Insufficiency of evidence to prove guilt beyond reasonable doubt and lack of empowerment of the S.I. of Excise to conduct the raid.

JUDGMENT :

R.N. Biswal, J. - The State of Orissa calls in question, the judgment and order dtd. 7.3.1992 passed by the Sessions Judge, Sundargarh in ST. No. 144/1991 acquitting the accused-Respondent of the offence u/s 20(b)(i) of N.D.P.S. Act.

2. The prosecution case lies in a short compass. On 30.1.1991 at about 7.30 A.M., the S.I. of Excise, Rajgangpur (P.W.3), receiving reliable information that the accused-Respondent had kept Ganja without being backed by any authority, raided his house and recovered a bag containing Ganja. On weighment the same came to 950 gms. The S.I. took two samples thereof and sent one such sample though Court to State Forensic Science Laboratory, Rasulgarh for chemical examination. On chemical examination, the chemical examiner confirmed the sample to be Ganja. After completion of inquiry, the S.I. submitted P.R. u/s 20(b)(i) of N.D.P.S. Act. Since the accused-Respondent denied the charge, he faced the trial. In order to establish its case prosecution examined three witnesses in all; of whom P.W.1 and 2 are said to be two independent seizure witnesses and P.W.3 is the Excise Constable who helped the S.I. in the raid. Defence did not prefer to examine any witness. After assessing the evidence on record, the trial Court acquitted the accused holding that the S.I. of Excise was not empowered during the relevant time to conduct raid under N.D.P.S. Act and that the recovery of Ganja from the house of accused-Respondent could not be proved beyond reasonable doubt. The State of Orissa has preferred the present appeal against the said judgment and order of acquittal.

3. Learned Addl. Govt. Advocate submits that the findings of the trial Court that the S.I. of Excise was not empowered during the relevant time to raid any house in connection with any offence under the N.D.P.S. Act is wrong since in the notification of the year 1980, the Sub-Inspectors of Excise were empowered to conduct such raid. Learned Counsel appearing for the accused-Respondent (hereinafter referred as Respondent only) fairly conceded to it. So, the finding of the trial Court that the S.I. of Excise, Rajgangpur had no power to conduct any raid in connection with any offence under N.D.P.S. Act is not correct. As regards the second point of acquittal, Mr. Swain, learned Addl. Govt. Advocate submits that the chemical examination report shows that the sample was confirmed to be Ganja. Even though, it has not been marked Exhibit, because of non-examination of the S.I. of Excise or any other competent Officer, its authenticity cannot be doubted. He further submits that, admittedly, P.Ws. 1 & 2 said to be two independent seizure witnesses turned hostile to the prosecution, but P.W.3 has categorically deposed about the manner in which the house of the Respondent was raided by the S.I. of Excise of Rajgangpur, with the help of his staff, including P.W.3 himself and the Ganja in question was recovered. So the trial Court ought not have acquitted the Respondent. Per contra learned Counsel for the Respondent supported the impugned judgment.

4. The offence u/s 20(b)(i) of N.D.P.S. Act is punishable with imprisonment of 10 years and fine which may extend to Rs. 1 lakh. Graver the offence stronger should be the evidence. In the present case, the prosecution ought to have examined the S.I. of Excise, who made search and seizure. But he has not been examined. It transpires from the evidence of P.W.3 that a cloth bag containing 950 gms. of Ganja was recovered from the house of Respondent, samples were drawn in two packets, thereafter the Ganja was seized, but there is no evidence as to how could he know the quantum of Ganja recovered. His evidence is conspicuously silent with regard to weighment of Ganja said to have been seized from the house of Respondent and the quantum of sample drawn there from. During cross-examination, P.W.3 failed to tell about the ownership of the house wherefrom Ganja was alleged to have been recovered and seized. No Amin or any su