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2019 Supreme(Ori) 286
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Mishra, J.
Hemlal Chandrakar – Appellant
Versus
State of Orissa – Respondent
Criminal Appeal No. 104 of 2014
Decided On : 01-02-2019
The judgment established the principle that the prosecution must prove conscious and exclusive possession of contraband beyond all reasonable doubt, and in case of doubt, the benefit should be extended to the accused.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Illegal Possession of Ganja - Section 20(b)(ii)(C) of the N.D.P.S. Act - Section 154 of the Indian Evidence Act, 1872
Fact of the Case:
The appellant was convicted for illegal possession of Ganja and sentenced to undergo R.I. for eleven years and to pay a fine of Rs.1,00,000. The prosecution case was based on the seizure of 260 kgs of Ganja from the appellant's house, while the defence claimed false implication.
Finding of the Court:
The court found that the prosecution failed to establish the conscious and exclusive possession of the contraband Ganja by the appellant beyond all reasonable doubt, leading to the benefit of doubt being extended to the appellant and his acquittal.
Issues: The main issue was whether the appellant illegally possessed Ganja weighing about 260 kgs in thirteen polythene bags at his residence.
Ratio Decidendi: The court emphasized the importance of establishing conscious and exclusive possession of the contraband, and highlighted the need for the prosecution to stand on its own legs without relying on the witnesses of the defence. The court also noted the contradictions in the evidence and the benefit of doubt was granted to the appellant.
Final Decision: The criminal appeal was allowed, the appellant was acquitted, and the judgment of conviction and sentence was set aside. The appellant was ordered to be set at liberty forthwith.
JUDGMENT :
S.K. Mishra, J.
In this CRLA, the convict has assailed the correctness of the judgment of conviction and order of sentence dated 28.01.2014 passed by the learned Special Judge, Nuapada in Special Act Case No.01 of 2013, whereby he has been convicted and sentenced to undergo R.I. for eleven years and to pay a fine of Rs.1,00,000 (Rupees one lakh only), in default, to suffer further R.I. for one year for commission of offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as the N.D.P.S. Act for brevity.
2. Shorn off unnecessary details, the prosecution case in short is that on 13.02.2013 the Inspector-in-charge, Jonk Police Station (P.W.14) received a telephonic information from an unknown source that the accused was in possession of huge quantity of Ganja in his house at village Sareipali. He was going to dispose of the same. P.W. 14 to that effect making an entry in the station diary vide entry No.314 dated 13.02.2013 directed the Sub-Inspector (P.W.13) to proceed to the spot along with available staff to verify the information and workout the clue. Accordingly, P.W.13 along with staff proceeded to the spot by the Police Jeep. On the way, P.W.13 picked up two witnesses to assist her in the investigation. On arrival in the occurrence village, P.W.13 contacted the source who identified the accused and his house to her. To avoid of delay without any search warrant, P.W.13 along with her staff searched the house of the accused. The accused attempted to escape, but he was caught and when asked, he denied possessing of the Ganja. Search being conducted in his house,13 numbers of polythene bags containing Ganja were recovered from the first room of the upstair of his house. P.W. 13 procured the weighman P.W.3 and his weighing machine through the Havildar P.W.6. She arranged the plastic sheet (Dari) through P.W.10, the Homeguard. She also procured the investigation kit, weighman and polythene sheet to the accused. She got the polythene sheet spread on the floor of the spot room. She opened the polythene bags and dumped the contents of those 13 bags on the polythene sheet and mixed all the Ganja homogeneously and took weighment of bulk Ganja through P.W.3 weighman. The bulk Ganja was found to be 260 kgs. On being asked, the accused failed to produce any license or authority for possession of Ganja.
She drew two samples each weighing 25 grams from the Bulk Ganja in two separate polythene packets which she sealed by heat process inserting paper slips containing her signature and that of the witnesses, weighman and the accused. Then, she sealed all 13 bags containing Ganja. She also kept the paper slips containing her signature and that of the witness, weighman and the accused in a paper envelop under seal. She got those polythene bags wrapped with white cloth by stitching process and got those sealed with her personal brass seal taking signatures of the accused and other witnesses on those bags. She seized the recovered Ganja of 260 Kgs. in 13 bags, prepared seizure list, left her personal brass seal in the custody of the witness Rajendra Agrawal (PW2) and seized the weighing machine left it in the custody of the P.W.3. She arrested the accused, removed him in her custody to the Police Station and removed the seized Ganja in 13 polythene bags to the Police Station by arranging a Mini Truck.
On her arrival at the Police Station, she lodged a written report with P.W.14, who got it registered and took up investigation, received the seized 13 bags of Ganja, made entry in the Malkhana register, examined the witnesses and the accused, visited the spot, prepared spot map and produced the sample in the court which was dispatched to Regional Foreignsic Scientific Laboratory, Berhampur for examination. He got the seized Ganja bags deposited in Malkhana of the Special Court, sent intimation to Sub-Divisional Police Officer, Nuapada, for lodging of FIR by P.W.13 in this case and
