Decided on March 15,2021

Sibaram Swain Appellant


S. K. Sahoo,J. - (1.) The appellants Sibaram Swain (CRLA No.580 of 2013) and Ratnakar Swain (CRLA No.44 of 2014) faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a) C.C. No.11 of 2011(N) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act'). They were found guilty by the learned trial Court of the offence charged and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for a period of one year vide impugned judgment and order dated 27.11.2013. Since both the criminal appeals arise out of one common judgment and order of conviction, with the consent of learned counsel for the respective parties, those were heard analogously and disposed of by this common judgment.
(2.) The prosecution case, in short, is that Sri Sarat Chandra Bhanja (P.W.3), Sub-Inspector of Excise, E.I. & E.B., Unit-II (S.D.), Berhampur received a credible telephonic information on 04.07.2011 at about 6.00 a.m. about transportation of Ganja in an auto rickshaw near Ambapua and Gopalpur junction area and on getting such information, he reduced the information into writing and informed his superior authority i.e. the I.I.C. of Excise Sri S.P. Gantayat vide Ext.7 and as per the direction of Sri Gantayat, P.W.3 proceeded to the spot to verify the correctness of the information. Four excise constables including P.W.2 and one A.S.I. of Excise also accompanied him. The prosecution case further reveals that near Gopalpur junction area, when they were performing patrolling duty, around 11.00 a.m. an auto rickshaw bearing registration no.OR-07N-1450 was found coming towards Berhampur town from Ambapua side. On suspicion, the said auto rickshaw was detained in which one person was found on the rear seat and another person was found driving the vehicle. On being asked, the driver disclosed his name as Sibaram Swain (appellant in CRLA No.580 of 2013) whereas the other person sitting on the rear seat gave his identity as Ratnakar Swain (appellant in CRLA No.44 of 2014). It is the further case of the prosecution that the auto rickshaw being detained was found to be carrying four airbags on the rear seat, which were by the side of the appellant Ratnakar Swain and one jerry basta was found on the foot rest of the rear seat. Both the appellants, on being asked by P.W.3 about the contents of airbags and jerry basta, kept mum. On suspicion, P.W.3 disclosed his intention to search the airbags and jerry basta. P.W.1, an independent witness was then called to remain present during the proposed search and seizure. It is the further case of the prosecution that the appellants were then asked by P.W.3 as to whether they wanted the search to be conducted in presence of an Executive Magistrate or Gazetted Officer. The appellants opted to be searched by P.W.3 and such options were given in writing vide Exts.3/1 and 4/1. Thereafter, on observing other formalities such as giving of personal search etc. to the appellants and others, when no incriminating item was found from the possession of P.W.3, the airbags and jerry basta were searched by bringing those from the auto rickshaw. All the four airbags and jerry basta being opened were found to be containing Ganja. P.W.3 conducted preliminary tests such as by rubbing on the palm and burning a little portion out of the contents found inside the airbags and jerry basta and from his experience, he could ascertain that it was ganja. Weighment being made, four airbags were found to contain 14 Kgs., 16 Kgs., 17 Kgs. and 13 Kgs. of ganja whereas the jerry basta was found to be containing 10 Kgs. of ganja. The airbags and basta were then sealed by using paper slips and the brass seal of P.W.3 obtaining the signatures of others including the appellants. The said brass seal was then given in zima of P.W.2 under proper zimanama (Ext.5/1). P.W.3 next prepared the seizure list (Ext.1/1) to that effect. The appellants being arrested were directly produced before the Court of learned Special Judge, Berhampur on the same day. P.W.3 made a prayer before the Court for collection of samples from the airbags and jerry basta and for their onward dispatch to DECTL, Berhampur at Chatrapur, which being allowed, learned S.D.J.M., Berhampur collected samples from airbags and jerry basta and those were forwarded for chemical examination. The report came to the same effect as was the finding of preliminary test of P.W.3 so far as the contraband items are concerned. P.W.3 also ascertained the ownership of the vehicle standing to be in the name of the appellant Sibaram Swain. P.W.3 thereafter submitted a preliminary report describing the details of such seizure and other follow up action in that regard. Thereafter, on completion of investigation, P.W.3 submitted prosecution report against the appellants to stand their trial.
(3.) The appellants on being charged under section 20(b)(ii)(C) of the N.D.P.S. Act for unlawful possession of 70 Kgs. of contraband ganja, refuted the charge, pleaded not guilty and claimed to be tried.;

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