Hemlal Chandrakar vs State Of Orissa

S. K. Mishra, J

In this CRLA, the convict has assailed the correctness of the judgment of conviction and order of sentence dated 28.01.2014 passed by the learned

Special Judge, Nuapada in Special Act Case No.01 of 2013, whereby he has been convicted and sentenced to undergo R.I. for eleven years and to

pay a fine of Rs.1,00,000 (rupees one lakh only), in default, to suffer further R.I. for one year for commission of offence under Section 20(b)(ii)(C) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the N.D.P.S. Actâ€​ for brevity).

Shorn off unnecessary details, the prosecution case in short is that on 13.02.2013 the Inspector- In- Charge, Jonk Police Station (P.W.14) received

a telephonic information from an unknown source that the accused was in possession of huge quantity of Ganja in his house at village Sareipali. He

was going to dispose of the same. P.W. 14 to that effect making an entry in the station diary vide entry No.314 dated 13.02.2013 directed the Sub-

Inspector (P.W.13) to proceed to the spot along with available staff to verify the information and workout the clue. Accordingly, P.W.13 along with

staff proceeded to the spot by the Police Jeep. On the way, P.W.13 picked up two witnesses to assist her in the investigation. On arrival in the

occurrence village, P.W.13 contacted the source who identified the accused and his house to her. To avoid of delay without any search warrant,

P.W.13 along with her staff searched the house of the accused. The accused attempted to escape, but he was caught and when asked, he denied

possessing of the Ganja. Search being conducted in his house, 13 numbers of polythene bags containing Ganja were recovered from the first room of

the up-stair of his house. P.W. 13 procured the weighman P.W.3 and his weighing machine through the Havildar P.W.6. She arranged the plastic

sheet (Dari) through P.W.10, the Homeguard. She also procured the investigation kit, weighman and polythene sheet to the accused. She got the

polythene sheet spread on the floor of the spot room. She opened the polythene bags and dumped the contents of those 13 bags on the polythene sheet

and mixed all the Ganja homogeneously and took weighment of bulk Ganja through P.W.3 weighman. The bulk Ganja was found to be 260 kgs. On

being asked, the accused failed to produce any license or authority for possession of Ganja.

She drew two samples each weighing 25 grams from the Bulk Ganja in two separate polythene packets which she sealed by heat process inserting

paper slips containing her signature and that of the witnesses, weighman and the accused. Then, she sealed all 13 bags containing Ganja. She also kept

the paper slips containing her signature and that of the witness, weighman and the accused in a paper envelop under seal. She got those polythene

bags wrapped with white cloth by stitching process and got those sealed with her personal brass seal taking signatures of the accused and other

witnesses on those bags. She seized the recovered Ganja of 260 Kgs. in 13 bags, prepared seizure list, left her personal brass seal in the custody of

the witness Rajendra Agrawal (PW2) and seized the weighing machine left it in the custody of the P.W.3. She arrested the accused, removed him in

her custody to the Police Station and removed the seized Ganja in 13 polythene bags to the Police Station by arranging a Mini Truck.

On her arrival at the Police Station, she lodged a written report with P.W.14, who got it registered and took up investigation, received the seized 13

bags of Ganja, made entry in the Malkhana register, examined the witnesses and the accused, visited the spot, prepared spot map and produced the

sample in the court which was dispatched to Regional Foreignsic Scientific Laboratory, Berhampur for examination. He got the seized Ganja bags

deposited in Malkhana of the Special Court, sent intimation to Sub-Divisional Police Officer, Nuapada, for lodging of FIR by P.W.13 in this case and

sent a copy to the Director General Narcotics Control Bureau, New Delhi about the seizure of Ganja and to other higher Police Authorities. He seized

the Record of Rights of the occurrence house and left the same in zimma of the wife of the accused and subsequently, he received Chemical

Examination Report and submitted charge sheet against the accused to face his trial.

The defence took the plea of denial and false implication. The appellant also examined two witnesses i.e. D.Ws. 1 and 2 to prove that the house

from which the seized contraband Ganja recovered was inhabited by two of his brothers along with their family. In other words, the appellant took the

plea that the Ganja was not recovered from his conscious and exclusive possession.

In order to prove its case, prosecution examined as many as fourteen witnesses, out of which, P.W.13-K. Priyanka Routray is the S.I. of police.

She raided the house of the appellant and seized the Ganja owing 260 Kgs. After seizure and returned to the police station, he drew plain paper F.I.R.

and she also the informant of the case. P.W.2-Rajendra Kumar Agrawal is the witness to the search and seizure. P.W.3-Rabi Behera is the

weighman who weight the contraband Ganja after the seizure or at the time of seizure. P.W.4-Purna Chandra Majhi is the witness to the seizure of

Malkhana register and Station Diary Book of Jonk Police Station. P.W.1-Biju Nial is Homeguard in whose presence the ROR of the house in question

has been seized. P.W.5- Kumaraj Nial is the witness to the seizure of intimation and original letter to the Inspector-In-Charge and to Sub-Divisional

Police Officer, Nuapada. P.W.6, Havildar, Abhimanyu Goud; P.W.7- Devi Chandra Jain; P.W.8, Homeguard Prekhanlal Sahu; P.W.9-Constable

Nanak Chandra Sahu; P.W.10, Homeguard Hiralal Satnami; P.W.11, A.S.I. Biseswar Panda and P.W.12, A.S.I., Abhimanyu Swain are the police

personnel who participated in the raid of the house of the accused, recovery and seizure made thereof. P.W.14-Jaya Kumar Pattanaik is the

Inspector-In-Charge of Jonk Police Station, who happens to be the Investigating Officer. He took over charge from P.W.13 after lodging of the F.I.R.

and after completion of investigation placed charge- sheet against the appellant.

As described above, the accused examined two of his younger brothers as D.W.1-Omprakash Chandrakar and D.W.2-Chetanlal Chandrakar.

Learned Special Judge, Nuapada framed the point of determination as to:- Whether on 13.01.2013 at about 7.15 AM at village Sareipali the

accused illegally possessed Ganja weighing about 260 Kgs. in thirteen polythene bags?

In this case, though all the independent witnesses in essence they are not official either police or otherwise have not supported the case of the

prosecution, but they have been cross-examined by the prosecution with respect to their previous statement after taking permission of the court under

Section 154 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Actâ€​ for brevity).

Learned Special Judge, Nuapada has come to the conclusion that the contraband Ganja was in conscious and exclusive possession of the appellant

basing on the statements of the official witnesses that seizures were made from the rooms situated in the first floor of the house and D.W.2 has

admitted that the rooms in the first floor were in the occupation of the appellant.

Placing much emphasis on the question of inability of the prosecution to establish the conscious and exclusive possession of the contraband by the

appellant, learned counsel for the appellant argued that the prosecution must stand on its own legs and it cannot take help of the witnesses of the

defence.

Learned Additional Government Advocate submitted that from a reading of the testimonies of different official witnesses and D.W.2, it is amply

clear that the contraband Ganja was in conscious and exclusive possession of the appellant and, therefore, he has rightly been convicted and

sentenced by the learned Special Judge, Nuapada. Learned Additional Government also submitted that there is no requirement of interference in this

matter by the Appellate Court.

The question of conscious and exclusive possession of the contraband Ganja has been discussed by the learned Special Judge, Nuapada in

paragraphs 9 and 10 of the impugned judgment. Learned Special Judge, Nuapada has taken into consideration the evidence of P.W.13 and other

witnesses including the Investigating Officer, P.W.14. P.W.13 has stated that from the room in the up-stair the seizure of Ganja was taken place.

Also, he has taken into consideration the statement of P.W.14 to the effect that the appellant and his brothers are living in the house in question which

is supported by the other official witnesses. The Record-of-Rights has been seized by P.W.14 which shows that the ROR stands in the names of all

the three brothers i.e. the appellant and the two defence witnesses D.Ws.1 and 2. As stated by the D.W.2, the ROR was in possession of the

appellant and he was paying the rent. The learned Special Judge has kept in mind that the house was in the occupation of the family members of the

appellant and that two brothers. However, on reading of the evidence of D.W.2 in cross-examination, learned Special Judge has taken into

consideration the fact that the up-stair was vacant and it was in the occupation of the appellant. Thus, taking into this evidence, learned Special Judge

has held that evidence of D.W.2 has exposed the truth that it is none but the accused was in occupation of the up-stair and other parts of the house

were occupied by D.Ws.1 and 2. He further observed that occupation of the accused of the up-stair proved that he was aware of the stock of Ganja

or he himself had kept the Ganja in the up-stair. The learned Special Judge has further recorded which in my opinion is appropriate to quote as follows:

“10. Xx xx xx The joint recording in the Record of Rights and joint living of the accused and his brothers in the facts and circumstances never create any doubt

about the possession of Ganja by the accused in the up-stair of the house. The plea of the accused that he was not in exclusive and conscious possession of the

seized Ganja does not sustain since presumption can be drawn that he was in possession of the contraband Ganja and such presumption leads to the conclusion that

it is the accused, who illegally kept the huge quantity of Ganja in his house without any authority and license.â€​

In this connection, the learned Special Judge has committed two mistakes while he held that the occupation of the up-stair rooms by the appellant

proves that he was aware of the stock of Ganja and/or he himself kept the Ganja in the up-stair. Law is very well settled that on a fact situation, if two

interpretations are reasonably possible, then the Court has to give due weightage to the interpretation that favours the accused. In this case, the

learned Special Judge, Nuapada has held that either the appellant knew the Ganja was stored in the up-stair or he himself kept the Ganja in the up-

stair. In such a situation, the interpretation that the appellant knew the Ganja was stored in the up-stair has to be accepted. The other interpretation

that the appellant himself kept the Ganja in the up-stair has to be discarded. The inference should be that he was aware of the stock of the Ganja. The

second presumption will not arise. The second error has been committed by the learned Special Judge in holding that since presumption can be drawn

that the accused was in possession of the contraband Ganja and such presumption leads to the conclusion that it is the accused who illegally kept huge

quantity of Ganja in his house without any authority or license. In law there is no such presumption even if Section 114 of the Act provides for

presumption of existence of certain facts which reads as follows:

“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human

conduct and public and private business, in their relation to the facts of the particular case.â€​

So, in this case, the important aspect that is seen in common course of natural events and human conduct. In this context, the evidence of D.W.2

has been relied upon heavily by the learned Special Judge while coming to the conclusion that the appellant was in conscious and exclusive possession

of the Ganja. I considered it appropriate to take note of the entire evidence of D.W.2. He stated that the accused is his elder brother. Along with the

accused, he and his younger brother Omprakash are living in one house premises at Sareipali. The land on which the dwelling house stands has been

recorded in favour of them jointly. He had marked the ROR as Ext.A for reference. He further stated that his family consists of four members, so

also the family of his younger brother consists of four members besides the accused has three members in his family and there is only one common

passage for use of all the families of their brothers. Since much weightage has been given on the cross-examination, I find it apt to quote the exact

words of the of D.W.1 stated in course of his cross-examination.

 “I have not received any notice from the court for giving evidence. I have no knowledge about the nature of offence and the occurrence which took place in

the month of February, 2013 relating to seizure of Ganja. But, I do not know where from Ganja was seized. The Ext.A comprises of two plots. The house has been

constructed on both the plots and the family members were staying in the house of both the plots. There is a first floor having rooms in the occupation of accused

but lying vacant. I am in visiting term with the accused and with good terms. It is not a fact that I have stated false hood as the accused is my elder brother and he is

staying in the first floor of the house alone. We all are living separately. The accused is paying in the rents of the disputed house.â€​

However, P.W.13 stated in oath that during her search, thirteen bags of Ganja containing in big polythene bag were found at the up-stair of the

house. She does not state that it was stored in a room. So, there appears to be some confusion in this aspect of the case and once doubt is raised, the

accused shall get the benefit of the same. P.W.11-Bijeswar Panda, the ASI of Jonk Police Station states that during search thirteen bags were found

on the floor of the first room of the house of the accused.

In view of this contradiction, the case of the prosecution became suspect.

Thus, conspectus of the material available on record and in view of the discussion resorted to above, this Court is of the opinion that there is

reasonable doubt in this case of the prosecution and the benefit of the same should be extended to the appellant. Hence, I grant the benefit of doubt to

the appellant and hold that the prosecution has failed to prove its case of conscious and exclusive possession of contraband Ganja owing 260 Kgs. by

the appellant beyond all reasonable doubt.

Resultantly, the criminal appeal is allowed. The impugned judgment of conviction and order of sentence dated 28.01.2014 passed by the learned

Special Judge, Nuapada in Special Act Case No.01 of 2013 convicting the appellant for commission of offence under Section 20 (b)(ii)(C) of the

N.D.P.S. Act and sentencing him to undergo R.I. for eleven years and to pay a fine of Rs.1,00,000 (rupees one lakh only), in default, to suffer further

R.I. for one year is set aside. The appellant is acquitted of the said charge.

Since the appellant, namely, Hemlal Chandrakar is in jail custody, he be set at liberty forthwith, unless his detention is required in connection with any

other case.

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