The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 110 of 1993 From the order dated 31.03.1993 passed by Sri P.C. Pathy, 1st Addl. Sessions Judge, Cuttack convicting the appellant U/s. 20(b)(i) of the NDPS Act. Dhruba Charan Das & another ...… Appellants --------------- -Versus- State of Odisha ...…. Respondent Advocate(s) appeared in this case :- _______________________________________________________ For Appellants : M/s. D.R. Bhokta (Amicus Curiae). For Respondent : Mr. S.K. Mishra, _______________________________________________________ CORAM: [Addl. Standing Counsel]
Legal Reasoning
MR. JUSTICE SASHIKANTA MISHRA JUDGMENT 24.08.2023 SASHIKANTA MISHRA, J. The present appeal is directed against the judgment of conviction and sentence passed by learned 1st Additional Sessions Judge, Cuttack on 31.03.1993 in convicting the appellant under Section 20(b)(i) of the NDPS Act and in sentencing him to undergo R.I. for one year and fine of Rs. 2000/-, in default, to undergo R.I. for Page 1 of 9 six months and further to undergo R.I. for six months and to pay fine of Rs.500/-, in default, to undergo R.I. for one month more under Section 47-A of Bihar and Orissa Excise Act. Both the sentences as above were directed to run concurrently. 2. Be it noted that during pendency of the appeal, the appellant No.2-Bhimsen Rout expired for which the case against him stood abated. 3. The prosecution case, briefly stated is that on 10.03.1990 while the S.I. of Excise, Mobile Squad, Cuttack was performing patrolling duty at about 7.00 A.M. at Machhua Bazar, Cuttack, he saw the present appellant and the co-accused moving in a TVS Moped with a bag hanging on the rod joining the handle of the moped. On suspicion, the S.I. detained them but they tried to escape. A little while later however, the Excise staff managed to apprehend the accused persons. On search, the bag was found to contain a paper packet which in turn, contained one kilogram of semi dried ganja and another packet containing one kilogram of non-duty paid Bhang. The contraband were thus seized after observing Page 2 of 9 the necessary formalities and the accused persons were arrested. Both the accused persons along with the seized articles were produced before the learned S.D.J.M., Cuttack from where samples were drawn and sent for testing to the State Drugs Control and Research Laboratory, Bhubaneswar. 4. The defence plea was of denial. 5. To prove its case prosecution examined three witnesses of whom P.W.1 is the Informant and I.O.. P.W. 2 is a seizure witness. P.W.3 is also a seizure witness. Besides, prosecution also proved some documents marked Exhibits 1 to 9 and material objects marked MOs. I to III. 6. After appreciating the evidence on record, the trial court found both the offences clearly proved and therefore, convicted the accused persons and sentenced them as aforesaid. 7. Heard Mr. D.R. Bhokta, learned Amicus Curie and Mr. S.K. Mishra, learned Additional Standing Counsel for the State. 8. Mr. Bhokta would argue that the mandatory provisions of the N.D.P.S. Act have not been followed in Page 3 of 9 the case inasmuch as the sample drawn from the bulk contraband was produced before the learned S.D.J.M. on 16.03.1990 and on the same day, the S.D.J.M. passed order for its chemical examination. But, the sample packets were produced before the Scientific Officer on the next day, i.e., on 17.03.1990. This raises a question as to where the seized contraband was kept in between 16th and 17th. This, according to Mr. Bhokta renders the prosecution case doubtful, the benefit of which should go to the accused. 9. Mr. S.K. Mishra, on the other hand, has argued that the ground raised by learned Amicus Curie cannot be accepted for the reason that all necessary formalities prescribed in the statute were duly followed right from the time of apprehension of the accused persons till their production before the learned S.D.J.M. along with the seized contraband. There is therefore, no illegality or infirmity in the impugned judgment so as to persuade this Court to interfere. 10. In order to appreciate the ground raised by learned Amicus Curie, this Court has scanned the evidence on Page 4 of 9 record independently. Since no question has been raised as regards the search of the accused persons at the spot and the seizure of contraband articles, it is not necessary to dwell upon the evidence of the informant/IO in detail. Having regard to the specific ground raised by the Amicus Curie as referred above, the testimony of P.W.1 is relevant to such extent. The following statement made by P.W.1 is noteworthy. “Then I arrested the accused persons and forwarded them to the Court on the same day, i.e., 10.03.1990 along with the seized articles, along with a forwarding report and with a prayer to the S.D.J.M., Cuttack to send the samples for chemical examination. Ext.2 is the forwarding letter and Ext.3/ is the prayer for sending the seized Ganja and Bhang for chemical examination. The samples were sent I for chemical examination no 16.03.90. obtained the receipt from the Junior Scientific Officer Ext.4 is the forwarding letter of the S.D.J.M. Ext.5 is the receipt obtained from the Scientific Officer. The chemical examination report was received by the Court which is marked Ext.6. The opinion of the chemical examination was that the sample of Ganja was considered to be Ganja cannabis and the sample of Bhang was considered to be Bhang.” The other witnesses have also more or less supported the prosecution case as regards search and seizure of the contraband at the spot. The trial Court also noted that the Page 5 of 9 seized contraband as well as the sample packets were produced before the learned S.D.J.M. in a sealed condition whereupon learned S.D.J.M. verified the seals and the sample packets were sent for chemical examination containing the seal of the S.D.J.M. Ext.3 is the request made by P.W.1 before the learned S.D.J.M. for passing necessary orders for sending the samples drawn for chemical analysis. Ext.4 is the letter requesting the Scientific Officer to examine the samples and to opine whether they are ganja and Bhang or not. Ext.5 is the receipt issued by the Junior Scientific Officer, showing the receipt of one “sealed cloth packet” containing the sample packets. Ext.6 is the chemical examination report. From the above narration, it is clear that the contraband was seized at the spot and samples were drawn therefrom. The bag containing the contraband articles were sealed at the spot and so also the sample packets. Both the sample packets were produced before the learned S.D.J.M., who was satisfied as regards the seal already affixed thereon and passed orders for sending the same for chemical examination after affixing his own seal. Most importantly, Page 6 of 9 the Junior Scientific Officer also found the seal intact as evident from Ext.5. Thus, it can be easily held that the very same article which was recovered from the possession of the accused persons at the spot was sealed and so also the samples drawn therefrom. Further, the very same samples were produced before the Scientific Officer for chemical examination. It is true that learned S.D.J.M. appears to have passed order in this regard on 16.03.1990 and the samples were received by the Junior Scientific Officer on the next day, i.e., 17.03.1990 but on the face of clear evidence that the seals were intact, it cannot be straightway presumed or held that the sample packets had been tampered with. For the above reasons therefore, the argument advanced by learned Amicus Curie cannot be accepted. This Court finds that the trial court has scanned the evidence on record meticulously and has considered all the grounds raised by the accused persons. In view of what has been said hereinbefore, this Court finds hardly any reason to interfere with the findings of the trial court. Page 7 of 9 11. Mr. Bhokta, the Amicus Curie has made an alternative submission that the offence was committed more than thirty years back when the appellant was aged about twenty five years. Presently, he is aged more than fifty five years and no other criminal activity shown against him. Under such circumstances, it would be too harsh to send the appellant to prison at this distance of time. In response, Mr. S.K. Mishra learned State Counsel submits that the offence having been proved beyond reasonable doubt and the convict having been visited with minimum punishment, the sentence need not being interfered with. This Court is however of the view that the occurrence took place more than three decades ago. The appellant appears to have spent some time in prison during trial and thus, understood the rigors of law. Therefore, ends of justice would be best served if, instead of sending the petitioner to jail to serve the remaining part of his sentence, the same is confined to the period of detention already undergone by him. Page 8 of 9 12. For the forgoing reasons therefore, the appeal is allowed in part. The impugned judgment of conviction is confirmed but the sentence is modified to the extent that the same shall be confined to the period of imprisonment already undergone by the appellant. Before parting, this Court records its appreciation for the able assistance rendered by Mr. D.R. Bhokta, the Amicus Curie. His professional fee is fixed at Rs.10,000/- . (Sashikanta Mishra) Judge B.C. Tudu, Sr. Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-Aug-2023 18:35:49 Page 9 of 9