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HIGH COURT OF ORISSA
MR. JUSTICE S.K.SAHOO
DAMODAR BEHERA – Appellant
Versus
STATE OF ODISHA – Respondent
JCRLA/19/2019
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20(B)(II)(C) - COMPLIANCE OF SECTION 42 - MANDATORY PROVISIONS - NON-COMPLIANCE - EFFECT - EVIDENCE - INDEPENDENT WITNESSES - FAILURE TO SUPPORT PROSECUTION CASE - INVESTIGATION BY INFORMANT - BIAS - ABSENCE OF CLINCHING EVIDENCE - ACQUITTAL.
Fact of the Case:
Appellants were found in illegal possession of 100 Kgs. of ganja (cannabis) in contravention of the provisions of the N.D.P.S. Act. The trial Court 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.
Finding of the Court:
The prosecution has failed to prove that there has been compliance of section 42 of the N.D.P.S. Act. The independent witnesses have not supported the prosecution case and there are glaring inconsistencies between the evidence of the two official witnesses. There is also an absence of any clinching evidence relating to compliance of mandatory provision under section 42 of the N.D.P.S. Act and in view of the lacunas as pointed out above.
Issues: Whether the prosecution has successfully proved that there has been compliance of section 42 of the N.D.P.S. Act. Whether the independent witnesses have supported the prosecution case. Whether there are any glaring inconsistencies between the evidence of the two official witnesses. Whether there is any clinching evidence relating to compliance of mandatory provision under section 42 of the N.D.P.S. Act.
Ratio Decidendi: Total non-compliance of requirements of sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. In the present case, the prosecution has failed to prove that there has been compliance of section 42 of the N.D.P.S. Act. The independent witnesses have not supported the prosecution case and there are glaring inconsistencies between the evidence of the two official witnesses. There is also an absence of any clinching evidence relating to compliance of mandatory provision under section 42 of the N.D.P.S. Act and in view of the lacunas as pointed out above, the appellants are entitled to acquittal.
Final Decision: The impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence passed thereunder by the learned trial Court is hereby set aside. The appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act.
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 15 Of 2019
From the judgment and order dated 19.02.2019 passed by the
Special Judge, Puri in T.R. Case No.12 of 2016.
----------------------------
Ashok Muni ....
Appellant
Mr. Rajib Bihari Mishra
Mr. Niranjan Panda
Advocate
-versus-
State of Odisha ....
Respondent
JCRLA No.16 of 2019
Basanta Pradhan ....
Appellant
Mr. Maharsi Mohapatra
Mr.Manas Ranjan Pradhan
Advocate
-versus-
State of Odisha ....
Respondent
JCRLA No.17 of 2019
Bulu Behera ....
Appellant
Mr.Dhananjaya Nayak
Advocate
-versus-
State of Odisha ....
Respondent
// 2 //
Page 2 of 28
JCRLA No.18 of 2019
Chintu Samanta ....
Appellant
Mr.Surya Kant Dash
Mr. Harekrushna Moharana
Advocate
Mr. Deba Prasad Dash
(Amicus curiae)
-versus-
State of Odisha ....
Respondent
JCRLA No.19 of 2019
Damadar Behera ....
Appellant
6
Mr.Dhanjaya Nayak
Advocate
-versus-
State of Odisha ....
Respondent
JCRLA No.20 of 2019
Prasanta Muni ....
Appellant
Mr.Manas Ranjan Pradhan
Mr. Maharshi Mohapatra
Advocate
-versus-
State of Odisha ....
Respondent
(In all cases for the State of Odisha)
Mrs. Susamarani Sahoo
Addl. Standing Counsel
----------------------------
// 3 //
Page 3 of 28
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 05.01.2023
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S.K. SAHOO, J.
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.
// 4 //
Page 4 of 28
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 Tav
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