Bibek Pal alias Prasant Arora vs State of Orissa

A. Pasayat, J.—These two appeals are interlinked and therefore, are disposed of by this common judgment, which shall govern each one of them.

Appellant in each case challenges his conviction for the alleged commission of offence punishable u/s 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ''the Act'') and sentence of rigorous imprisonment for five years, and fine of Rs. 5.000/- with default sentence of rigorous imprisonment for a further period of six months.

Accusations which led to the trial of the Appellants in two appeals (hereinafter referred to as ''the accused'') essentially are as follows:

On 6-1-1992 at about 11. 10 a.m. the Inspector-in-charge of Jeypore Town Police Station(PW 5) got an information from Boipariguda Police Station over V.H.F. that one Ambassador car suspected to be carying contraband articles was proceeding towards Jeypore. He directed Sub-Inspector of Jeypore Police Station (PW 8) to go to Brahmunigaon check gate. Accordingly PW 8 went there along with PWs 1 and 4 at about 11-30 a.m. On reaching at the check gate, they found one Ambassador car bearing registration No. OR-10/0452 coming from Boipariguda side. The car was detained near the check gate at Barhmunigaon, and was brought to the office of Tahasildar, Jeypore (PW 3), as the local people'' did not come foward to help them in the process of search and seizure. PW 8 searched the car in presence of the Police Officers, the Additional Tahasildar, Jaypore and the local witnesses in the Tahasil Office premises, and recovered four gunny bags containing ganja, one air bag containing ganja, motor-cycle basket containg ganja, one country made pistol loaded with live catridge, five Nos. of live catridges, one tin metal and one packet containing chilly powder. All these were seized under seizure list (Ext. 1). Thereafter PW 8 drew up plain paper FIR (Ext. 2/2). The Inspector-in-charge registered it, and directed PW 8 to continue with the investigation.

Ten witnesses were examined to further the prosecution version. Of them PW 8 is the Investigating Officer, and PWs 1, 4 and 7 are the witnesses to seizure of the articles. PW 10 is the Sub-Inspector of Police of Jeypore Town Police Station, who was then in charge of the Malkhana of the Town Police Station. Accused persons pleaded innocence. Four witnesses were examined in support of the defence version, of false implication.

The accused persons were charged for commission of offences punishable u/s 20(b)(i) of the Act for possessing and transporting 204 K. Gs. of ganja, and u/s 27(1-B) of the Arms Act for possession of a country made pistol with catridge. The learned Additional Sessions Judge found each one of the accused to be guilty u/s 20(b)(i) of the Act and sentenced as indicated above, but acquitted them of the other charges.

Though in support of the appeal -many points were urged main plank of the Appellants'' argument was that the sample sent for analysis by the chemical examiner as evidence from Ext.10 weighed 25 grams. From Ext. 11 it appears that 21 packets each weighing 25 grams were received for examination. But the evidence of PW 8, the Seizing Officer is to the effect that he took sample weighing 50 grams from each of the Ganja bags, dicky and air bag and kept the same in separate packets. This according to the Appellants shows that the article seized was not sent for chemical examination, and something else was sent which was examined by the chemical examiner. It is further staled that the seized articles were not produced in Court which is a vital defect in the prosecution case The packets containing the samples sent for chemical analysis were never brought before the Court and were never identified before the Court by the prosecution.

According to learned Counsel for State PW 2 has categorically stated that 25 grams were taken from each packet and was sealed. He was a witness to the seizure His stand is that there is no infirmity and vulnerability.

PW 2 has stated that one Sub-Inspector of Police kept sample ganja weighing about 25 grams by taking the same from each of the 21 packets containing ganja. The sample ganja was kept in 21 separate packets which were sealed. The evidence of PW 8, the Seizing Officer is to the effect that gunny bags, jery bags, dicky and air bag contained ganja weighing 20 quintals and four K. Gs. He claimed to have taken sample ganja weighing 50 grams from each of those ganja bags, dicky and air bag and kept the same in separate packets, which he sealed in presence of the Additional Tahasildar and the witnesses. Confusion about 25 grams and 50 grams assumes importance in view of his statement in cross-examination that he has not specifically mentioned in the plain paper FIR (Ext. 1) that 50 grams of sample ganja was taken from each packet but he has mentioned to have taken sample ganja from each packet ganja seized from the car. Strangely the prosecution has not made any attempt to reconcile the discrepancy about quantity of samples collected. PW 2 has stated that each of the samples collected contained 25 grams. But the Seizing Officer who is the person responsible for investigation and seizure has stated that 50 grams for each of the samples to have been collected not only at one place but at two places, one in his examination in-chief and Anr. point of time during cross-examination. While such contradiction exists, it has to be noted that there must be positive material before the Court that the sample analysed by the chemical examiner was one which was taken from the alleged seized articles, from the custody of the accused. In the instant case, there is discrepancy which I consider to be vita". In that view of the matter, I do not find it necessary to go into other contentions of the learned Counsel for accused-Appellants.

In the result, the appeals are allowed, the order of conviction and sentence passed by the learned Additional Sessions Judge, Jeypore is st aside. The accused Appellants be set at liberty forthwith unless they are required to be in custody in connection with any other case.

It is unfortunate that in a case which involved such a huge quantity of contraband articles has been handled by the prosecuting agency in such cavalier manner. Narcotic drugs and psychotropic substances pose unfathomable problems for the society. Offences relatable to such drugs and substances are to be dealt with iron hands. Any remiss in such cases is unpardonable. Unfortunately requisite care and caution has not been taken in the case at hand.