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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Herasha Majhi @ Hiresa Majhi and Another - Appellants
Versus
State of Odisha - Respondent
Criminal Appeal No. 489 of 2014
Decided On : 22-10-2019
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20(B)(II)(C) - POSSESSION OF CONTRABAND GANJA - EVIDENCE - SAFE CUSTODY OF SEIZED ARTICLES - COMPLIANCE WITH SECTION 57 - OWNERSHIP OF VEHICLE - BENEFIT OF DOUBT.
Fact of the Case:
The appellants were found in possession of 10 kgs. 640 grams and 13 kgs. 860 grams of contraband ganja in two bags for selling purpose at Berhampur. The trial Court convicted the appellants under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh only) each, in default, to undergo further rigorous imprisonment for a period of one year each.
Finding of the Court:
The Court found that the evidence of the official witnesses was reliable and trustworthy and that the appellants had confessed to the police that they were taking the gunny bags containing ganja for sale at Berhampur. However, the Court also found that the confessional statements of the appellants before the Executive Magistrate were not admissible in evidence as they were not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure (CrPC). The Court further found that the prosecution had failed to prove the safe custody of the seized articles before their production in Court, that the Malkhana register or its extract had not been produced during trial, and that there was no satisfactory compliance with the provisions of section 57 of the NDPS Act.
Issues: 1. Whether the evidence of the official witnesses was reliable and trustworthy? 2. Whether the confessional statements of the appellants before the Executive Magistrate were admissible in evidence? 3. Whether the prosecution had proved the safe custody of the seized articles before their production in Court? 4. Whether the Malkhana register or its extract had been produced during trial? 5. Whether there was satisfactory compliance with the provisions of section 57 of the NDPS Act? 6. Whether the appellants were entitled to the benefit of doubt?
Ratio Decidendi: 1. The Court held that the evidence of the official witnesses was reliable and trustworthy and that the appellants had confessed to the police that they were taking the gunny bags containing ganja for sale at Berhampur. 2. The Court held that the confessional statements of the appellants before the Executive Magistrate were not admissible in evidence as they were not recorded in the manner prescribed by section 164 of the CrPC. 3. The Court held that the prosecution had failed to prove the safe custody of the seized articles before their production in Court. 4. The Court held that the Malkhana register or its extract had not been produced during trial. 5. The Court held that there was no satisfactory compliance with the provisions of section 57 of the NDPS Act. 6. The Court held that the appellants were entitled to the benefit of doubt.
Final Decision: The Court allowed the appeal, acquitted the appellants of the charge under section 20(b)(ii)(C) of the NDPS Act, and ordered their release from jail custody.
JUDGMENT :
S.K. Sahoo, J.
The appellants Herasha Majhi @ Hiresa Majhi and Jejanga Majhi faced trial in the Court of learned Sessions Judge-cum-Special Judge, Rayagada in C.T. Case No. 08 of 2011 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 06.02.2011 at about 5.00 a.m. in front of Kenduguda outpost under Padmapur police station in the district of Rayagada, they were found in possession of contraband ganja weighing 10 kgs. 640 grams and 13 kgs. 860 grams in two bags for selling purpose at Berhampur.
2. The prosecution case, as per the first information report lodged by Alekha Chandra Dalei (P.W.2), S.I. of Police, Kenduguda outpost, in short, is that on 05.02.2011 at about 9.00 p.m. some of the police officials of Kenduguda police outpost and CRPF personnel were performing blocking and area domination duty in front of Kenduguda outpost road. At about 5.00 a.m. on 06.02.2011, they found two persons coming from Sardhapur side in a Hero Honda Splendor motorcycle bearing registration no.OR-07-F-3000. The informant and his team stopped the motorcycle and found the pillion rider was carrying a jerry bag and another jerry bag was loaded on the carrier of the motorcycle and acute smell of ganja was coming from both the jerry bags. The informant suspected that the jerry bags might be containing ganja. On being confronted by the informant, the rider of the motorcycle identified himself as Herasha Majhi (appellant no.1) and the pillion rider identified himself as Jejanga Majhi (appellant no.2). Both the appellants confessed that they were transporting ganja for sale at Berhampur. After giving his identity, the informant offered the appellants with the option of being searched by a Gazetted Officer or in presence of an Executive Magistrate. The appellants opted in writing that they wanted to be searched in presence of an Executive Magistrate. The informant sent intimation about the detention of the appellants with jerry bags to his official superior over phone and also sent requisition of the Sub-Collector, Gunupur for deputation of an Executive Magistrate to remain present at the spot during search and seizure and the appellants were detained. Khirabdhi Behera (P.W.12), Tahasildar, Padmapur arrived at the spot on 06.02.2011 at about 01.00 p.m. as per the order of A.D.M., Rayagada and after giving his personal search before the appellants as well as taking the personal search of other witnesses, in their presence, the appellants were searched and the contraband ganja found in the two bags were weighed by weighman Jitendra Mohapatra (P.W.7) and net quantity of ganja found in one bag was 10 kgs. 640 grams and in the other bag, it was 13 kgs. 860 grams and accordingly, a weighment chart was prepared. From each of the bag, sample ganja of 50 gms. in duplicate was collected in two packets after homogenous mixture separately. The sample packets collected from the jerry bag containing 10 kgs. 640 grams were marked as A-1 and A-2 and the sample packets collected from the jerry bag containing 13 kgs. 860 grams were marked as B-1 and B-2 respectively. The sample packets so collected were sealed with wax and personal seal impression of the informant was put on it and similarly the bulk quantity of ganja found in the jerry bags after collection of samples were also sealed and a seizure list was prepared in presence of the witnesses, P.W.12 and the weighman. The informant seized the weighing machine in presence of the witnesses as per seizure list and left it in the zima of the weighman (P.W.7). Th
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