of other witnesses. He, therefore, submitted that when it is there in the evidence that besides the accused, other persons were also there residing in the house. For the recovery of the same bag, even though for a moment it is said to be containing ganja from underneath the cot kept in the bed room of the house, this accused cannot be attributed with the conscious possession of the same. In this connection, he has invited the attention to the depositions of all the prosecution witnesses in showing as to how those differ on this particular aspect and rather in contradiction of one another. He, therefore, submitted that on this ground the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. CRLA No.257 of 2003 Page 5 of 10 He next submitted that when P.W.6 has stated that he had collected two packets of samples from the contents of the said bag, the evidence as to their safe keeping is lacking. He, further submitted that the sample packets when are said to have produced before the Court, the Order sheet of the Court does not reveal that the seal put on those sample packets with the specimen impression of brass seal of P.W.6 were compared and the Order sheet also does not find mention that the seals were intact. Therefore, the possibility of tampering and meddling having not been ruled out, the Chemical Examiner’s Report is of no avail to connect to say beyond reasonable doubt that the contents of the bags were the contraband. He thus submitted that the finding of guilt against the accused as has been returned by the Trial Court is liable to be set aside on the above sole ground. 8. Learned Additional Sanding Counsel for the Respondent- State submitted all in favour of the finding of guilt against the accused that he was in possession of the accused that he was in possession of 4 kgs of Ganja on the relevant date and time of search and seizure as has been returned by the Trial Court. He submitted that the evidence of P.W.6 being quite clear that the bag in question was locked and the key was with the accused, who opened the lock by using the key which was with him, the conscious possession of the contents of the bag which have been found to be Ganja has been rightly held to be resting with the CRLA No.257 of 2003 Page 6 of 10 accused and he having not led any evidence to repel the same or create any doubt in the mind on that score by leading evidence or otherwise, the finding of guilt of the accused has to be held to be well in order. He next submitted that when the Court has forwarded the sample packet to the chemical examiner, finding the seals on the sample packets to have not been tampered with when the Court has sent it more non writing of anything to that effect in the order sheet as the evidence remains that the sample packets were kept in the P.S. Malkhana and then produced before the Court, the report of the chemical examiner when proves that the contents of the bag were nothing but Ganja, that can be presses into service. 9. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction and order of sentence which have been impugned in this Appeal. I have also gone through the depositions of P.W.1 to P.W.6 as also the documents which have been admitted in evidence and marked Ext.1 to Ext.11. 10. Addressing the rival submission and thereby judging the sustainability of finding of guilt against the accused as has been returned by the Trial Court, let us proceed to examine the evidence of P.W.6 first as he is the head of the raiding party. P.W.6 has stated that a bag was recovered from underneath the CRLA No.257 of 2003 Page 7 of 10 cot of the bed room of the house of the accused and that bag was emitting the smell of ganja. He has stated that the bed room was that of the accused. His further evidence is that the bag was locked and the key of the lock put on the bag was with the accused, who opened. As per his evidence, the house was
Legal Reasoning
consisting of five rooms. When none of the independent witnesses have supported the prosecution case, P.W.4, the ASI, who had accompanied P.W.3 has stated that from the room of the accused, one plastic bag containing Ganja was recovered. The evidence of P.W.6 is that it was in the bed room of the accused and the bag was kept underneath the cot kept in the said bed room. This is not stated by P.W.3 and P.W.4. P.W.6 having stated that the bag was having a mark “TATA TEA”, P.W.4 does not say so. P.W.4 of course states that the bag was locked and the accused opened the bag. But he does not state that the key of the lock was with the accused and he using that key opened the bag or he brought the key from somewhere else. Next comes the evidence of Executive Magistrate (P.W.5). His evidence is that, during search one Gunny bag having chain system was recovered from underneath the cot and that bag was locked and the bag was having the mark “TATA TEA”. When he says that on being asked, the accused opened the lock, he is silent as to wherefrom the key of the lock came; Whether it was with the accused, who brought out and opened or not. The CRLA No.257 of 2003 Page 8 of 10 prosecution has when produced the seized bag and sample packets during the trial, the lock and key have not been produced for being marked as Material Object, which creates doubt in the mind. Moreover, P.W.6 does not state in his evidence that while forwarding the accused and the seized articles, the lock and key were also produced before the Court. So the evidence of these witnesses that the bag was locked and the accused opened the bag by using the keys which was with him appear to be shaky. With such evidence of the prosecution, it would thus not be safe to conclude that it was the accused, who was in control of the key of the lock put on the bag so that in that way, he can be attributed with the possession of the bag containing the contents therein. 11. As already stated, the evidence of P.W.6 is that the house was consisting of five rooms. His further evidence is that he has not examined any other witnesses as to ascertain that who elsewhere were residing in that house. The mother of the accused having been examined by P.W.6; she in her statement has stated as to who were residing in the room but she has not been examined during trial nor any explanation has been offered on that score. The independent witness (P.W.1) has stated that the accused has four other brothers. P.Ws.4, 5 & 6 have not stated anything more to show that the said room was in occupation of this accused and it was not being occupied by any of his brothers. That apart, as per the evidence discussed, the place of keeping of CRLA No.257 of 2003 Page 9 of 10 the bag in the room is not consistent; when as already stated by discussion of evidence as above, that fact that the key of the bag was with the accused and he opened the same is not established beyond reasonable doubt. For all the aforesaid discussion of evidence and reasons even if it is said for a moment that the seized bag was containing contraband ganja, it cannot be said that the prosecution has established the conscious possession of the said bag containing Ganja, to be resting with the accused. Thus the prosecution is not found to have established the conscious possession of the said bag containing Ganja to be resting with the accused. It having been so held the second limb of submission of the learned counsel for the Appellant (accused) is not felt necessary to be further addressed. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 31.10.2003 passed by the learned Judge, Special Court-cum-Sessions Judge, Dhenkanal in Special Case No.74/1999 (Trial Case No.5 of 2000) are hereby set aside. (D. Dash), Judge Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 01-Jul-2024 18:04:13 Gitanjali CRLA No.257 of 2003 Page 10 of 10