Orissa High Court
Nirmal Chandra Sahoo vs State Of Orissa on 29 January, 1996
Equivalent citations: 1996CRILJ1902, 1996(I)OLR322
JUDGMENT R.K. Dash, J.
1. This petition being one under Section 482, Cr PC is directed against the order of the learned Additional Sessions Judge, Bhubaneswar in S. T. No. 22/445 of 1994 whereby he declined to discharge the petitioner from the offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act').
2. The petitioner, it is alleged, was having 12 K.Gs. of 'Ganja' and 125 grams of opium in this house which the police seized in presence of the witnesses, drew samples therefrom and sent for chemical examination. Upon examination the Analyst reported that one of the sample packets contained partly powdered cannabis leaves (Bhang) with seeds and as regards the other sample packet, he could not find any opium therein. On charge-sheet being submitted, the learned Additional Sessions Judge, framed charge under Section 20(b) of the Act and feeling aggrieved thereby, the petitioner moved this Court in Criminal Misc. Case No. 1018 of 1995. He also filed another petition vide Criminal Misc. Case No. 2501 of 1994 challenging the order of taking cognizance of the offence as aforesaid. Upon hearing the parties, both the Criminal Misc. Cases came to be disposed of by a common order that if a motion is made in relation to framing of charge, the learned Additional. Sessions Judge shall deal with the same in accordance with law and consider whether the plea of the petitioner is acceptable. In view of such order, the petitioner approached the Court below vide Annexure-1 urging that materials on record do not prima facie show that he has committed any offence under the Act. Having heard the parties, the learned Additional Sessions Judge rejected the prayer with observation that in view of the quantity of 'Ganja' seized, prosecution ought to have sent some more quantity for chemical examination and if that had been done, there was possibility of coming to a definite conclusion whether cannabis leaves were accompanied by the flowering or fruiting tops or not. He further observed that in normal course the seized 'Ganja' would be produced during trial and at that stage it could be ascertained whether the same has f lowering or fruiting tops or not and merely on the Chemical Examiner's report it cannot be said at this stage that no offence under Section 20 of the Act has been made out. Feeling aggrieved, the petitioner has filed this case invoking inherent power of the Court to quash the proceeding.
3. The word 'Ganja' has been defined in Section 2(iii)(b) of the Act as follows :
"Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;"
The Act prescribes deterrent punishment and, therefore, strict proof is necessary to bring home the accusation. To make the accused liable for possession, cultivation, etc. of 'Ganja', a contraband article, the prosecution is required to prove by leading cogent and convincing evidence that what was seized from the accused's possession was 'Ganja' and nothing else. In order to establish the charge, the prosecution usually seeks to rely upon the expert's opinion and if such opinion does not support the allegation, in that case the Court would have no other alternative but to absolve the accused of the charge; the reason being that on the basis of the oral statement of the seizing officer and the witnesses to the seizure it cannot be conclusively proved that what has been seized represents contraband article. In the case in hand, the expert's opinion as aforesaid having hot supported the prosecution case so as to make the petitioner liable for punishment under Section 20(b) of the Act, ends of justice would be better served if the proceeding is brought to a haft.
4. In view of discussions made above, the whole proceeding being not maintainable, is quashed. The Criminal Misc. Case is accordingly allowed.