Non-compliance with mandatory provisions of the N.D.P.S. Act vitiates the conviction, especially where the prosecution relies solely on police testimony without corroboration from independent witnesses.

JUDGMENT :

S.K. SAHOO, J.

1. The appellants Sk. Najbul and Sk. Khalil in CRLA No. 606 of 2018 and appellant A. Shimadri Rao in JCRLA No.39 of 2019 faced trial in the Court of learned 2^nd Additional Sessions Judge, Balasore in Special Case No. 02/26 of 2016 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 24.01.2016 at about 8.10 a.m., in front of Banadurga Travels office at Sahadevkhunta bus stand, they were found in possession and transporting the contraband articles i.e., Ganja weighing about 36.4 Kgs for sale without any authority or licence for the same.

The learned trial Court vide impugned judgment and order dated 26.02.2018 found 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) each, in default, to undergo further rigorous imprisonment for a further 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 24.01.2016 at about 7.35 a.m. while Ajaya Kumar Behera (P.W.5), S.I. of Excise, Sadar Charge, Balasore along with his staff were performing patrolling duty on the road from Fakir Mohan Golei to Kuruda, on the way at I.T.I. Chhak, P.W.5 received an information from reliable source regarding illegal possession and transportation of excisable articles at Sahadevkhunta bus stand. Accordingly, he wrote down the information under section 42(1) of the N.D.P.S. Act and sent the same to his immediate higher authority through a constable who delivered the letter to Inspector of Excise. P.W.5 along with his staff rushed to the spot and detained three persons holding suspected articles in jari bag. P.W.5 gave his identity and on being asked, the appellants disclosed their names and addresses. The personal search and belongings were conducted on the consent of the appellants after giving his own personal identity by P.W.5. During such search, cash of Rs.300/- was seized from appellant Sk. Khalil, Rs.300/- seized from appellant Sk. Najbul and Rs.410/- from the appellant A. Shimadri Rao. When the search of the jari bag was conducted, incriminating contraband articles i.e. ganja was recovered from the same. P.W.5 conducted some tests and from its colour and texture, he came to know that recovered substance was nothing but ganja. On the demand of P.W.5, the appellants failed to produce any authority in support of possession and transportation of such ganja. The weighment of ganja was taken and it was found to be 36 Kgs. and 400 grams. The seizure list was prepared and the contraband ganja was sealed by using of personal seal of P.W.5, after taking signatures of the appellants so also the witnesses at the spot. The copy of the seizure list was handed over to each of the appellants and in token of receipt, the appellant A. Shimadri Rao put his signature and other two appellants put their L.T.Is. on the seizure list. P.W.5 prepared the spot map, memo of arrest and other document at the spot in presence of the appellants and recorded the statements of the appellants and the witnesses. The appellants were arrested and brought to the Excise Office and then forwarded them to Court on the same day along with the seized articles. P.W.5 made a prayer to the Court for drawal of sample from the seized ganja for sending the same to the Asst. Chemical Examiner, Government o