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2017 Supreme(Ori) 695
IN THE HIGH COURT OF ORISSA, CUTTACK
SATRUGHANA PUJAHARI, J.
Sijo V.G. and another – Appellants
Versus
State of Orissa – Respondent
CRLA NO. 496 OF 2009
Decided On : 10-05-2017
For the Appellants :Mr. S.K. Das, Advocate
For the Respondent:Mr. P. Pattnaik, Additional Government Advocate
Headnote:1. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - Sec. 20 (b) (ii) (C) - Conviction under - Appeal - Discussing the facts, contention and evidences held, the evidence adduced by the official witnesses with regard to search and seizure of 'Ganja' from the personal possession of each of the individual appellants as well as from a hut near the spot being not free from blemish, so also there being no evidence with regard to safe custody of the so called ' Ganja' stated to have been seized from the possession of the appellants to rule out the possibility of meddling of the articles seized before drawal of representative samples for chemical examination, the appellants could not have been made liable for possession of 'Ganja' of more than the commercial quantity violating the provisions of Sec. 8 (c) of the Act punishable u/s. 20 (b) (ii) (C) of the Act . (Para - 15).
2. EVIDENCE ACT, 1872 - Sec. 134 - No particular number of witnesses shall in any case be required for the proof of any fact - Section does not make any distinction with regard to version of official witnesses and other witnesses - Even if the version of the independent witness to seizure does not support the case of seizure if the version of the official witnesses making the seizure is worthy of credence and suffers from no infirmity, there is no impediment in law to place reliance on such evidence to accept the seizure.
The law with regard to appreciation of the version of official witnesses is that their testimonies are required to be scrutinized fairly and dispassionately like the other witnesses in order to find out whether the same inspire confidence and can be safely relied upon. On such scrutiny, if no infirmity is found in the version, there is no impediment to make the foundation of conviction and record a conviction on the same even if not corroborated by any other independent witness. In view of the aforesaid, contention advanced by the learned counsel for the appellant that since the version of the official witnesses are not supported the independent witness, such version of the official witnesses to incriminate the appellant requires outright rejection, is unacceptable. (Para- 5)
3. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - The very Excise Officer who appears to have effected the seizure from the possession of the appellants, investigated the case, practice of investigation being conducted by the same officer who happens to be an ocular eye witness has been looked to disfavour by the Courts - When the same officer who claims to have made the search and seizure also investigates the case, his evidence is required to be looked with great care and caution. (Para - 7)
4. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - The term 'possession' may have different meanings in different context and it need not be actual, physical or personal possession but it includes physical control over the articles in question - Further stated.
Possession' need not be physical possession but can be constructive, having power and control over the article in question. Constructive possession in law applies to a person having knowledge of an article plus the ability to control such object, even if he has no physical contact with it. Possession is not the same as ownership and there are distinctions between the two. An owner of an object may not always physically possess the object. Even though another person is having actual physical possession of articles but if the accused has the power or control over such articles and the other person having physical possession of the articles is merely acting as per the direction / instruction of the accused and has no independent choice of taking any decision in respect of disposal of such articles then also it can be said that the accused is having possession or control of the articles. (Para - 10)
JUDGMENT :
S. PUJAHARI, J.
1. The appellants in this appeal call in question the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in C.T. No.39 of 2007 holding the appellants guilty of charge under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentencing each of them to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo R.I. for a further period of one year each.
2. The case of the prosecution is that on 16.01.2007, P.W.6, Ashok Kumar Seth, the S.I. of Excise (District Mobile) while patrolling near Spillway of Chitrakonda, Malkangiri received reliable information regarding illegal cultivation and possession of ‘Ganja’ by some culprits. To verify the information, P.W.6 accompanied with Superintendent of Excise in-charge-cum-Tahasildar, Chitrakonda, Radhaballav Patnaik (P.W.5), Constable of Excise – Nilamadhab Choudhury (P.W.3) and with other staff rushed to the spot where they noticed from a distance the appellants attempting to conceal their respective bags. P.W.6 as such proceeded to the spot and detained the appellants. He also found “Hem plants” cultivated in a nearby area encircled by fence with a hut inside. On demand, the appellants could not produce any authority for possessing ‘Ganja’ in those two bags and also could not produce any authority or licence for such cultivation. P.W.6 also found a bag containing ‘Ganja’ staked in that hut. He uprooted and counted the plants which comes to 30 Kgs. P.W.6 took weighment of seized bags and found the bag possessed by the appellant no.1 contained 23 Kgs., bag possessed by the appellant no.2 contained 24 Kgs. and bag recovered from that hut contained 30 Kgs. of ‘Ganja’. P.W.6 prepared seizure list in presence of Superintendent of Excise-in-charge-cum-Tahasildar, Malkangiri (P.W.5) and prepared seizure list (Ext.2). He also drew samples from each bags and sealed the sample packets and bulk ‘Ganja’ and “Hem plants” at the spot. Subsequently, the appellants and the seized articles were forwarded to the Court. P.W.6 also conducted investigation of the case and on completion thereof he placed prosecution report against the appellants for alleged commission of offence under Section 20(a)(i) and 20(b)(ii)(C) of the Act. The appellants being charged for the aforesaid offence and having pleaded not guilty, faced trial before the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri where they examined one witness in support of their defence of false implication. On conclusion of the trial, placing absolute reliance on the evidence of the official witnesses, the trial court held the prosecution to have established the charge against the appellants and returned the judgment of conviction and order of sentence, as stated earlier.
3. It has been submitted by the learned counsel for the appellants that in this case since the version of the prosecution witnesses against the appellants was not corroborated by any independent witnesses to search and seizure who said to have witnessed the seizure and when there is nothing on record to show that what was seized from the possession of the appellants were actually examined by the chemical examiner, the judgment of conviction and order of sentence recorded on the evidence of official witnesses are indefensible.
4. Repelling such contention, the learned counsel for the State has defended the impugned judgment of the trial court to be just and proper inasmuch as there is no impediment in law to record conviction basing on the testimony of the official witnesses, particularly when the same suffers from infirmity. According to him, since in this case the evidence of the official witnesses are clear and cogent with regard to seizure of contraband articles from the possession of the appellants and when there was also no material brought on record to suggest that P.Ws.3, 5 and 6 had any reason to
