CAV Judgment

03/04/2019

1. This appeal has been preferred against the judgment of conviction and order of sentence dated 31.8.2017 passed by the learned Special Judge N.D.P.S., Saraipali, District- Mahasamund in Special Criminal Case No.06/2016 convicting the accused/appellants under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act , 1985 (for short 'NDPS Act') and sentencing each of them to undergo RI for 10 years with fine of Rs.1,00,000/- plus default stipulation.

2. The prosecution case, in brief, is this that on 2.10.2015 SHO K.B. Dwivedi PW-7 along with his team was checking the vehicles coming from the side of Odisha. One car Bearing Registration No. HR-26-T-4215 did not stop on signaling, which was chased and stopped. The driver of the car fled towards the jungle. The appellant in all three appeals were found traveling in the said car, who introduced themselves. They also made statement that they are bringing ganja from Banda Chowk, Sambalpur, which was purchased from Ratnakar Behra and was being transported for Kallu Thakur @ Jagdish. PW-9 Executive Magistrate Shri Atul Vishwakarma was summoned on the spot with a request to remain present during search procedure. Notice under Section 50 of NDPS Act was served upon the appellants informing them about their rights of being searched in presence of any gazetted Officer or Executive Magistrate. The appellants consented for their search by the police officer present on the spot. The police party gave their own search to the appellants in which nothing objectionable was found. Thereafter the dickey of the car was searched and 74 packets containing substance like ganja were recovered. On weightment, the same were found to be 74 kgs. Contents of the packets were taken out and after preparing homogeneous mixture of ganja available in those packets, two samples each of 100 gm were prepared and sealed in presence of witnesses. Remaining ganja of 73.800 kilogram was again packed and sealed in the packets. Seizure of vehicle, samples, papers of vehicle, packets of ganja and other articles were made vide Ex. P-17, 18 & 19 respectively. Subsequent to that, the offence under Section 20 (c), 27(a), 28 and 29 of NDPS Act was registered against the appellants vide FIR (Ex.P-31). The appellants were arrested on the spot. Seized articles were handed over to Maalkhana Moharrir for keeping the same in the safe custody i.e. in the Malkhana of the police-station. Samples of seized articles ganja were sent for chemical examination to the FSL and according to report of FSL (ExP-34), the samples were found to be ganja. The investigation was completed and charge-sheet was filed.

3. The appellants were charged with the offence under Section

20(B)(ii)(c) of the NDPS Act. They abjured their guilt and sought trial. The prosecution in order to prove its case examined as many as 14 witnesses. Statements of appellants were also recorded under Section 313 of CrPC, in which they denied all the incriminating evidence available against them and pleaded innocence and false implication. No witness was examined in defence.

4. After completion of trial, the trial court by the impugned

judgment convicted and sentenced the appellants in the manner as mentioned herein-above.

5. It is submitted by counsel for appellants in all the three cases

the conviction of the appellants is bad in law, being not supported by the evidence of cogent and clinching nature. Statement of Investigating Officer K.B. Dwivedi PW-7 was not reliable & trustworthy and further it was not supported by the evidence of independent witnesses Shripati Nayak PW-5 and Sarthi Sao PW-6. Search was not made in accordance with the procedure provided under the NDPS Act. The timings mentioned in the search and seizure memos do not match with each other, which creates doubt in the entire prosecution story. Though the samples were handed over to Rohit Kumar PW-12 for keeping it in safe custody, but he, instead of depositing the same in th