{"id":36732,"date":"2000-12-12T00:00:00","date_gmt":"2000-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramesh-haldar-vs-state-of-orissa-on-12-december-2000"},"modified":"2016-05-05T11:40:30","modified_gmt":"2016-05-05T06:10:30","slug":"ramesh-haldar-vs-state-of-orissa-on-12-december-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramesh-haldar-vs-state-of-orissa-on-12-december-2000","title":{"rendered":"Ramesh Haldar vs State Of Orissa on 12 December, 2000"},"content":{"rendered":"
Orissa High Court<\/div>\n
Ramesh Haldar vs State Of Orissa on 12 December, 2000<\/div>\n
Equivalent citations: 2001 I OLR 245<\/div>\n
Author: P Patra<\/div>\n
Bench: P Patra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 P.K. Patra, J.<\/p>\n
 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.\n<\/p>\n
 2.    Prosecution case, briefly stated, is as follows :\n<\/p>\n
 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<\/p>\n
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.\n<\/p>\n
 The defence plea is one of denial.\n<\/p>\n
 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.\n<\/p>\n
 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<\/p>\n
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.\n<\/p>\n
 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<\/p>\n
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<\/p>\n
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.\n<\/p>\n
 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
\noffence 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.\n<\/p>\n
 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.\n<\/p>\n
 8. Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Ramesh Haldar vs State Of Orissa on 12 December, 2000 Equivalent citations: 2001 I OLR 245 Author: P Patra Bench: P Patra 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-36732","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nRamesh Haldar vs State Of Orissa on 12 December, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramesh-haldar-vs-state-of-orissa-on-12-december-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramesh Haldar vs State Of Orissa on 12 December, 2000 - 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