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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Sahoo, J.
Amresh Chandra Barik - Appellant
Versus
State Of Odisha - Respondent
CRLA No. 126 of 2015
Decided On : 05-04-2021
Narcotic Drugs and Psychotropic Substances Act - Possession of Ganja - Section 20(b)(ii)(C) - The court found both appellants guilty of the offence charged under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellants were found to be in unlawful possession of contraband ganja near Surkapata Ghat road at village Majhipada on Phiringia Gochhapada road. The court held that compliance of section 42 of the N.D.P.S. Act was not necessary as the search and recovery of contraband ganja was made in a public place during day time. The court also discussed the non-production of brass seal or facsimile seal impression of personal seal in Court and the retention of seized contraband articles in safe custody before its production in Court, highlighting the serious lacuna in the prosecution case.
Fact of the Case:
The appellants faced trial for unlawful possession of contraband ganja near Surkapata Ghat road at village Majhipada on Phiringia Gochhapada road. The prosecution case stated that the appellants were found in possession of huge quantity of ganja and were waiting for transportation of the same. The appellants denied having any license or authority in support of possession of ganja. During the trial, the prosecution examined twelve witnesses, and the defence plea of the appellants was one of denial, claiming they had been falsely implicated in the case.
Finding of the Court:
The court found both appellants guilty of the offence charged under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The court held that compliance of section 42 of the N.D.P.S. Act was not necessary as the search and recovery of contraband ganja was made in a public place during day time. The court also discussed the non-production of brass seal or facsimile seal impression of personal seal in Court and the retention of seized contraband articles in safe custody before its production in Court, highlighting the serious lacuna in the prosecution case.
Issues: The issues revolved around the possession of contraband ganja by the appellants, compliance with the provisions of the Narcotic Drugs and Psychotropic Substances Act, and the safe custody of the seized articles before their production in Court.
Ratio Decidendi: The court emphasized that compliance of section 42 of the N.D.P.S. Act was not necessary as the search and recovery of contraband ganja was made in a public place during day time. The court also highlighted the serious lacuna in the prosecution case regarding the non-production of brass seal or facsimile seal impression of personal seal in Court and the retention of seized contraband articles in safe custody before their production in Court.
Final Decision: Both the Criminal Appeals were allowed, and the appellants were acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellants, who were in jail custody, were ordered to be set at liberty forthwith, if their detention was not required in any other case.
JUDGMENT
S.K. Sahoo, J. - The appellant Amresh Chandra Barik in CRLA No. 126 of 2015 and appellant Premananda Sahu in CRLA No.161 of 2015 faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Phulbani in G.R. Case No. 07 of 2013 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 26.09.2013 at about 9.35 a.m., they were found to be in unlawful possession of 32 kgs. 550 grams and 34 kgs. 600 grams of contraband ganja respectively near Surkapata Ghat road at village Majhipada on Phiringia Gochhapada road.
The learned trial Court vide impugned judgment and order dated 12.02.2015 found both the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for period of one year.
Since both the appeals arise out of one common judgment, with the consent of learned counsel for both the parties, those were heard analogously and are disposed of by this common judgment.
2. The prosecution case, in short, is that on 26.09.2013 at about 9.35 a.m. Madan Mohan Pradhan (P.W.4), Inspector in charge of Phiringia police station got information from reliable sources that the appellants were in possession of huge quantity of ganja i.e. flowering and fruiting tops of cannabis plants and were standing near Surkapata Ghat on Phiringia Gochhapada road waiting for transportation of ganja. As it was not possible to obtain a search warrant, P.W.4 arranged a raiding party comprising of the P.S. staff with a view to proceed to the spot for detection of the offence. He also informed Mr. Pravat Chandra Panigrahi (P.W.12), S.D.P.O., Sadar, Phulbani over telephone about the proposal to conduct raid and entered the ground of belief in the Station Diary vide Entry No. 450 dated 26.09.2013. Copies of the ground of belief along with extract of Station Diary Entry were sent to S.D.P.O., Sadar, Phulbani as well as Superintendent of Police, Kandhamal. P.W.4 along with the raiding party members thereafter proceeded to the spot in a police jeep and on arrival at the spot, they found two persons were standing by the road side with some plastic and gunny packets. On seeing the arrival of the police team, those two persons started running, but they were apprehended soon. On query, those persons disclosed their names as Amresh Chandra Barik (appellant in CRLA No. 126 of 2015) and Premananda Sahu (appellant in CRLA No. 161 of 2015) and admitted to have kept ganja inside the plastic and gunny packets and waiting for transportation of the same. The appellants denied to have got any license or authority in support of possession of ganja. After observing the formalities under section 50 of the N.D.P.S. Act, both the appellants were searched in presence of the Executive Magistrate Nabin Kumar Patel (P.W.9) and on personal search of appellant Amresh Chandra Barik, cash of Rs.9050/-, one original driving license, two nos. of Nokia mobile phones were recovered and two plastic packets containing ganja were also recovered from his exclusive and conscious possession. Similarly, on personal search of appellant Premananda Sahoo, cash of Rs.5,800/- and one Micromax mobile phone were recovered and two plastic packets and one gunny packet containing ganja were also recovered from his exclusive and conscious possession. On weighment of the ganja recovered from the possession of appellant Amresh Chandra Barik by weighman Bhabani Shankar Sahu (P.W.3), it was found to be 32 kg. 550 grams and similarly the weight of ganja recovered from the possession of appellant Premananda Sahu were found to be 34 kg. 600 grams. P.W.4 collected two samples of 50 grams from each bag. After collection of the samples, P.W.4 stitched, packed and sealed the sample packets and the bulk ganja packets in presence
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