IMPORTANT POINT
For the non-compliance of section 42(2) of the N.D.P.S. Act, the prosecution case relating to fairness in the process of recovery becomes doubtful.

JUDGMENT

S.K. Sahoo, J.—The appellant Haren Mandal faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Nabarangpur in C.T. No. 86 of 2007 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 09.11.2007 he was found in unlawful possession and transportation of Ganja (cannabis) weighing 36 kg. in Majhiguda forest footway.

The learned trial Court vide impugned judgment and order dated 17.02.2011 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.1,25,000/- (rupees one lakh twenty five though), in default, to undergo further rigorous imprisonment for period of three years.

2. The prosecution case, in short, is that on 09.11.2007 at about 4.00 p.m. while P.W.4 Dillip Kumar Gouda, S.I. of Excise, Umerkote was performing patrolling duty along with his staff near village Majhiguda under Umarkote police station, at that time, he received information through reliable sources that one man was illegally transporting contraband ganja on the forest footway of village Majhiguda. On receipt of such information, P.W.4 immediately took down the information in writing and sent it to his superior officer, i.e., Excise Superintendent, Nabarangpur vide Ext.3 and then proceeded to Majhiguda jungle. While P.W.4 and the other excise staff were concealing themselves in the jungle awaiting arrival of that man, they found the appellant was coming on that way carrying two gunny bags in a ‘bahungi’. The appellant was stopped by the excise officials and P.W.4 gave his identity before him and also told him the reasons for obstructing him. At that time, P.W.1 Sankar Das was passing by that road and he was called to the place where the appellant was detained. Suspecting that the gunny bags were containing contraband ganja, P.W.4 expressed his intention to search the appellant as well as the gunny bags which he was carrying and gave the option of search to the appellant in presence of the Executive Magistrate. After disclosing his name, the appellant gave his option to be searched by an Executive Magistrate. On the basis of the written option (Ext.4) given by the appellant, P.W.4 deputed a constable to the Tahasildar, Umerkote with a written requisition (Ext.5) to come to the spot and to assist in the search. The Tahasildar (P.W.3) reached at the spot at 6.00 p.m. and he took the personal search of P.W.4 and other excise staff and in his presence, the gunny bags carried by the appellant were opened. P.W.4 tested the contents of the gunny bags by rubbing it in his own hand and he came to know that the articles found inside the gunny bags were nothing but ganja. The ganja was weighed which was found to be 36 kg. and each gunny bag was containing 18 kg. of ganja. P.W.4 collected 50 grams of ganja from each of the gunny bags towards sample and divided it into four packets and each of the sample packets were sealed properly with the personal brass seal of P.W.4, on which P.W.3 and other witnesses signed. The residual ganja in the gunny bags were also sealed in presence of the witnesses and the Executive Magistrate (P.W.3). P.W.4 prepared the seizure list (Ext.1) and a copy of the seizure list was handed over to the appellant, in token of receipt of which the appellant put his L.T.I. on the back of the seizure list. The brass seal of P.W.4 with which gunny bags and sample packets were sealed, was handed over to P.W.3 under zimanama (Ext.2). The appellant was arrested on 09.11.2007 and he was produced before the learned Special Judge, Nabarangpur on 10.11.2007 in the residential office, as it was a holiday. P.W.4 investigated the case and on 11.11.2007 he visited the spot, recorded the statements of witnesses. On 13.11.2007 he took the seized articles again to be produced before the learned Special Judge, Nabarangpur, but si