HIGH COURT OF ORISSA: CUTTACK. Criminal Appeal No136 of 2005 and Criminal Appeal No.506 of 2005 From the judgment and order dated 2.12.2004 passed by Shri K.C.Patnaik, B.Sc.LL.B., Sessions Judge-cum-Special Judge, Koraput at Jeypore in Criminal Trial No.217 of 2003 arising out of G.R. Case No.494 of 2003 of the court of S.D.J.M., Koraput. --------- Sushant Das @ Subrat (in CRLA No.136 of 2005) Modi Satyanarayan Reddy (in CRLA No.506 of 2005) …… Appellants. - Versus- State of Orissa ( in both the appeals) …… Respondent. For Appellants : M/s Goutam Das, R.Rout,G.Rath, P.S.Nayak, Sk.Safarulla, N.Nishank. M/s T.K.Acharya, B.Pasayat, S.Pradhan, M/s. L.Samantaray, P.K.Mohanty, S.K.Das, S.R.Mohanty, S.P.Dash, P.C.Mohanty, M.Panda, M/s S.S.Ray and B.Sahoo M/s Arijeet Mishra, S.K.Jena, B.Nayak, Miss S.Biswal,A.Mishra M/s D.R.Bhokta and H.K.Behera, S.S.Ray. M/s M.R.Mohapatra, P.K.Pali, R.Jena and P.K.Mohapatra For Respondent : Additional Govt. Advocate. --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL ------------------------------------------------------------------------------------ Date of hearing- 18.1.2011 :: Date of judgment: 20.1.2011 ------------------------------------------------------------------------------------- B.K. PATEL, J. Both the appeals are directed against the judgment and order dated 2.12.2004 passed by the learned Sessions Judge, Koraput in Criminal Trial No.217 of 2003 convicting the appellants under section 20(b)(2)(c) of the Narcotic Drugs and Psychotropic Substances Act,1985 ( for short, ‘the NDPS Act’) and sentencing each of them to undergo rigorous imprisonment for ten years and fine of rupees one lakh, in default to undergo rigorous imprisonment for two years. 2. Prosecution case is as follows: Occurrence took place on 5.6.2003. During the period of occurrence P.W.8 was the Officer-in-Charge whereas P.W.7 a Probationary Sub-Inspector and P.W.4 a Literary Constable were attached to Semiliguda Police Station. At about 11 A.M. P.W.8 got reliable information regarding movement of a white Maruti Car bearing registration number JH-09-A-3973 loaded with Ganja from Nandapur side towards Semiliguda. P.W.8 made Station Diary Entry regarding receipt of information and proceeded to village Janiguda along with P.Ws.2, 7 and other police personnel after sending report regarding the information to the Circle Inspector of Police, Sunabeda and Superintendent of Police, Koraput. At about 11.30 P.M. the above said Maruti Car approached from Nandapur side. P.W.8 stopped the 2 vehicle and found the appellants sitting in the car. P.W.8 ascertained their identity. As P.W.8 found a number of blue polythene packets on the back seat of the car emitting smell of Ganja, he expressed to the appellants regarding his intention to search them and the car. He also asked them regarding their option to be searched in presence of police, Gazetted Officer or Executive Magistrate. The appellants having expressed their willingness in writing to be searched in presence of Executive Magistrate, P.W.8 sent requisition to the Sub- Divisional Magistrate for deputation of an Executive Magistrate and kept the car and appellants detained. Next morning at about 8.30 A.M. P.W.5 Tahasildar, Pottangic-cum-Executive Magistrate arrived at the spot in whose presence P.W.8 took personal search of the appellants. Articles recovered from their possession were seized under seizure list Exts.2 and 3. Thereafter, P.W.8 conducted search of the car and recovered 24 polythene packets containing Ganja weighing 155 Kgs from the car. P.W.8 collected 50gm of Ganja from each packet and prepared 48 sample packets each weighing 25 gm of Ganja. Sample packets as well as recovered Ganja packets were sealed by using P.W.8’s brass seal. Brass seal was kept in zima of P.W.1 an independent witness and thereafter P.W.8 prepared seizure list Ext.1 on which specimen impression of the brass seal was affixed. P.W.8 had availed services of a photographer P.W.6 to take photographs during search and seizure which were effected in presence of independent witnesses P.Ws.1, 2, 3 as well as P.Ws. 4, 5 and 7. Thereafter P.W.8 arrested the appellants, drew up plain paper F.I.R. Ext.13 and took up investigation. On his return to Police Station P.W.8 kept the seized articles and sample packets in the 3 Malkhana. On 6.6.2003 P.W.9, Circle Inspector of Police, Sunabeda took charge of investigation from P.W.8. P.W. 9 forwarded the appellants to court on 7.6.2003 and handed over charge of investigation to his successor- in-office P.W.10 on 9.6.2003. P.W.10 despatched sealed articles to the court. Ganja in sample packets received from the court was subjected to chemical examination with RFSL, Berhampur. On completion of investigation, charge-sheet was submitted against the appellants. 3. Defence plea is one of complete denial. Appellants alleged false implication by police officers. 4. In order to substantiate the charge, prosecution examined ten witnesses, P.Ws. 1 to 10, who had already been introduced in course of narration of the prosecution case. Prosecution also relied upon documents marked Exts.1 to 28 and material exhibits M.Os.I to XLIX. D.W.1 was examined as the only defence witness on behalf of the appellants. 5. In assailing the impugned judgment it was submitted by the learned counsel for the appellants that none of the independent witnesses except P.W.1 supports the prosecution case. It was argued that evidence of P.W.1 is not free from suspicion. It was strenuously contended that prosecution has failed to prove proper sealing and safe custody of the seized articles for which it would not be safe to conclude that what was examined in the laboratory was seized from the possession of the appellants. It was further argued that at the 4 time of search, mandatory provision under Section 50 of the N.D.P.S. Act was not followed. Alternatively, it was argued that since the appellants are in custody since 5.6.2003 and have already suffered imprisonment for about eight years, a lenient view ought to be taken regarding the quantum of punishment so far it relates to default sentence. It was argued that appellants have no criminal antecedence. They have been found guilty of commission of an offence for the first time. Both the appellants are poor persons who could hardly maintain their family. Due to their detention in custody, family members are in distress. Neither of them is in a position to pay the fine amount of rupees one lakh. In such circumstances, it was urged, sentence in default of payment of fine may be reduced. In support of such contention learned counsel for the appellants relied upon the decisions of the Hon’ble Supreme Court in Shanti Lal –vrs.- State of Madhya Pradesh : 2007 (Vol.8) Supreme 263 : (2007)11 SCC 243 and of this Court in Ganeswar Rout and Sarat Kumar Nayak –vrs.- State of Orissa : (2010) 45 OCR 834. 6. As regards the contention with regard to the non- compliance of Section 50 of the N.D.P.S. Act is concerned, it has to be borne in mind that allegation in the case does not relate to recovery of contraband as a result of personal search of the appellants shall not be conducted. Nonetheless, evidence of P.W.8 to the effect that he apprised appellants of their right upon which appellants expressed their option to be searched in presence of an Executive Magistrate gets corroboration not only from evidence of P.Ws. 4 and 7 but also from the contents of F.I.R. Ext.13. In accordance with the option 5 exercised by the appellants presence of P.W.5 Tahasildar-cum- Executive Magistrate, Pattamundai was secured and in his presence appellants were subjected to personal search and the vehicle was also searched. Therefore, the contention is unfounded. 7. Evidence of P.W.8 regarding transportation of Ganja by the appellants in the vehicle from which it was recovered gets corroboration from the contents of the F.I.R. Ext.13 and seizure list Ext.1 prepared as earliest at the spot. Not only police personnel P.Ws. 4 and 7 but also, Executive Magistrate P.W.5 and an independent witness P.W.1 support the prosecution allegation of recovery of Ganja from the car which the appellants were occupying. At the spot itself sample quantities of Ganja were extracted from each of the recovered Ganja packets and sample packets were prepared. Sample packets were sealed by P.W.8’s personal brass seal. Brass seal was kept in zima of P.W.1 after affixing specimen impression of brass seal on the seizure list Ext.1. Sample packets in sealed condition were sent for chemical examination laboratory through court. In his evidence P.W.1 categorically states to have retained the brass seal with him till produced in course of trial when his evidence was recorded on 3.2.2004. It is not disputed that upon examination, sample packets were found to contain flowering and fruiting tops of cannabis plant commonly known as Ganja as per Ext.24, the report received from the Laboratory. Thus, prosecution has cogently established the allegations against the appellants right from the moment when the information was received in the police station till Ganja was seized from their possession and sample packets in sealed conditions were produced in 6 court. On reappraisal of evidence, it is found that finding of the learned trial court is immune from interference. 8. Now dealing with alternative argument regarding reduction of default sentence, it does not appear that any of the appellants had any criminal antecedents prior to implication in this case. In course of hearing on the question of sentence before trial court also it was urged that the appellants were first offenders and that both of them are young persons having their family members to support. Both of them are in custody since they were arrested on the date of occurrence. In similar circumstances, in Shanti Lal –vrs.- State of Madhya Pradesh (supra) the appellant who was convicted for commission of offence under section 18 of the N.D.P.S. Act and was directed to undergo default sentence of three years in default of payment of fine of Rs.1.00 lakh, the Hon’ble Supreme Court directed the appellant to undergo default sentence of six months. Placing reliance on the above cited decision in Ganeswar Rout and Sarat Kumar Nayak –vrs.- State of Orissa(supra) in which the appellants had been convicted for commission of offence under section 20(b)(ii)(c) of the N.D.P.S. Act and were sentenced R.I. for 10 years each and pay fine of Rs.1.00 lakh each , in default, to undergo R.I. for two years, this Court reduced default sentence from two years to six months. 9. Considering the circumstances of the case and the ratio of the above said decisions, it is directed that in default of payment of fine of Rs.1.00 lakh, the appellant would undergo rigorous imprisonment for six months instead of two years as ordered by the learned trial court. 7 10. In the result, both the criminal appeals are allowed in part. While maintaining conviction of the appellants for commission of offence under section 20(b)(ii)(c) of the N.D.P.S. Act and substantive sentence imposed on them, the default sentence is reduced from two years to six months. ….………………… B.K. Patel, J. Orissa High Court, Cuttack, Dated 20th January, 2011/Palai 8