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IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. SAHOO, J.
Lal Khan - Appellant
Versus
State of Orissa - Respondent
JCRLA No. 58 of 2016, Crl A No.693 of 2016
Decided on : 23-06-2022
Narcotic Drugs and Psychotropic Substances Act - Unlawful Possession - Section 20(b)(i) - Summary of Acts and Sections: The court discussed the applicability of section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which pertains to the unlawful possession of cannabis. The court highlighted the distinction between section 20(b)(i) and 20(b)(ii)(C) and emphasized the importance of correctly framing the charge and ensuring proper conviction under the relevant offence. The court also examined the mandatory compliance of provisions under section 42(1) and 42(2) of the N.D.P.S. Act, which require recording of information in writing and sending a copy to the immediate official superior. The judgment set aside the conviction of the appellants under section 20(b)(i) of the N.D.P.S. Act due to the prosecution's failure to establish compliance with the mandatory provisions.
Fact of the Case:
The appellants were found guilty of unlawful possession of 119 Kgs. 800 grams of Ganja in a Mini Truck without any authority. The prosecution case was based on credible information received by the police, interception of the Mini Truck, and seizure of the contraband. The appellants refuted the charge, claiming a false case was foisted against them.
Finding of the Court:
The court found that the charge under section 20(b)(i) of the N.D.P.S. Act and the subsequent conviction of the appellants were not legally sustainable due to the incorrect framing of the charge. The court emphasized the importance of correctly framing the charge and ensuring proper conviction under the relevant offence. The court also highlighted the non-compliance of mandatory provisions under section 42(1) and 42(2) of the N.D.P.S. Act, which rendered the entire prosecution case suspect and caused prejudice to the accused.
Issues: The issues revolved around the correct framing of the charge under the N.D.P.S. Act, the compliance with mandatory provisions under section 42(1) and 42(2), and the sufficiency of evidence to establish the guilt of the appellants beyond all reasonable doubt.
Ratio Decidendi: The court's decision was based on the incorrect framing of the charge under section 20(b)(i) of the N.D.P.S. Act, the non-compliance of mandatory provisions under section 42(1) and 42(2), and the failure of the prosecution to establish the guilt of the appellants beyond all reasonable doubt.
Final Decision: The judgment set aside the conviction of the appellants under section 20(b)(i) of the N.D.P.S. Act and ordered the release of the appellants from judicial custody.
JUDGMENT :
S.K. SAHOO, J.
The appellant Lal Khan in JCRLA No. 58 of 2016 and appellant Amir Khan in CRLA No.693 of 2016 faced trial in the Court of learned Addl. Sessions Judge -cum-Special Judge, Jeypore in Criminal Trial No.47 of 2013 for offence punishable under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 30.01.2013 at about 6.30 a.m. near Chakde india Hotel Chowk on N.H.26 (Jeypore-Borigumma Road), they possessed 119 Kgs. 800 grams of Ganja in a Mini Truck bearing Regd. No.MP-42-G-0524 without any authority.
Both the appellants were found guilty of the offence charged by the learned trial Court and sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/-(rupees one lakh) each, in default, to undergo further rigorous imprisonment for a period of six months vide impugned judgment and order dated 01.07.2016/04.07.2016.
Since both the appeals arise out of one common judgment and order of conviction, with the consent of learned counsel for the respective parties, those were heard analogously and disposed of by this common judgment.
2. The prosecution case, in short, is that Amal Sardar (P.W.7), Sub-Inspector of Police, Jeypore Sadar Police Station received a credible information on 30.01.2013 at 5.00 a.m. about transportation of ganja in a Mini Truck bearing registration No.MP-42-G/0524 running from Baipariguda side to Raipur side. Entering the said fact in the station diary, P.W.7 proceeded to detect the case with other staffs, namely, Purusottam Jani (P.W.1), Laxman Barik, Sarat Chandra Bisoi and Chudamani Biswal, Head Constable and at about 5.45 a.m. near Chakde India Hotel Chowk, Jeypore, he intercepted the Mini Truck coming from Baipariguda side with two occupants (the appellants). After ascertaining the identity of the occupants/appellants, at their option, he requisitioned the Executive Magistrate (P.W.5) to the spot and arranged one weighing man (P.W.6) and two independent witnesses, namely, P.W.3 and P.W.4 and then, he searched the appellants and the involved Mini Truck in their presence. Besides the articles as per exhibits, Ext.4/2 contained the properties recovered on personal search of the appellants. He also recovered twenty four numbers of packets wrapped with polythene from the vehicle as per the seizure list Ext.3/2 and the articles in the packets were suspected to be Ganja. From a homogeneous mixture sample in two packets, each containing 25 grams were collected from each recovered packets. The samples were duly kept in sealed packets marked as A to X. The appellants and the seized properties were produced before the Inspector in-charge of Jeypore Sadar police station. P.W.7, the informant presented the written report before P.W.8 Rakesh Kumar Tripathy, who was acting as Inspector in-charge on temporary basis in absence of the regular Inspector in-charge of Jeypore Sadar police station and accordingly, P.W.8 registered Jeypore Sadar P.S. Case No.15 dated 30.01.2013 under section 20(b)(i) of N.D.P.S. Act against both the appellants. P.W.7 also produced the seized contraband articles along with the Mini Truck as per the seizure list. The contraband articles were kept in the police station malkhana in a sealed condition. P.W.8 took up investigation of the case, visited the spot, examined the witnesses and on 31.01.2013 he forwarded both the appellants along with the seized contraband articles including the sample packets before the learned Special Judge, Jeypore and as per the direction of the learned Special Judge, Jeypore, P.W.8 produced the sample packets before the learned S.D.J.M., Jeypore on the next day, which was then forwarded to R.F.S.L., Berhampur through C/625 H.H.Naik for chemical analysis. P.W.8 submitted a detailed report before the Superintendent of Police, Koraput, which was later on seized as per seizure list Ext.21. The relevant station diary entry in which the fa
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