CHITARANJAN DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant, in this criminal appeal, has challenged the judgment and the order of conviction dated 11.1.2002 passed by the learned Sessions Judge -cum -Special Judge, Cuttack in G.R Case No, 343 of 2000 (Trial No. 4 of 2000) finding the Appellant guilty under Section 20 (b) (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "N.D.P.S. Act") and convicting him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/ -, in default, to undergo RI. for a further period of one year.

(2.) THE prosecution case in short is that on March 12, 2000 on the basis of Station Diary Entry No. 295 made at Lalbag Police Station, the police personnel along with Shri Sapan Chandra Roy, the Executive Magistrate proceeded to investigate if the accused -Appellant was possessing Ganja and selling the same to different persons near his house situated at Daraji Sahi. On arrival they found that the Appellant was carrying a drum and moving on the road. The S.I. of Police (P.W. 1) detained him and disclosing his identity expressed his intention to search him in presence of the Executive Magistrate (P.W. 3) on the suspicion that he was in possession of Ganja and with his due consent and in presence of witnesses, searched the Appellant and the drum which he was carrying. P.W. 1 also intimated P.W. 5 who was an I.P.S. Officer about the search and he immediately arrived at the spot. It is asserted that the search was conducted after observing all formalities. Though nothing could be found from the wearing apparels of the Appellant and from his person, yet on search of the drum which he was carrying Ganja wrapped in polythene was seized. On weighing, the same came 10,'1.8 K.Gs. Two samples (A -1 & A -2) weighing 100 gMs. each were collected, packed and sealed in presence of witnesses. The Executive Magistrate also put his seal on each of the packets and the stickers were pasted on the packets with the signature of the Executive Magistrate and the witnesses. The seizure list Ext -2 was prepared, the Appellant was arrested and the seized Ganja was brought to the police station. Thereafter the F.I.R (Ext -3) was lodged before the Inspector -in -Charge of Lalbag police station who kept the seized articles in Malkhana. On 13.3.2000, the Investigating Officer produced the accused -Appellant and the seized materials before the learned S.D.J.M., Cuttack. As per the direction of the S.D.J.M., the seized articles were again produced before' him on 14. 3.2000, out of which the sample A -1 was sent to the Chemical Examiner. After analysis, the sample was found to be Ganja and finally charge -sheet was submitted against the accused -Appellant.

(3.) TO substantiate its case, the prosecution examined six witnesses out of whom all are police officers except P.W. 3, the Executive Magistrate who was present at the time of seizure. The prosecution also exhibited six documents including Ext -6, the chemical examination report and the seizure list Ext -2 containing the signature of the Executive Magistrate. The written consent given by the accused -Appellant to conduct the search was exhibited as Ext -1.