Orissa High Court
Premananda Sahu vs State Of Odisha on 3 August, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 229 of 1993
From an order dated 28.06.1993 passed in S.T. Case No. 263 of
1991 of learned Sessions Judge, Puri.
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Premananda Sahu ...... Appellant
-Versus-
State of Odisha ....... Respondent
Advocate(s) appeared in this case :-
_______________________________________________________
For Appellant : M/s. S. Sahoo, Amicus Curiae
For Respondent : Mr. S.K. Mishra,
[Addl. Standing Counsel]
_______________________________________________________
CORAM:
MR. JUSTICE SASHIKANTA MISHRA
JUDGMENT
03.08.2023 SASHIKANTA MISHRA, J.
The appellant questions the correctness of the judgment passed by learned Sessions Judge, Puri on 28.06.1993 in S.T. Case No. 263 of 1991 whereby he was convicted for the offence under Section 47(a) of Bihar and Orissa Excise Act and was sentenced to undergo R.I. for six months and to pay fine of Rs.500/-, in default, to undergo R.I. for one and half months.
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2. Prosecution case, briefly stated, is that on 20.07.1987, the SI of Excise, Sadar Mobile, Puri received reliable information regarding possession and sale of Ganja and other articles by the accused in his shop at village Narada. He proceeded to the village and reached there around 1.00 P.M. The accused was present in his shop. The Excise Sub-Inspector arranged three witnesses and conducted a search in the shop room of the accused and found one jerry packet containing 60 grams of Opium, one paper packet containing 150 grams of non- duty paid Ganja, one paper packet containing 275 grams of Bhang besides some cash. He seized the articles after weighing them. As the accused had no licence or permit to possess or sell the articles, he was arrested and on 03.11.1987 prosecution report under Section 9(a) of the Opium Act and 47(a) of the Bihar and Orissa Excise Act was submitted. The accused having taken the plea of denial, charge was framed for the offence under Sections 18 and 20(b)(i) of the NDPS Act and Sections 47(a) of the Bihar and Orissa Excise Act.
3. To prove its case, prosecution examined three witnesses. P.Ws. 1 and 2, who were the witnesses to Page 2 of 8 search and seizure did not support the prosecution and turned hostile. P.W. 3 is the IO. Basing on his sole testimony, which the trial court found to be without any blemish and trustworthy, held the accused guilty of the alleged offences and convicted and sentenced him as already stated hereinbefore.
4. Heard Miss Sradhanjali Sahoo, learned Amicus Curiae appointed by the Court and Mr. S.K. Mishra, learned Additional Standing Counsel for the State.
5. Miss Sahoo has raised two grounds to assail the impugned order, namely, (i) the conviction is based on the sole testimony of an official witness and (ii) no chemical examination report was produced or proved that the seized articles were Opium, Bhang and Ganja. Miss Sahoo therefore contends that without the basic foundation the prosecution case cannot be said to have been proved.
6. Mr. S.K. Mishra, learned Additional Standing Counsel, on the other hand, submits that law is well settled that conviction can be based entirely on the version of the official witnesses, if the same is found to be reliable and trustworthy. He further contends that even without the chemical examination report, the articles were Page 3 of 8 proved to be contraband Opium, Bhang and Ganja by the long experience of the Investigating Officer. He, therefore, contends that the impugned judgment does not warrant any interference.
7. Before going to the merits of the contentions raised before this Court, it is seen that there were three witnesses to seizure as per the prosecution report of whom only two were examined as witnesses during trial. One Subala Mallick was examined as P.W.1 while one Lokanath Jethi was examined as P.W. 2. Both of them turned hostile and did not support the prosecution at all. This leaves the Court with the version of only the I.O. of the case, who was examined as P.W.3. In his evidence, he stated in detail about all the steps taken by him upon getting reliable information regarding possession and sale of excisable articles by the accused. He specifically testified that from the smell and colour and his departmental experience of twelve years, he could identify the excisable articles as Opium, Bhang and Ganja respectively. He was cross-examined in detail. Perusal of the cross-examination reveals that nothing was elicited Page 4 of 8 from him that could even remotely question the correctness of his testimony.
8. Coming to the first ground raised by learned Amicus Curiae, it is trite law that it is the quality of evidence and not quantity that matters. Therefore, only because evidence of only one witness was available, it cannot ipso facto be the said that the prosecution case was to be rejected. Secondly, it has no where been even suggested to P.W.3 as to if he had any inimical relationship with the accused so as to implicate him falsely in the case. The contention raised in this regard is therefore, not acceptable.
9. As to the other ground raised by learned Amicus Curiae that in the absence of any chemical examination report, the seizure of excisable articles as per the prosecution case could not have been taken to be proved, this Court is not inclined to accept the same for the reason that the I.O. having long experience in investigating excise cases must be deemed to have the requisite knowledge and skill to determine the nature and type of the seized articles. In fact, as already stated P.W.3 clearly deposed that he had departmental experience of Page 5 of 8 twelve years and therefore, it is not unreasonable to suppose that he possessed the required ability and skill as to what the seized articles were. In the present case, he has indentified the seized articles as Opium, Bhang and Ganja and nothing has been suggested by the defence, apart from a mere denial that the articles were something else, if not Opium, Bhang and Ganja.
10. A perusal of the impugned judgment reveals that the trial court has referred to some judgments of this Court, namely, Abdul Gaffar vs. State of Orissa, reported in 63 (1987) CLT 370, Karpura Senapati vs. State, reported in 64 (1987) CLT 763 and Ramasis Prasad v. State, reported in 1991 (II) OLR 169. The basic principle laid down in these decisions is that chemical examination report is not a must to identify the seized intoxicant substances and that if the evidence of the Excise Officer is credible, the same can be acted upon to record a finding of guilt. In the instant case, this Court has independently scanned the evidence of P.W.3 and is satisfied that his version is reliable and trustworthy. In such view of the matter, the contentions raised by learned Amicus Curiae has no legs to stand.
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11. Learned Amicus Curiae has made an alternative submission that since the alleged offence had taken place way back in the year, 1987 when the accused was aged about 35 years, he should not be visited with any further penalty than that already undergone by him as more than 36 years have passed in the meantime and he is aged more than 72 years. Learned State Counsel fairly submits that it is for the Court to take a decision in this regard.
12. Having regard to the fact that the occurrence took place more than 36 years ago and the appellant is presently aged about 72 years, ends of justice would be best served if the appellant is released as per the provision of the Probation of Offenders Act instead of being directed to serve the remaining part of the sentence at this distance of time.
13. In the result, the appeal is allowed in part. The impugned judgment of conviction is hereby confirmed but the sentence is modified to the extent that instead of serving the sentence imposed by the trial court, the appellant shall be released as per Section 4 of the PO Act.
14. For the above purpose, the appellant shall appear before the trial court on 4th September, 2023 for receiving Page 7 of 8 further instructions. It is made clear if the appellant does not appear on the date fixed, the original sentence shall revive. This order be communicated to the appellant in his permanent address as also to the court below. The court below shall also issue notice to the appellant as regards the date of appearance.
15. Before parting, this Court records is appreciation for Miss Sradhanjali Sahoo Amicus Curiae and Mr. S.K. Mishra, learned Additional Standing Counsel for rendering able assistance to the Court. The professional fee of Miss Sahoo is fixed at Rs. 10,000/-.
(Sashikanta Mishra) Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 08-Aug-2023 20:10:53 Page 8 of 8