JUDGMENT
P.K. Patra, J.
1. The appellant has challenged the judgment dated 5-11-1997 passed by Shri U. S. Mishra, Sessions Judge, Sambalpur in Sesions Trial No. .234 of 1996, convicting the appellant under section 20(b)(i) of the Narcotic Drugs and psychotropic Substances Act, 1985 (for short ‘the NDPS Act.) and 25(i)(b) of the Arms Act and sentencing him to,-undergo rigorous imprisonment for a period of five years and to pay Rs.50,000/-, in default, to undergo rigorous imprisonment for a further period of one year under the first count and to undergo rigorous imprisonment for three years under the second count, with directions that the sentences will run concurrently.
2. Briefly stated, the prosecution case runs as follows :
On 6-9-96 at about 6.00 a.m. while the Officer-in-charge of the Jharsuguda Police Station (p. w. 6) was investigating Jharsuguda P. S. Case No. 191 dated 6-9-96 under section 147, 148, 302/149, I P. C. at Mangal Bazar inside Jharsuguda, town, he got reliable information that accused in that case, viz., Gurudeb Behera who was a close friend of the appellant, (hereinafter referred to as ‘the accused)’ had concealed his presence in the house of the accused at Mangal Bazar and, therefore, p. w. 6 conducted search of the house of the accused During search two attaches (M Os. I and II) and one plastic bundle (M.O. III), were
found below a cot and suspecting that fire arms might have been kept therein, the attaches and bundle were opened and seven packets of Ganja, two packets of Ganja and three packets of Ganja were found inside M. Os. I, II & HI respectively. Further during search, one country-made pistol (M. O. IV) and country-made revolver (M. O. V) and a catridge (M. O. VI) were recovered. Intimation was sent to the Superintendent of Police, Jharsuguda about the recovery of contraband Ganja and fire arms. Since the accused could not show any authority to possess such quantity of Ganja and fire arms, the same were seized in presence of witnesses. On weightment, it was found that M.O. I contained 6 kgs. 930 grams of Ganja, M.O. II contained 4kgs. 40 grams of Ganja and M. O. III contained 2 kgs. 900 grams of Ganja. Six samples were drawn up from M. Os. I, II & III, each weighing 24 grams (two each from M. Os. I, II & III) and the samples packets as well as the remaining quantity of contraband Ganja were duly sealed, using the brass seal of p. w. 6 and the brass seal was kept in zima of a witness (p. w, 2). The accused was arrested and a plain paper F. I. R. (Ext. 7) was drawn up at the spot and an S. I. of the P. S. (p. w. 7) was directed to take up Investigation. Ext. 7 was sent to the P. S. for registration of the case. The accused was taken up to the P. S. along with the seized articles which were kept in the P. S. Malkhana and on the next day the accused was forwarded to the court in custody and the seized articles were produced in court with prayer to the S.DJ.M., Jharsuguda to send three sample packets for chemical examination. The chemical examination report (Ext. 10) revealed that the samples contained flowering and fruiting tops and leaves of Cannabis Sativa (Ganja). The fire arms were sent for examination by the Director and Chemical Examiner to the Government of Orissa, State Forensic Science Laboratory, Rasulgarh, Bhubaneswar and as per his report (Ext. 13), the revolver and pistol came under the purview of Arms Act and the cattidge was a live round. After obtaining sanction from the District Magistrate, Jharsuguda (vide Ext. 14) and after completion of investigation, p. w. 7 submitted charge-sheet against the accused, who stood his trial.
3. The defence plea is one of denial and false implication.
4. In order to bring home the charge against the accused persons, prosecution has examined seven witnesses; of whom p. w. 6 is the O.I.C. of the P. S. who detected this case and p.w. 7 is the Investigating Officer. P. ws. 1 & 2 are two independent witnesses who have not supported the prosecution case and have turned hostile. P. w. 3 is a constable and p. w. 4 is an A.S.I. of of the P. S. p.w. 5 is an Amin who prepared the spot map. The defence has examined none.
5. Mr. M. Kanungo, learned counsel for the appellant and the learned Additional Standing Counsel for the State were heard at length. Mr. Kanungo contended that the impugned judgment is unsustainable in law and is liable to be set aside due to incorrect and improper appreciation of evidence on record, specially regarding failure of the prosecution to establish beyond reasonable doubt that the accused was in exclusive and conscious possession of the contraband articles. The learned Addl. Standing Counsel supported the impugned judgment.
6. The learned Sessions Judge placed reliance on the statements of p. ws. 3, 4, 6 & 7 and reached the conclusion of guilt of the accused and accordingly, convicted him holding that the accused was in exclusive and conscious possession of the contraband articles and that non-compliance of some of the provisions of the N. D.P.S. Act did not vitiate the trial. The learned Sessions Judge has referred to the decisions in the cases re : Krushna Dora v. State reported in (1994) 7 O. C. R 590 and Jadumani Sahu v. Slate reported in (1997) 13 O.C.R 117 and has distinguished the facts and. circumstances of those cases with the facts and circumstances of the present case and held that these are not applicable to the present case.
7. In the case Re : Krushnu Dora v. State reported in (1994) 7 O. C R. 590, it has been held, that :
Prosecution is obliged 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
contraband article and when the prosecution evidence lacks in that respect, the appellant would be entitled to acquittal.
In the case re : Jadwnani Sahu v. State reported in (1997) 13 O. C. R. 117 = (1997) 3 Crimes 486, it has been held that :
Where there was recovery of opium from a house searched jointly recorded in the names of several persons, prosecution should have adduced specific evidence about actual possession of the house and in the absence of the same, the appellant could not be held to have been in exclusive and conscious possession of the house and contraband article, so as to fasten the liability. 8. In the present case, as stated earlier, P. ws. 1 &2 who are two independent witnesses, have not supported the prosecution case and have turned hostile. P. w. 3, a constable of the P. S., was present during search of the house in question. In his statement in cross-examination p. w. 3 stated that the dimension of the house of the accused would be 20' X 10' and the wife of the accused was present in the room which was searched and to the east of that house, the agnates of the accused were living. P. w. 4, the Assistant Sub-Inspector of the P. S., has claimed to have been present during the house search conducted by p. w. 6. He has stated that he, P. ws. 3,6 & 7 went inside the house of the accused and found that the father of the accused who was ill and was lying on the bed and the accused was not found in the house. In his statement in cross-examination, P. w. 4 stated that prior to this, he knew the accused who was selling meat. According to him, the house consisted of only one room, with only one door made of tin and one woman was present inside that room and he did not know whether that woman was the wife of accused or not. According to him, the search was conducted at 5.45 a. m,. The Amin (p. w. 5) who prepared tbe spot map (Ext. 3) has stated that the house was in joint possession of Barkhat Ulla, Rahmat Ulla and others. The map (Ext. 3) reveals the names of three others along with Barkhat Ulla and Rahmat Ulla; but the names of the accused has not been mentioned. P. w. 6 has stated that the accused was present in his house and when he was called, he opened the door and came out and he was disclosed the reason for searching the house and after completion of formalities, search was conducted and the contraband Ganja and arms was recovered. In his statement in cross-examination, p. w. 6 has stated that they arrived at the spot at 6.00 a. m. and that the room which was searched was occupied by the accused along and that the parents and two brothers of the accused and other family members were present in a separate room of that house, at that time. He has not stated regarding the presence of any woman in that room which was searched. The I. O. (p. w. 7) has stated that when the accused was called he came out of his room. But in his statement in cross-examination p. w. 7 has stated that the accused was alone present in his house at the time of raid. Thus it is found that the statements of the p. ws. 3, 4, 6 & 7 are not consistent with each other regarding the occupants of the house in question during search. While p, w. 3 has stated that the, wife of the accused was present in the room during search, p. w. 4 has stated that the father of the accused was on the bed due to illness, at the time of search and that the accussed was not found in that room. P. w. 6 has stated that the accused was present in the house and being called, he came out of the house, opening the door, P. w. 6 has not stated about the presence of the wife, or the father of the accused in that room at the time of search and has stated that the room which was searched was occupied by the accused alone and his family members were residing in separate rooms of that house. Though p.w. 6 has stated that the accused was a married roan, he has not stated about the presence of the wife of the accused at the time of search. The I. O., p. w. 7 has stated that the accused alone was present in his house at the time of search. He has not stated regarding the presence of the wife and father of the accused in that room during search. Though p. w. 4 has stated that a tin door had been fitted at the door of the house, p, w. 7 has stated that the door leaves were of wooden planks. Though p. w. 6 has stated that utensils, clothes etc, were found inside that room, he did not mark wearing
apparels of females inside the room. But p. w. 7 has stated that no utensil was there inside that room and some garments used by males and a cot were found inside that room. When p. ws. 4, 6 & 7 have stated that there is only one door in that house, p. w. 3 has stated that there are two doors in that house. P. w. 5, the Amin, has stated that the house was in joint possession of Barkhat Ulla and Rahtnat Ulla and others. No neighbouring witness has been examined in support of the prosecution case that the accused was the sole occupant of that house from which contraband article and arms were recovered. There is no material on record to show that the accused had purchased Ganja and had kept the same in his house and that he was dealing in Ganja. Thus there is no cogent, convincing, credible, consistent and unimpeachable evidence on record in support of the prosecution case that the accused was in exclusive possession of the house searched and the contraband Ganja and fire arms, seized in this case, so as to fasten the liability on him.
9. In the premises, the learned Sessions Judge has erred in reaching the conclusion of guilt of the accused and holding that the principles enunciated in the two cases referred to above, will be of no assistance to the defence. The irresistible conclusion will be that the prosecution has not been able to establish beyond reasonable doubt that the accused was in exclusive and conscious possession of the contraband Ganja and fire arms. As such he will be entitled to the benefit of doubt and his conviction cannot be sustained and he will be entitled to an acquittal. The impugned judgment is unsustainable in law and is liable to be set aside.
In view of the aforesaid finding, a discussion as to whether the trial is vitiated due to non-compliance of the provisions of the N.D.P.S. Act, will be merely academical.
10. In the result, the Criminal Appeal is allowed and the impugned judgment dated 5-11-97 passed by the learned Sessions Judge, Sambalpur in Sessions Trial No 234 of 1996 convicting the appellant under section 20(b)(i) of the N.D.P.S. Act and 25(i)(b) of the Arms Act and sentencing him to undergo
rigorous imprisonment and to pay fine, is set aside. The appellant
is given the benefit of doubt and is acquitted of the charge. He
be released from custody, if his detention is not required in any
other case.
11. Crl. appeal allowed.
