IN THE HIGH COURT OF ORISSA, CUTTACK

CRIMINAL APPEAL No. 187 Of 2012

From the Judgment and Order dated 17.02.2011 passed by the

Additional Sessions Judge -cum- Special Judge, Nabarangpur in

C.T. No. 86 of 2007.

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Haren Mandal

………

Appellant

-Versus-

State of Odisha

………

Respondent

For Appellant: - Mr. Jugal Kishore Panda

For Respondent: -

Mr. Priyabrata Tripathy

Addl. Standing Counsel

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P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 11.07.2019

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S. K. SAHOO, J.

The appellant Haren Mandal faced trial in the Court

of learned Additional Sessions Judge -cum- Special Judge,

Nabarangpur in C.T. No. 86 of 2007 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 09.11.2007 he was found in unlawful

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possession and transportation of Ganja (cannabis) weighing 36

kg. in Majhiguda forest footway.

The learned trial Court vide impugned judgment and

order dated 17.02.2011 found the appellant guilty of the offence

charged and sentenced him to undergo rigorous imprisonment

for a period of twelve years and to pay a fine of Rs.1,25,000/-

(rupees one lakh twenty five though), in default, to undergo

further rigorous imprisonment for period of three years.

2.

The prosecution case, in short, is that on 09.11.2007

at about 4.00 p.m. while P.W.4 Dillip Kumar Gouda, S.I. of

Excise, Umerkote was performing patrolling duty along with his

staff near village Majhiguda under Umarkote police station, at

that time, he received information through reliable sources that

one man was illegally transporting contraband ganja on the

forest footway of village Majhiguda. On receipt of such

information, P.W.4 immediately took down the information in

writing and sent it to his superior officer, i.e., Excise

Superintendent, Nabarangpur vide Ext.3 and then proceeded to

Majhiguda jungle. While P.W.4 and the other excise staff were

concealing themselves in the jungle awaiting arrival of that man,

they found the appellant was coming on that way carrying two

gunny bags in a ‘bahungi’. The appellant was stopped by the

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excise officials and P.W.4 gave his identity before him and also

told him the reasons for obstructing him. At that time, P.W.1

Sankar Das was passing by that road and he was called to the

place where the appellant was detained. Suspecting that the

gunny bags were containing contraband ganja, P.W.4 expressed

his intention to search the appellant as well as the gunny bags

which he was carrying and gave the option of search to the

appellant in presence of the Executive Magistrate. After

disclosing his name, the appellant gave his option to be searched

by an Executive Magistrate. On the basis of the written option

(Ext.4) given by the appellant, P.W.4 deputed a constable to the

Tahasildar, Umerkote with a written requisition (Ext.5) to come

to the spot and to assist in the search. The Tahasildar (P.W.3)

reached at the spot at 6.00 p.m. and he took the personal search

of P.W.4 and other excise staff and in his presence, the gunny

bags carried by the appellant were opened. P.W.4 tested the

contents of the gunny bags by rubbing it in his own hand and he

came to know that the articles found inside the gunny bags were

nothing but ganja. The ganja was weighed which was found to

be 36 kg. and each gunny bag was containing 18 kg. of ganja.

P.W.4 collected 50 grams of ganja from each of the gunny bags

towards sample and divided it into four packets a