LAXMAN JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant assails his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for Short, 'the Act') and sentence of RI for ten years and fine of rupees one lakh, in default to undergo RI for two years and six months.

(2.) Prosecution case is, on 3-1-1991 PW 5, then Officer-in-Charge of Nayagarh Police Station, received a reliable information that the appellant was possessing opium in his residential house at village Harekrushanapur under Nayagarh Police Station in the district of Puri. After making a station diary entry in regard to this information he along with PW 2, the SI of Police, proceeded to the village around 3 a.m., reached the house of the appellant and gave his identity and the purpose of the search. He also asked the appellant of his option to be searched in presence of a Gazetted Officer, but the appellant did not opt for any such search and, therefore, PW 5 in presence of the witnesses conducted the search himself. Entering the house along with the appellant he recovered four polyethylene packets each containing different quantities of opium and the total on weighment was found to be Kg. 1.750 grams from inside the bed room of the appellant. After observing all formalities of search and seizure relating to taking of samples etc. he investigated into the case, examined witnesses and after completion of investigation submitted charge-sheet. The appellant was tried and convicted as stated above. The appellant denied the prosecution allegation. In his 313 statement he pleaded that on account of the rivalry between one Narasingha Khanda, an influnential person of the village, he was falsely implicated at his instance. He denied the search of his house in question and the consequent seizure of any opium from the house.

(3.) Mr. P. K. Mishra, learned counsel for the appellant, challenges the order of conviction mainly on three grounds i.e. (i) admittedly when there were other occupants of the house in question, the prosecution of the appellant alone for allegedly possessing that quantity of opium was illegal, (ii) noncompliance of the mandatory provisions with regard to search and seizure as provided under Sections 42 and 50 of the Act, and (iii) discrepancy in the quantity of the samples collected from the opium seized at the spot and the quantity received by the Chemical Analyst. Mr. Debasis Das, learned counsel for the State, on the other hand, supports the judgment if conviction and further submits that there has been due compliance of the provisions of the Act for which there should not be any interference by this Court. The respective contentions need examination.