Orissa High Court
Pitabas Pradhan vs State Of Orissa on 8 January, 2002
Equivalent citations: 2002(I)OLR379
Author: P. K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P. K. Tripathy, J.
1. Appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, "the Act") and sentenced to undergo R. I. for ten years and to pay a fine of rupees one lakh by learned Assistant Sessions Judge, Kamakshyanagar as per the impugned judgment delivered in Sessions Trial No. 17-D/4 of 1989. That order of conviction and sentence is under Challenge in this appeal.
2. According to the prosecution, on 19.10.1988, on receipt of information from the Excise Constable Akshya Kumar Mohapatra (P.W. 2) the S.I. of Excise, Kamakshyanagar namely Kasinath Biswal (P.W. 1) conducted a raid of the betel shop situated at the out-skirt of village Khokasa under Kamakshyanagar P.S.. Accused was then in that shop. On search, 100 gms. of non-duty paid Ganja was recovered from a "tin-dibba" and 5 gms. of contraband opium from a "Zarda-Dibba". The same was seized in presence of the excise staff and two independent witnesses namely Hata Kishore Khuntia (P.W. 3) and Kunja Behari Gochhayat (P.W. 4). Accused was arrested and produced before the Magistrate on 20.10.1988. The seized article, which was kept in a sealed packet, was sent for chemical analysis through Court on 27.1.1989 and on 31.12.1989 prosecution report was submitted for the offence under Section 18 of the N.D.P.S. Act. The S.D.J.M., Kamakshyanagar committed the case to the Court of Sessions Judge, Dhenkanal in the absence of a Special Court constituted under Section 36(1) of the Act by that date and learned Sessions Judge on 23.2.1989 transferred the case to the file of Assistant Sessions Judge, Kamakshyanagar for trial and disposal according to law.
3. Learned Assistant Sessions Judge, Kamakshyanagar framed the charge under Section 18 of the N.D.P.S. Act and took up the trial. The aforesaid witnesses were examined as P.Ws. 1 to 4 and the seizure-list (Ext. 1). Forwarding letter (Ext. 3) and the opinion report of the Drugs Controller (Ext. 4) were relied on. The seized articles with containers were marked as M.Os. I to IV. In course of the trial, P.Ws. 3 and 4 did not support the prosecution case. They were confronted with their previous statements recorded by P.W. 1, but such statements were not proved and exhibited. The trial court assessed the evidence on record and while rejecting the contention of the defence (1) that prosecution has not been able to prove that the shop from which the articles were seized belongs to the accused or that the articles were seized from his possession, (2) that, the seized article was opium, (3) that, the procedure contemplated in the Act relating to search and seizure were not complied with and, above all, (4) that, there is no independent corroboration to the version of P.Ws. 1 and 2, regarding search and recovery of the said articles from the possession of the accused, convicted the appellant basing on the report that ganja and opium was seized and treating the evidence of P.Ws. 1 and 2 as sacrosanct and sentenced him in the aforesaid manner.
4. In the appeal, the appellant has adopted a pedantic manner while agitating against the order of conviction by stating that the evidence of P.Ws. 1 and 2 are not reliable and, therefore, the finding recorded by the trial court is liable to be set aside.
5. After going through the record, this Court finds that the whole process is a bundle of illegalities and carelessness attributable to prosecution, the Court and the defence, and such circumstances are briefly reflected, as follows.
6. It is needless to say that Section 18 of the Act provides for punishment for contravention of the provisions in the Act in relation to opium poppy and opium, whereas Section 20(b) provides for punishment for contravening any provision of the Act in relation to manufacturing, possessing, selling, purchasing and transporting etc. of canalis i.e. Ganja. Though according to the case of the prosecution 100 gms of non-duty paid Ganja was recovered, but the prosecution report did not quote alleging the offence under Section 20(b) of the N.D.P.S. Act. At the time of taking cognizance of the offence or commitment, learned S.D.J.M., Kamakshyanagar did not take note of that deficiency in the prosecution report perhaps due to non-application of judicial mind to the facts alleged. At the stage of consideration of charge, as it appears, the trial court also did not take care of the situation. It appears from the charge framed that though appellant was charged for the offence under Section 18 of the Act but the fact in support of it was stated to be because of the accused being found in possession of 100 gms. of N.D.P. Ganja and 5 gms. of contraband opium. If the trial Court would have taken care to read the penal provision in the Act, then at least it could have guarded against not framing the charge under Section 20(b) of the Act on the allegation of possession of Ganja.
7. According to the provision in Section 36-A of the Act, the offences are triable by Special Courts constituted by the State Government. Admittedly, by the relevant date such Special Court had not been constituted for trial of the cases under the Act. Therefore, the transitional provision as provided under Section 36-D of the Act was to govern the field. In that context, the term "Court of Sessions" as provided in Section 36-D has to be understood in accordance with qualitiation as provided in Sub-section (3) of Section 36. It is provided there that a person shall not be qualified for appointment as a Judge of a Special Court unless he is immediately before such appointment a Sessions Judge or an additional Sessions Judge. Therefore, in the absence of a Special court it is the Sessions Judge or an Additional Sessions Judge which is competent to try the case and no other officers below that rank. For the reasons best known to him and which has remained unexplained in the L.C.R., learned Sessions Judge, Dhenkanal transferred the case to the Court of Assistant Sessions Judge, which had no jurisdiction to try the offender for the offences punishable under Section 18 or 20 of the Act. Therefore, learned Assistant Sessions Judge had inherent lack of jurisdiction to try the case. Yet the accused failed to take such a plea not only in the Court below but also while challenging the order of conviction in this appeal. That shows the casual manner in which the case was dealt with by the appellant also.
8. Be that as it may, on perusal of the evidence on record and the findings recorded by the trial Court, this Court finds that the order of conviction is non-sustainable for the reasons indicated below. In that connection the conviction under Section 18 of the Act is considered only with respect to the allegation of possession of opium in as much as there is no valid charge for the offence under Section 20(b) of the Act and apart from that for the following reasons and conclusion, no useful purpose will be served by directing fora retrial.
9. In the entire evidence P.Ws. 1 and 2 have not stated anything from which it can be stated that the shop from which the contraband articles were seized was belonging to or in possession of the accused. Mere presence of the accused in the shop at the time of raid is not sufficient to presume that either he was the owner of the shop or he was in possession of the contraband articles. This aspect was wrongly rejected by the trial Court by stating that accused has failed to prove that he had no nexus with the shop. Learned Assistant Sessions Judge in that respect failed to properly read the evidence of P.W. 4. P.W. 4 being a co-villager of the accused has stated in his evidence that accused has no shop and he lives on cultivation. He has further stated that accused has four sons and one of his sons namely Rabi owns the betel shop. Prosecution has neither disputed to that evidence of P.W. 4 nor has given any evidence contrary to that. Under such circumstance, prosecution evidence does not prove the factum of ownership and possession of the betel shop and the contraband articles against the appellant.
10. The opinion report from the Drugs Controller reads as hereunder :
"2. Opium (Marked - B) : Descriptions : A dark black coloured soft and plastic mass, having characteristic bitter taste and odour of Opium.
Identification Tests : Positive for morphine (Opium).
Assay for estimation of morphine content of the above sample marked 'B' could not be feasible as about 3 gm. of sample only, has been sent as against the minimum requirement of about 10 gms. of Opium for Assay of morphine.
Sample marked (b) is considered to be Opium.
It is seen that the first two quoted passages are type written whereas the above quoted underlined portion is hand-written without the initial of any person or authority much less the Chemical Examiner or the Drugs Controller. It is, therefore, not proper to rely on that hand written portion.
Apart from that, Section 2(xv) of the Act defines the term "Opium" and reads as hereunder :
"(xv) 'Opium' means :
(a) the coagulated juice of the opium poppy; and Tapan Kumar Biswas V. S.T.A.
(b) any mixture, with or without any natural material of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine."
The above quoted opinion does not unfailingly state that the sample sent for chemical analysis was opium containing a minimum of 0.2 percent of morphine. Therefore, the articles sent if was giving odour of opium but containing less than 0.2 per cent of morphine, that does not make the possessor liable under Section 18 of the Act. Unfortunately, the trial Court did not carefully read this evidence and mechanically recorded a finding that Ext. 4 proves that the seized article was opium.
12. The prosecution case also suffers from contradictions in the evidence of P.Ws. 1 and 2 relating to the manner in which the information was received, the manner in which the search was conducted, the mandatory procedure relating to search and seizure which was not properly followed and no evidence regarding the manner of custody and preservation of M.Os. I to IV from 19.10.1988 (date of seizure) till 27.1.1989 (when forwarded to Laboratory). But this Court does not propose to discuss at length all such deficiencies in view of the aforesaid findings that the prosecution has failed to prove that the shop belongs to the accused and that the article seized was opium containing minimum of 0.2 per cent of morphine. Therefore, the conviction under Section 18 of the Act is not sustainable in the eye of law.
13. For the reasons indicated above, the impugned order of conviction is set aside and the accused is acquitted from the charge and the Criminal Appeal is allowed accordingly.
14. Criminal appeal allowed.