JUDGMENT
P.K. Patra, J.
1. The appellant has challenged the judgment dated 16-7-1998 passed by Shri H. C. Mohapatra, Additional Sessions Judge, Jeypore in T. R. Case No. 36 of 1997 convicting him under section 20(b)(i) of the Narcotic Drugs and psychotropic Substances Act (hereinafter referred to as ‘the Act’) and sentencing him to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5,000-00, in default to undergo rigorous imprisonment for a further period of six months.
2. Prosecution case, briefly stated, is as follows :
On 11-5-1997 at about 5.30 a. m. the O. I. C. of Dabugaon P. S. in the district of Nowrangpur (p. w. 6) received reliable information at the police station that the appellant was illegally dealing in Ganja and had kept Ganja in his house at village Karagan. After entering the said fact in S.D. No, 231 and informing his immediate superior official, he proceeded to the said village along with his staff and Executive Magistrate (p. w. 4) and raided the house of the appellant. He also called two local witnesses to the spot. After observing the formalities of search, he searched the residential house of the appellant in presence of the appellant’s wife Sibu Haldar (since acquitted) and recovered 3 kgs. of Ganja kept in a polythene bag. The appellant was absent from the house, at that time. Since the wife of the appellant could not produce any authority for possession of Ganja, p. w. 6 seized the same after taking out two samples therefrom, each weighing 25 grams. The sample packets and the balance quantity of Ganja kept in the polythene
bag were duly sealed using the personal seal of p. w. 6. Thereafter the wife of the appellant was arrested and was taken to the police station along with the seized article. After returning to the police station, p. w. 6 made S.D.E. No. 239, kept the contraband Ganja in the P. S, Malkhana and registered the case on the basis of a plain paper F.I.R. drawn up at the spot. One of the sample packets was sent to the R.F S.L., Berhampur for chemical examination by the J.M.F.C., Umerkote on the prayer of p. w. 6. On 13-5-1997 the Circle Inspector of Police, Umerkote (p. w. 5) took over charge of investigation from p. w. 6. After receiving the chemical examination report which confirmed that the sample contained flowering and fruition tops of cannabis plant (Ganja), he submitted chargesheet against the appellant and his wife showing the appellant as an absconder. After the appellant surrendered in court, he and his wife were tried together and while his wife was found not guilty and acquitted of the charge, the appellant has been convicted as stated earlier.
The defence plea is one of denial.
3. In order to bring home the charge against the accused persons, prosecution examined six p. ws., of whom p.ws. 1, 2 and 3 are three independent witnesses who have not supported the prosecution case. P. w. 4 is the Executive Magistrate in whose presence the house was searched and Ganja was seized. P. w. 5 is the Circle Inspector of Police who completed the investigation and submitted the chargesheet. P. w. 6 was the O. I. C. of the police station who detected the case. Placing reliance on the statements of the three official witnesses, i. e. p. ws. 4, 5 and 6, the learned Addl. Sessions Judge convicted the appellant; whereas he acquitted the wife of the appellant.
4. Mr. Acharya, learned counsel for the appellant and Mr. Pradhan, learned Addl. Standing Counsel for the State, were heard at length. Mr. Acharya contended that the impugned judgment cannot be sustained in the eye of law and is liable to be set aside, inasmuch as on the same set of evidence while the wife of the appellant has been acquitted, the appellant has been convicted and that there is no clear, cogent and convincing evidence on record regarding exclusive and conscious possession of
contraband Ganja by the appellant, Mr. Pradhan supported the impugned judgment contending that a conviction can be sustained on the basis of unimpeachable statements of official witnesses.
5. P. ws. 1, 2 and 3 are the co-villagers of the appellant. They have not supported the prosecution case and having turned hostile were cross-examined by the prosecution. Hence the statements of the three official witnessess, i. e. p. ws. 4, 5 and 6, require careful scrutiny before placing reliance on them for conviction of the appellant. P. w. 4 was the B.D.O.-cum-Executive Magistrate of Umerkote who has stated to have accompanied p, w. 6 to the house of the appellant. According to him, the raiding party searched the house of the appellant from 12 noon till 2 p. m. and he left the village at about 2 p. m. for Umerkote which is at a distance of about 25 kms, and that some women and men were there inside the house at the time of search, but according-to p. w. 6, he along with p. w, 4 and some Constables reached the house of the appellant at about 6.00 a. m. and the entire process of search and seizure was completed at about 11.30 a. m. and he returned to the police station at 4.00 p. m. . Thus the statements of p. ws. 4 and 6 are not consistent regarding the time of search and seizure and the discrepancy in their statements cannot be said to be minor in nature and cannot be ignored, inasmuch as when p, w. 4 has stated that the raiding party reached the house in question at 12 noon, p. w. 6 has stated that they reached the house in question at 6 a. m. and completed the search and seizure by 11.45 p.m. . The seizure-list (Ext. 1) also reveales that the time of seizure was 10.45 a. m. . Therefore, the presence of p. w. 4 at the time of search and seizure appears to be doubtful. Furthermore he has stated that though he has not been vested with the power of an Executive Magistrate while proceeding to the village in question he received a V.H.F. message from the District Magistrate empowering him to be an Executive Magistrate, It is evident from the statement of p.w, 6 that three houses in the said village had been raided for the purpose of detecting illegal possession of Ganja. He registered three cases one after another after returning to the police station from that
village at 4 p. m, . Though p. ws. 4 and 6 have stated that contraband Ganja had been recovered from the kitchen of the house in question, p. w. 6 has stated that he was unable to state the exact place of the kitchen where the polythene bag containing Ganja had been kept. According to p. w. 4, some women and men were there in the house in question, but p. w, 6 could not say whether anybody else was residing in that house or not. But he has stated that the first wife of the appellant, named Sukumari Haldar, was residing in a separate room. Therefore, Sibu Haldar, the co-accused of the appellant, was the second wife of the appellant. As per the F. I. R., during the absence of the appellant the search and seizure was effected. As per the statement of the I.O. (p. w. 5) who was not a member of the raiding party, he sent requisition to the Tahsildar, Dabugson to ascertain the ownership of the house in question and as per the report (Ext. 5) of the Revenue Inspector, the house in question belonged to the appellant and his three brothers. The Revenue Inspector who submitted the report (Ext. 5) and the Constables who were members of the raiding party have been examined in support of the prosecution case. Both p. ws. 5 and 6 are silent regarding the steps, if any, taken for apprehension of the appellant who was found absent during the search and seizure. The lower court records reveal that on 25-8-1997 the appellant was produced in court on the strength of N.B.W. issued against him after receipt of chargesheet showing him as absconder. Investigation was also not directed as to whether the appellant was a regular dealer in Ganja or as to who had brought the Ganja and kept the same in that house. The appellant has been implicated in this case apparently on the basis of the statement of the co-accused, Sibu Haldar, that her husband had procured Ganja from Malkangiri side for sale. There is no other material on record to implicate the appellant in this case. Without ascertaining the veracity of her statement and without collecting any other incriminating material against the appellant, chargesheet has been submitted against him showing him as an absconder. In the facts and circumstances of the case as discussed above, reliance cannot at all he placed on the statement of p. w. 4 regarding search and
seizure and it will be hazardous to come to the conclusion that the appellant was in exclusive and conscious possession of contraband Ganja, Learned Addl. Sessions Judge has reached the erroneous conclusion that the appellant and not his second wife (co-accused) was in exclusive and conscious possession of contraband Ganja, though he has held that prosecution has failed to prove the exclusive and conscious possession of contraband Ganja of the co-accused, Sibu Haldar.
6. In the case reported in (1994) 7 O. C. R. 590 (Krushna Dora v. State) it has been held that it is obligatory on the part of the prosecution to establish by cogent and reliable evidence that the appellant was in exclusive and conscious possession of the contraband article in order to sustain conviction for the
offence of illegal possession of Ganja as contemplated under section 20(b)(i) of the Act. As discussed earlier, in the present case, prosecution has miserably failed in that respect. Therefore the inevitable conclusion will be that prosecution has not been able to prove its case against the appellant for which he will be entitled to acquittal. Accordingly the impugned judgment of conviction and sentence passed against the appellant cannot be sustained and are liable to be set aside.
7. In the result, the Jail Criminal Appeal allowed. The judgment dated 16-7-1998 of the learned Additional Sessions Judge in T. R. Case No. 36 of 1997 is set aside and the appellant is acquitted of the charge. He be set at liberty forthwith.
8. Appeal allowed.