Non-compliance with mandatory procedural safeguards under Section 50 of the NDPS Act vitiates the prosecution case, entitling the accused to the benefit of doubt.

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, filed by the appellant is directed against the judgment and order dated 30.10.2009 passed by the learned 2^nd Additional Sessions Judge, Berhampur in 2(a) C.C. No.6 of 2008(N), whereby the appellant has been convicted for the offence under Section 20 (b)(ii)(B) of the N.D.P.S. Act and on that count, he is sentenced to undergo R.I. for five years and to pay a fine of Rs.50,000/- (rupees fifty thousand), in default, to undergo further R.I. for one year.

2. Heard Mr. Sanjay Kumar Pradhan, learned counsel appearing for the appellant and Ms. Sarita Moharana, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that on 16.04.2008 at about 7.30 A.M., while K.K. Rao, I.I.C., E.I. & E.B., Berhampur, was performing patrol duty in the Utkal Ashram Road area of Berhampur Town along with his staff, he noticed the accused Jagannath Panigrahi moving suspiciously near the Ganjam Kala Parisada Gate, carrying a Jari bag in his hand. Entertaining suspicion, the Sub-Inspector of Excise detained the accused and called an independent witness, namely Tuna Nayak. After observing the procedural formalities, a search was conducted, during which 5 Kg. 500 grams of Ganja was recovered from the Jari bag in possession of the accused.

After testing the seized contraband, the excise officer collected two representative samples of 50 grams each, which were duly packed and sealed, and the remaining bulk quantity of Ganja was also sealed separately by affixing his personal brass seal. A seizure list was prepared at the spot and a copy thereof was supplied to the accused. Thereafter, the accused was arrested and produced along with the seized articles before the learned Special Judge, Berhampur on the same day.

Pursuant to the direction of the learned Special Judge, one of the sample packets was forwarded to S.D.T.R.L., Bhubaneswar for chemical examination through the learned S.D.J.M., Berhampur, along with the requisite forwarding letter. The chemical examination report was received directly by the Court. During course of investigation, the excise officer examined the accused and the independent witnesses, thereafter submitted a detailed report of search and seizure to his immediate superior, and upon completion of investigation, laid the prosecution report against the accused for the offence punishable under Section 20 (b)(ii)(B) of the N.D.P.S. Act. Hence, the prosecution case.

4. In order to substantiate the charges against the accused persons, the prosecution examined only two witnesses, and both are the official witnesses, P.W.1, the Constable of Excise and PW.2 is the Investigating Officer.

5. The plea of the accused is one of total denial and complete ignorance of the alleged occurrence. He has pleaded not guilty and has claimed to be tried. His specific defence is that while he was sitting near the hotel shop of his sister, the Excise staff forcibly apprehended him by dragging him away, obtained his signatures on various papers, and falsely implicated him in the present case. According to him, no Ganja was seized from his possession and he was subsequently forwarded to the Court on a fabricated allegation. Accordingly, he faced trial.

6. The learned trial Court, placing substantial reliance on the testimony of the official witnesses, and other exhibits placed on record arrived at the conclusion that the accused-appellant was in conscious possession of contraband ganja and observed as follows:

“12. Thus, from the entire discussion made above, I find that the seizure of M.O.I and M.O.II from out o