The duty of the prosecution to adduce reliable evidence, the need for independent analysis of the evidence, and the balancing of the rights of the accused and the prosecution.

JUDGMENT

A. K. Mishra, J. - Appellants have assailed their conviction U/s.20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) and sentence to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- each, in default to undergo R.I. for one year in the judgment dtd.25.3.2015 / 6.5.2015 passed by the learned Sessions Judge-cum-Judge, (Special Court), Sambalpur in T.R. Case No.55 of 2012.

2. Tersely put, the prosecution case is that on 22.7.2012 at about 12.30 P.M. at Bhabanipali, while P.W.3 - the Inspector of Excise along with his staff including P.W.1 - Constable was patrolling, intercepted one Indigo Car bearing registration No.CG-04-HD-1338 on suspicion. Both the appellants were inside the vehicle. Appellant Baldev was the driver. Appellant Mohammad Awesh Memon was the occupant. Both of them were interrogated and were given option U/s.50 of NDPS Act. They expressed to be searched by P.W.3. Thereafter in presence of one independent witness (P.W.,2), search of the vehicle was conducted by P.W.3. A Jery bag containing 60 Kg. of Ganja was recovered. It was weighed. P.W.3 collected two sample packets each containing 50 gm. from the bulk and using his brass seal, sealed the bulk packet vide Ext.A (M.O.I), Ext.A-a - Ext.A-b (M.O.II). He prepared seizure list, recorded statement of accused persons and ascertained that the seized ganja was procured from one Iswar Prasad Satpathy (acquitted) and one Brahmanandam Jarvadi was the owner of the seized vehicle. P.W.3 - Inspector forwarded seized ganja to Town Police Station for safe custody and kept accused persons under his guard.

Later, at 1.45 P.M., P.W.3 detected another case involving accused persons and submitted P.R. vide T.R. No.56 of 2012.

On next day, the seized ganja was produced before court and one sample packet (Ext.A-b) was sent for chemical examination by S.D.J.M., Sambalpur. Chemical examination report in positive was received vide Ext.8. After completion of investigation P.W.3 submitted prosecution report No.15 of 2012 before the Special Court, Sambalpur against four accused persons including present two appellants and acquitted accused Iswar Prasad Satpathy. The fourth accused was Brahmanandam Jarvadi. The Special Court took cognizance of offence U/s.20(b)(ii)(c) of the N.D.P.S. Act. The case against Brahmanandam Jarvadi was split up vide order dtd.16.8.2013. Consequently, three accused persons faced trial to the charge.

2-A. Denial was the plea of accused persons. Prosecution examined three witnesses in all. P.W.1 is a constable. P.W.3 is the Inspector who detected and conducted investigation. P.W.2, the sole independent witness, is declared hostile. Eighteen documents are exhibited. Bulk ganja and one sample packet are made M.O.I and M.O.II.

Defence adduced no evidence, either oral or documentary.

2-B. Learned Special Judge has mentioned in judgment para 2 as follows:-

"2. Before entering into the discussion of the facts of the case in hand, a little reference to the backdrop needs mention. That, two cases have been detected by the then Inspector of Excise, District Mobile, Sambalpur, on a single day, i.e. on 22.7.2012, with a gap of one hour and fifteen minutes. While the case in hand was detected at about 12.30 P.M., the second case in TR No.56 of 2012 was detected at about 1.45 P.M. The subject matter involved in both the cases are interlinked inter alia. Thus, both the cases were heard together on some common points for better appreciation."

Analyzing evidence, learned Special Judge held that:

(i) Absence of independent corroboration, i.e. P.W.2 would not shake the evidence of official witnesses P.W.1 and P.W.3 as they are reliable.

(ii) Non-compliance of Section 42 and 50 of the NDPS Act is not fatal as the empowered officer (P.W.3) conducted search U/s.100 and Section 165 of the Cr.P.C. and the empowered officer is not required to inform the Superior Authority.

(iii) Fact of sealing being not disputed during production in th