HIGH COURT OF ORISSA: CUTTACK JAIL CRIMINAL APPEAL No.66 of 2004 From the judgment and order dated 19.5.2004 passed by Shri S.Pujahari, Second Addl. Sessions Judge-cum-Special Judge, Berhampur in G.R. Case No.2 of 2002 (N) corresponding to T.R. Case No. 6 of 2003. ---------- N.Laxminarayana ………… Appellant -versus- State of Orissa ………… Respondent For Appellant : Mr. Maitrijit Mohanty & associates For Respondent : Addl. Govt. Advocate P R E S E N T: THE HON’BLE MR. JUSTICE B.K.MISRA ----------------------------------------------------------------------------------------------- Date of Judgment: 23.08.2011 ----------------------------------------------------------------------------------------------- B.K.Misra, J. The appellant being aggrieved with the order of conviction and sentences imposed on him by the learned Special Judge-cum-Second Addl. Sessions Judge, Berhampur in G.R. Case No. 2 of 2002(N) corresponding to T.R. Case No. 6 of 2003 has preferred this appeal. The appellant being convicted by the learned Special Judge under Section 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred as, “N.D.P.S. Act”) was sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.30,000/-, in default to undergo further rigorous imprisonment for one year. 2. The case of the prosecution is that on 7.5.2002 the I.I.C., Baidyanathpur Police Station, Berhampur received V.H.F. information 2 that a person carrying a gunny bag suspected to be containing ‘ganja’ has been detained by the Traffic constable Trilochan Das (P.W.1) at New Bus stand Berhampur. That message which the I.I.C., Baidyanathpur Police Station namely Sri Brahmananda Gagarin Mohanty (P.W.7) received was entered in the Station Diary Book of the said Police Station vide S.D. entry No. 178 dated 7.5.2002 and P.W.7 directed S.I. of Police Sri Dilip Kumar Das (P.W.5) to proceed to the spot for verifying the truth or otherwise of the said V.H.F. information. Accordingly, P.W.5 proceeded to the spot along with Constable 448 G.H.Naik (P.W.3). P.W.5 on arrival at the spot found the present appellant being detained by P.W.1 and on being questioned the appellant disclosed his name and address and further disclosed that he was carrying 5 kilograms of ‘ganja’ which he collected from Ankuli under Jarada Police Station and was on his way to Puri for selling the same. P.W.5 thereafter issued requisition soliciting the presence of one Executive Magistrate as the appellant disclosed his intention to be searched in presence of one Executive Magistrate. On receipt of the Police requisition, Sri Sangram Sekhar Panda (P.W.4) who was then Additional Tahasildar, Berhampur being directed by the Sub- Divisional Magistrate, Berhampur arrived at the spot where after, after observing all the formalities of search the bag of the appellant which he was carrying was searched in presence of the witnesses Krushna Chandra Sahu (P.W.8) and S.Kusa Kumar Patro and it was found that the said bag was carrying ganja and when weighment of the contents of the gunny bag was taken it weighed 5 Kilograms. Samples each weighing 50 grams were collected twice from the bulk quantity of 3 ganja for chemical examination. The bulk quantity of 4 Kilograms and 900 grams of ganja was then kept in a packet which was sealed by paper seal in presence of the witnesses and P.W.4. Similarly the sample packets were also sealed by paper seal and by personal seal of P.W.5. P.W.5 drew up the plain paper F.I.R. namely, Ext.7 and on receipt of the said F.I.R., P.W.7 registered Baidyanathpur P.S. Case No. 99 of 2002 and directed S.I. of Police Sri B.D.Swain (P.W.9) to take up investigation of the case. P.W.9 proceeded with the investigation and on completion of investigation getting prima-facie materials, placed charge sheet against the appellant to stand his trial. 3. The plea of the appellant is that of complete denial of seizure of any ganja from his possession. It is the further plea of the appellant that on 7.5.2002 he was returning from the house of a relation at Sompeta in Andhra Pradesh and while boarding a bus at Berhampur Bus stand to Bhubaneswar, he was caught by Police with a bag containing his clothes. It is his specific plea that he was not carrying any ganja. 4. The prosecution in order to establish its case against the appellant examined nine witnesses in all and of them, P.W.1 was the Traffic constable who detained the appellant on the date of occurrence at Berhampur New Bus stand suspecting that the appellant was carrying ganja in a gunny bag which he was holding. P.W.2 is a Sub- Inspector of Police who informed Baidyanathpur Police Station regarding the detention of the appellant by P.W.1. P.W.3 is the Police constable who had accompanied P.W.5 to the spot for verifying the information which I.I.C. P.W.7 had received over V.H.F. from P.W.2. 4 P.W.4 was the Executive Magistrate in whose presence search and seizure in this case took place. P.Ws. 5, 6 and 7 are the Police Officers of Baidyanathpur P.S. P.W.8 is an independent witness for the prosecution on the point of search and seizure in this case. P.W.9 is the I.O. of this case. The appellant did not examine any witness in his defence. 5. On consideration of the entire evidence on record, the learned Special Judge-cum-Second Addl. Sessions Judge, Berhampur arrived at the conclusion that the prosecution was able to establish its case against the appellant that he was carrying 5 Kilograms of ganja and thus was in exclusive possession of ganja and accordingly recorded the order of conviction and passed the impugned sentences which is under challenge in this appeal. 6. The findings of the learned Special Judge is being assailed in this appeal on the ground that the learned Special Judge unnecessarily placed overwhelming reliance on the testimonies of the official witnesses who are definitely highly interested persons. 7. The learned counsel for the appellant in course of argument contended that in view of the evidence of independent witness P.W.8, the Court should have disbelieved the factum of search and seizure and should have acquitted the appellant of the charge. On the other hand, learned counsel appearing for the State supported the order of conviction and sentences as according to the learned counsel for the State those were based on evidence to show that the appellant was in exclusive and conscious possession of 5 Kilograms of ganja. 5 8. On scanning the evidence on record it is found that P.W.1, the Traffic Constable who was on duty on 7.5.2002 in the Traffic Out Post near New Bus stand, Berhampur has categorically deposed that around 2 P.M. he found the accused running with a gunny bag in his hand being chased by 4 to 5 others. P.W.1 further deposed that the accused was about to get into the bus and he detained the accused and demanded his identity. On being asked the accused appellant disclosed that he was carrying Ganjei. P.W.1 also deposed that in the meantime Baidyanathpur Police arrived at the spot and on seeing S.I. Dillip Kumar Das he reported the entire incident. It is also seen from the evidence of P.W.1 that the Tahasildar arrived at the spot sometime thereafter and enquired from the accused his identity and what he was carrying. In their presence the accused told that he was carrying ganja. It is also seen from evidence of P.W.1 that they found the gunny bag of the appellant was containing ‘ganja which weighed 5 kilograms out of which two small quantities each weighing 50 grams were drawn and thereafter the bulk quantity of ganja and sample packets were separately packed and sealed. The evidence of P.W.1 that the accused was found in possession of a gunny bag containing 5 Kilograms and he was cut red handed with the contraband article at the New Bus stand, Berhampur and the seizure of such ganja in presence of the Tahasildar, Berhampur and other witnesses has remained unshaken and though P.W.1 has been cross-examined at length, but nothing could be elicited from his mouth to dis-believe his evidence. P.W.2 was a S.I. of Police who simply deposed that on 7.5.2002 she was performing duty 6 at new Bus Stand, Berhampur City Control Room and around 1.30 P.M. she was informed by the Constable Trilochan Das about the occurrence and therefore she passed on the said information over V.H.F. to I.I.C. Baidyanathpur Police Station. Thus the evidence of P.W.2 is of no assistance to the case of prosecution on the point of search and seizure. P.W.4 deposed that he was Additional Tahasildar, Berhampur on 7.5.2002 and on that day as per the direction of the S.D.M., Berhampur he proceeded to New Bus stand, Berhampur and he further deposed that he along with police officers gave their personal search to the accused. But no incriminating material could be found either from his possession or from the possession of the police officer. P.W.4 deposed that in his presence the accused was searched and he was found having a gunny bag and on opening the same it was found that he was carrying Ganja and on weighment it was found to be 5 Kilograms out of which samples were drawn weighing 100 grams were divided equally and kept in separate packets which were sealed after obtaining his signature and of other witnesses. P.W.4 deposed that bulk ganja packet was also sealed with paper slip and he proved the gunny bag containing bulk ganja in Court which was marked as M.O.I. and sample packet was marked as M.O.II on his identification too. P.W.4 also proved the seizure list which was prepared at the spot as Ext.2 and he proved the paper seal affixed to the bulk ganja as Ext.3. Though P.W.4 has been cross- examined, but his evidence has remained unshaken and there is nothing to disbelieve the evidence of P.W.4. P.Ws. 3 and 5 the two Police Officers consistently deposed that as per the direction of the 7 I.I.C., Baidyanathpur Police Station they proceeded to New Bus stand Berhampur on 7.5.2002 at about 2 P.M. as information was received over V.H.F. from S.I. of Police Sandhyarani Sahu of City Control Room, Berhampur, New Bus Stand, Berhampur that a person suspected to be carrying ganja to have been detained by Trilochan Dash, Traffic constable. It is also their consistent evidence that on arrival at New Bus stand Berhmapur, the identity of the present appellant was ascertained and also the option of the appellant was solicited whether he wanted to be searched in presence of an Executive Magistrate and when the appellant expressed his desire in writing to be searched in presence of an Executive Magistrate, a requisition was sent to the S.D.M., Berhampur for deputing an Executive Magistrate to the spot. It is also the unchallenged testimony of P.W.5 that around 3 P.M. Sangram Sekhar Panda, Executive Magistrate, Berhampur arrived at the spot besides that the witnesses Krushna Chandra Sahu and Kusa Patro were requested by him to remain present at the spot. It is also the consistent evidence of P.Ws.3 and 5 as well as of the Executive Magistrate who was deputed S.D.M., Berhmapur to the spot namely P.W.4 that on search of the gunny bag which the appellant was having with him it. It was found that the bag was containing ganja and on weighment it became 5 Kilograms and of that samples weighing 100 grams was drawn which were divided into two equal parts and kept in a separate packet which were sealed with specimen seal of P.W.5 and also by paper seals containing the signature of all the witnesses. It is also seen from their evidence that bulk ‘ganja’ weighing 4 Kilograms and 900 grams was also kept in 8 another packet which was also sealed with the brass seal of P.W.5 and paper slips containing the signature of the witnesses. The bulk quantity of ganja kept in the gunny bag was identified by P.Ws.3, 4 and 5 in Court as M.O.I and the sample packet as M.O.II. The seizure list with regard to seized ‘ganja’ has been marked as Ext.2 and the option letter issued to the appellant by P.W.5 has been marked as Ext.1/1 and the signatures of the appellant has been proved as Ext.1/2 and Ext.1/3 by P.W.5. P.W.5 also deposed that he handed over the brass seal used in sealing the packet to witness Krushna Chandra Sahu who has been examined as P.W.8. P.W.8 deposed that he had a sweet–meat stall at New Bus stand Berhampur and about one year and four months back seeing a gathering near the sweet- meat stall when he proceeded to the spot found ganja to have been recovered which were seized. P.W.8 also deposed that the ganja was weighed, packed and sealed and the brass seal used was handed over to him which he produced in the Court while deposing and the same was marked as M.O.III. P.W.8 also proved the zimanama in respect of the brass seal which was given in his zima as Ext.5 and his signature thereon proved as Ext.5/2. P.Ws. 3, 4 and 5 were subjected to cross- examination by the defence but their evidence about recovery of 5 Kilograms of ganja from the possession of the appellant could not be demolished and nothing could be brought out from their mouth so as to discard their evidence with regard to the search and seizure in this case. On the other hand their evidence not only lends overwhelming corroboration to the case of the prosecution on the factum of search and seizure but also establishes the fact that 5 Kilograms of ‘ganja’ 9 were recovered from the exclusive and conscious possession of the appellant. P.W.7 deposed that he was the I.I.C. of Baidyanathpur Police Station on 7.5.2002 and around 2 P.M., he received V.H.F. message from the City Control Room, New Bus stand Berhmapur that one unknown person was carrying contraband ganja in a gunny bag which has been detained by the Traffic constable, Trilochan Dash (P.W.1) in the New Bus stand. P.W.7 also deposed that he received this information from Sub-Inspector, Sandhyarani Sahu (P.W.2) and accordingly he entered those facts in Station Diary Book of the Police Station vide Entry No. 178 dated 7.5.2002 and directed S.I., Dilip Kumar Das to proceed to the New Bus stand to verify the truth or otherwise of the said information. The Station Diary Entry No. 178 dated 7.5.2002 has been marked as Ext.9. It is also the evidence of P.W.7 that constable Gourahari Nayak was also deputed by him to the spot along with the S.I. of Police, Dilip Kumar Das. It is also seen from the evidence of P.W. 7 that S.I., Dilip Kumar Das presented the plain paper F.I.R. before him which he had drawn up at the spot and P.W.7 also deposed that P.W.5 produced the gunny bag containing ‘ganja’ and two sample packets before him which he resealed and as per his direction, S.I., Niranjan Behera who was in-charge of the Police Station Malkhana kept the seized ‘ganja’ and sample packets in Police Station Malkhana. after entering those facts in the Malkhana register. The extract of entry No. 80 of the Malkhana Register has been proved as Ext.10. P.W.7 also deposed that regarding the case he submitted a detailed report to the S.P., Berhampur and the carbon copy of the said report has been marked as Ext.11. The evidence on record establishes 10 that all mandatory requirements of law with regard to the search and seizure to have been followed and also with regard to the safe custody of the seized property. The evidence of P.W.6 another Sub-Inspector of Police is only on the seizure of Station Diary Book of Baidyanathpur Police Station by the Inspector of Police, Sri B.D.Swain, the I.O. which was released in his zima vide zimanama Ext.8 which he produced before the Court and the entry No. 178 dated 7.5.2002 has been proved by him as Ext.9. P.W.9 is the I.O. of this case. P.W.9 deposed that the seized samples and bulk ‘ganja’ were kept in the Police Station Malkhana by S.I. of Police, Sri N.Behera after making necessary entry in the Malkhana register. It is also seen from the record that the sample ganja packet which was sent for chemical examination was found to be flowering and fruiting tops of cannabis plant known as ganja and the report of the chemical examiner has been marked as Ext.14. 9. Regarding safe custody of seized ‘ganja’ as well as sample packet the evidence of P.W.7 and P.W.9 the I.Os. suffers from no infirmity. Besides that Ext.14 discloses that the seal with impression on the sample packet tallied with the seal impression which was forwarded by the S.D.J.M., Berhampur. The carbon copy of the forwarding letter of the S.D.J.M., Berhampur to the Deputy Director, R.F.S.L., Berhampur has been marked as Ext.12. There is nothing on record to show that if the seal in question was tampered with. It is also the evidence of one independent witness, namely, Krushna Chandra Sahu (P.W.8) that the brass seal used in sealing the ‘ganja’ packet and sample packets were handed over to him with a direction 11 to produce the same as and when would be required and he produced the same before the Court from his possession when he deposed that on 29.8.2003. The record also shows that the accused was produced before the Special Judge, Berhampur on 8.5.2002 with the prayer of I.O. to send the seized sample packets to R.F.S.L. for chemical examination. There is absolutely no evidence on record to show if at any stage the ganja packet or sample packet were tampered with. On the other hand, it is the evidence of P.W.7, who was then I.I.C., Baidyanathpur Police Station that when he received the ‘ganja’ packet and sample packets before keeping it in the Malkhana he had re- sealed them and as per his direction those were kept in the police Malkhana after making necessary entries in the Malkhana register of the Police Station. 10. I have found out from the impugned judgment, the learned Special Judge-cum-Second Addl. Sessions Judge, Berhampur has properly appreciated the evidence on record and recorded his finding based on legal evidence on record and I do not find any reason to take a different view in the matter. 11. As I have already discussed above, the evidence of the witnesses, namely P.Ws.1, 3, 4 & 5 which have gone totally unchallenged clearly establishes the guilt of the appellant that from his possession i.e. conscious possession 5 Kilograms of ‘ganja’ were recovered and that all due procedures with regard to the search and seizure to have been meticulously followed by the P.W.5 in effecting such search and seizure. There is no material on record to dis-believe the evidence of P.Ws.1 and 3 to 5 as they being responsible 12 Government servant and having no axe to grind against the accused appellant would be deposing falsely. Thus, it cannot be said that the search and recovery in this case were in any way and in any manner vitiated. 12. In the aforesaid premises, on a thread bare analysis of evidence on record, I do not find any infirmity in the impugned judgment and the sentences awarded to the appellant. Accordingly, there is no merit in this appeal and while confirming the order of conviction and sentences, the appeal stands dismissed. ..………………. B.K.Misra, J. Orissa High Court, Cuttack The 23rd August, 2011/RNS