Non-compliance with the mandatory provisions of the NDPS Act leads to the acquittal of the accused when substantial compliance is not established.

JUDGMENT :

S.K. SAHOO, J.

1. The appellants Ashok Muni in JCRA No.15 of 2019, Basanta Pradhan in JCRLA No.16 of 2019, Bulu Behera in JCRLA No.17 of 2019, Chintu Samanta in JCRLA No.18 of 2019, Damodar Behera in JCRLA No.19 of 2019 and Prasanta Muni in JCRLA No.20 of 2019 faced trial in the Court of the learned Special Judge, Puri in T.R. No.12 of 2016 for the 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 15.10.2015 at about 11.15 p.m. at Tarini Chhak, Station Road, Puri, they were found in illegal possession of 100 Kgs. of ganja (cannabis) in contravention of the provisions of the N.D.P.S. Act.

The learned trial Court vide impugned judgment and order dated 19.02.2019 found all the appellants guilty of the offence charged and sentenced each of them 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 pay the fine, to undergo rigorous imprisonment for one year each.

2. The prosecution case, in short, is that on 15.10.2015 at about 10.00 p.m., while P.W.4 Raja Sekhar Swain, S.I. of Excise, Sadar Charge, Puri along with P.W.3 Santosh Kumar Nayak, Excise constable and others were performing patrolling duty, P.W.4 received reliable information that a Tavera vehicle bearing registration No.OD-07A-0111 was being used for transportation of contraband articles i.e., ganja near Puri Railway Station. P.W.4 immediately recorded the information into writing and proceeded to the spot with his staff, intercepted the Tavera vehicle about 200 mts. away from the Puri Railway station. The driver of Tavera vehicle fled away, but the appellants along with another who was subsequently found to be a juvenile, namely, Saroj Kumar Sahoo were found present in the vehicle and they were all in possession of one air bag each which they had placed on their lap. Two air bags were kept on the rear seat of the Tavera vehicle. P.W.4 apprised the appellants about his intention of search and also gave option to them to be searched either in presence of the Magistrate or in presence of the Gazetted Officer. Notices in that respect were served on the appellants and they gave their L.T.I. and signatures on the notices as a token of receipt of the same. However, all the appellants and the co-accused expressed their willingness to be searched by P.W.4 which they gave in writing and after giving their personal search, the Excise officials in presence of two independent witnesses i.e., Arun Kumar Dash (P.W.1) and Binayak Mishra (P.W.2) searched the vehicle and recovered one air bag from each of the appellants and co-accused and two air bags below the rear seat. On opening of each of the air bag, it was found that there are five small packets in it and on opening each such packet, it was found to be containing ganja which was identified by P.W.4 from its texture and smell. The packets were weighed and it was found that in each of the tens, bag there was 10 Kgs. of ganja and thus all total 100 Kgs. was found. The air bags were sealed and marked as A, B, C, D, E, F, G, H, I and J. A seizure list vide Ext.1/3 was prepared by P.W.4 in which some of the accused persons put their thumb impressions and the others put their signatures. The brass seal that was used for sealing the air bags was handed over to P.W.1 Arun Kumar Dash under zimanama Ext.9/2. P.W.4 told the appellants abou