Allowed

Kisanta Nayak v. State.

Orissa HC10 May 2017CRLA/264/2010

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal, setting aside the conviction and acquitting him under the NDPS Act. The court held that unreliable prosecution testimony, discrepancies in search and seizure procedures, missing brass seal, failure to produce Malkhana registers, and unexplained sample custody destroyed the prosecution's case beyond reasonable doubt.

What did the court decide?

Appellant is acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act and set at liberty forthwith if in custody.

Kisanta Nayak Vs State. — Narcotics (NDPS) | Orissa HC (2017)

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ORISSA HIGH COURT, CUTTACK

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CRLA NO. 264 OF 2010

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From the judgment and order dated 24.04.2010 passed by Shri Raghubir Dash, Sessions Judge-cum-Special Judge, GanjamGajapati, Berhampur in G.R. Case No.1 of 2008 (N) / T.R. No.3 of 2008.

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Kisanta Nayak .....…. Appellant -VersusState of Odisha ……… Respondent For appellant - Mr. B.K. Pradhan & Mr. S. Ranjit, Advocates For respondent - Mr. P. Pattnaik, Additional Government Advocate

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PRESENT:-

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THE HON’BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Judgment: 10.05.2017

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S.PUJAHARI, J. The appellant in this appeal assails the judgment of conviction and order of sentence passed by the learned Sessions Judge-cum-Special Judge, Ganjam-Gajapati at Berhampur in G.R. Case No.1 of 2008 (N) / T.R. No.3 of 2008 convicting him under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short “the Act”) and sentencing him to undergo R.I. for 10 (Ten) years and to pay a fine of Rs.1 lakh, in default, to undergo R.I. for a further period of two years.

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2. Prosecution case as revealed from the record may be stated succinctly as under:-

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On 28.01.2008 at about 4 p.m. the Inspector of Police, in-charge of Baidyanathpur Police Station, Berhampur, P.N. Majhi (P.W.10) with his staff while patrolling, near New Bus stand area of Berhampur received a secret message that one boy wearing blue jean pant and a black jacket holding two attachécases (M.Os.I and II) was about to board a bus in the name and style ‘AGNEE’. So, to verify the truth or otherwise of such information, P.W.10 accompanied with police raiding party rushed to the new bus stand where he found a person of same description holding M.Os.I and II loitering near that ‘AGNEE’ bus. On being asked, the appellant gave his identity, though reluctantly. Smell of ‘Ganja’ when emitting from those M.Os., being confronted, the appellant confessed to have been carrying ‘Ganja’ in those attaché cases. Thereafter, P.W.10 observing all paraphernalia in accordance with the provisions of NDPS Act and Rules made thereunder, in presence of a Gazetted officer opened those attaché cases with the key provided by the appellant and found both the containers containing ‘Ganja’. To estimate the weight of ‘Ganja’, service of a weigher, namely, Sankar Sahu (not examined by prosecution) was requisitioned who took weighment of ‘Ganja’. It was found one attaché case

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contained 12 Kgs. 300 grams (M.O.I) and another attaché case contained 11 Kgs. of ‘Ganja’ (M.O.II) respectively. Thereafter, P.W.10 collected samples of 50 grams of ‘Ganja’ in duplicate from each container in four separate “TIN DIBAS”. The sample packets and remaining ‘Ganja’ found in those containers were sealed separately at the spot as required by law and thereafter P.W.10 prepared different seizure lists at the spot in presence of the witnesses and supplied copies thereof to the appellant and his endorsement obtained. P.W.10 drew up plain paper F.I.R. (Ext.10) at the spot and returned to the Police Station with the appellant, seized articles and sample containers. He registered the P.S. Case No.12 of 2008, drew formal F.I.R. (Ext.10/1), kept the seized articles and sample containers in P.S. Malkhana, sent a detailed report (Ext.12) to the Superintendent of Police, Berhampur intimating the fact of the detection of ‘Ganja’. Subsequently, P.W.10 handed over the charge of the case to S.I. of Police, Harekrushna Tarai (P.W.12) who re-sealed the seized articles with samples and re-deposited in P.S. Malkhana for safe custody. On the next day, the I.O. produced the appellant with seized articles before the Court. The samples (Ext.A-1 and B-1) were sent for chemical examination to R.F.S.L., Berhampur on 30.01.2008 for chemical examination. When chemical examination report (Ext.16) confirmed the article examined as

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‘Ganja’ and on completion of investigation P.W.12 submitted charge-sheet for alleged commission of offence under Section 20(b)(ii)(C) of the Act against the appellant.

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3. The appellant being charged for the aforesaid offence, and having abjure his guilt, faced trial before the learned Special Judge, Ganjam, Berhampur for alleged commission of offence punishable under Section 20(b)(ii)(C) of the Act. As the appellant denied the charge, prosecution examined 12 witnesses and also exhibited 16 documents including chemical examination report and M.Os.I and II, attaché cases. Though the appellant had taken a plea of denial, but adduced no rebuttal evidence to probabalize his plea of denial.

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On conclusion of trial, basically relying on the evidence of P.Ws.2, 3, 4, 10 and 12, all official witnesses and on the basis of the chemical examination report, the trial court returned the verdict of guilt, and sentenced the appellant, as stated earlier repelling the defence plea of denial and false accusation.

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4. The learned counsel for the appellant has assailed the impugned judgment to be unsustainable in the eye of law, there being no independent corroboration to the version of the official witnesses on the factum of search and seizure. So also, it has been submitted on his behalf that no reliable evidence being led to show that the articles which were seized from the possession

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of the appellant were kept in Police Station Malkhana in safe custody till its despatch for chemical examination, the trial court grossly erred in appreciation of evidence on record to arrive at a reasonable and probable conclusion that the appellant was found to be possessing the ‘Ganja’ violating the provisions of Section 8(c) of the Act.

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5. Per contra, the learned Addl. Standing counsel argued that the evidence of official witnesses credibly indicating that the appellant was found in actual and conscious possession of two attaché-cases containing ‘Ganja’ and when the representative samples drawn therefrom during chemical examination revealed that the same on test was found to be ‘Ganja’, the impugned judgment of conviction and order of sentence, therefore, needs no interference on the ground of noncorroboration from independent witnesses.

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6. It is settled law that non-corroboration from independent witnesses can hardly be a ground to discard the evidence of official witnesses to record the conviction if the version of the official witnesses is otherwise worthy of credence and prove the guilty of the accused beyond reasonable doubt. The aforesaid law has been well settled in a catena of decisions by the Apex Court so also by this Court. One of such case is the

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case of Nathusingh –vrs.- State of Madhya Pradesh , AIR

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1973 SC 2783, wherein the Apex Court have held that:

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“xx xx xx xx xx The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused.”

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A Division Bench of this Court in the case of Nilambar Sahu –

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vrs.- State of Orissa , (1990) 3 OCR 219 relating to Bihar and

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Orissa Excise Act have held that:

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“xx xx xx xx xx Even if the evidence of these two witnesses be not available to the prosecution to establish its case, the evidence of the three official witnesses cannot be brushed aside. Even a closure scrutiny of the evidence does not permit us to differ with the finding of fact reached by the two courts below in this regard xx xx xx xx xx.”

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So also in the case of Shyam Sunder Rout –vrs.- State of

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Orissa, 1991 Cri.LJ 1595 , this Court has held that:

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“xx xx xx xx It is well settled in law that where seizure witnesses turn hostile, the evidence of the departmental witnesses can be relied upon to prove the fact of seizure unless there is intrinsically anything which appears to make their evidence non-trustworthy xx xx xx.”

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Section 118 of the Indian Evidence Act, 1872 also does not make the official witnesses to be incompetent witnesses. Again Section 134 of the Indian Evidence Act, 1872 speaks that no particular number of witnesses shall in any case be required for the proof of any fact. The said section also does not make any distinction with regard to version of official witnesses and other witnesses. Therefore, even if the version of the independent

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witness to seizure does not support the case of seizure if the version of the official witnesses making the seizure is worthy of credence and suffers from no infirmity, there is no impediment in law to place reliance on such evidence to accept the seizure. The law with regard to appreciation of the version of official witnesses is that their testimonies are required to be scrutinized fairly and dispassionately like the other witnesses in order to find out whether the same inspire confidence and can be safely relied upon. On such scrutiny, if no infirmity is found in the version, there is no impediment to make the foundation of conviction and record a conviction on the same even if not corroborated by any other independent witness. In view of the aforesaid, contention advanced by the learned counsel for the appellant that since the version of the official witnesses are not supported by the independent witness, such version of the official witnesses to incriminate the appellant requires outright rejection, is unacceptable.

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7. Keeping in mind the aforesaid law, the evidence of official witnesses in this case is required to be scrutinized. The evidence of P.W.2, the S.I. of Police, Baidyanathpur Police Station, cuts at the root of the prosecution case as to very presence of P.W.10 at the spot of occurrence when the appellant

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is said to have been caught red-handed with M.Os.I and II. It is

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disclosed by P.W.2 that on 28.01.2008 at 4 p.m. he being S.I. of Police attached to Baidyanathpur Police Station along with the Havildar - Rama Chandra Sethy (P.W.4) and Havildar – Laxman Gouda (P.W.3) had been to new bus stand area, Berhampur on the command of P.W.10 for routine patrolling. His evidence further revealed that at about 4 p.m., he received information that a boy wearing blue jeans and black jacket holding two attaché-cases, was about to board a bus. To ascertain the truth or otherwise of the information, the Patrolling party immediately rushed to the new bus stand where they found the appellant having the aforesaid identification proceeding towards ‘AGNEE’ bus holding two attaché cases. By that time, P.W.10 also arrived at the spot. On the contrary, the evidence of P.W.10 revealed that on 28.01.2008 while he was patrolling in new bus stand area with P.Ws.2, 3 and 4, he received a reliable information that a boy wearing a blue colour jean and black colour jacket waiting at the bus stand with two attaché-cases with him. On receipt of such information he along with the aforesaid staff rushed to the bus stand and found that particular boy. In cross-examination the witness has deposed that while he was in between Goilundi and New bus stand, he got such information and arrived at the spot around 4 p.m. P.W.3, the Havildar of Police, however, has stated that on 28.01.2008 on the direction of the I.I.C. (P.W.10)

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he along with P.W.2 and P.W.4 had been to the bus stand where the I.I.C. got information about transportation of ‘Ganja’ in 2 nos. of attaché-cases by a boy wearing blue jeans and black jacket. They proceeded to the spot and apprehended him. In this backdrop, the P.W.10 having not reduced into writing the nature of the information he received with time and place casts a serious aspersion on the bonafide of prosecution as to who received the information at what time and at which place. In this backdrop, the evidence of P.W.4, Police Havildar revealed that on receipt of information, P.W.10 had directed them to proceed to new bus stand, Berhampur. Accordingly, he along with P.Ws.2 & 3 proceeded to the new bus stand to verify the truth or otherwise of the information where they found a boy of same description standing at the bus stand with two attachécases. On suspicion, they asked that person to disclose his name and identity, they apprehended that person with attaché cases and produced him before the I.I.C. (P.W.10) who was then standing in front of the Bus Union Office. So, the evidence of official witnesses on all such counts are discrepant affecting the core of the prosecution.

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8. Another basic infirmity which writ large on record emerges from the evidence of P.W.2 who has stated in continuation of his evidence discussed earlier that on arrival of

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P.W.10, he called independent witnesses (P.Ws.7, 8 and 9) whereafter P.W.10 removed the outer cover of those two attaché cases, obtained key from the appellant and opened those two attaché-cases and recovered ‘Ganja’ staked in both the attachécases. His evidence further discloses that thereafter information was sent to Superintendent of Police, Berhampur about recovery of ‘Ganja’. P.W.10 informed the appellant his right to be searched in presence of a Gazetted officer or Executive Magistrate and on getting consent from the appellant. D.S.P. (Crime) (P.W.6) was called and in his presence, personal search of the appellant was taken where four pieces of ten rupee GC notes, one bus ticket for traveling from Berhampur to Jharsuguda in ‘AGNEE’ bus, one railway ticket for traveling from Jharsuguda to Ahamedbad, one train reservation application form and two other keys were recovered. On all such aspects P.W.2 was not cross-examined by the prosecution. His evidence shows that before arrival of the Gazetted officer (P.W.6), the P.W.10 opened two containers allegedly containing ‘Ganja’ obtaining key from the appellant and simultaneously deposed that after arrival of Gazetted officer when personal search of the appellant was taken, two more keys were recovered from his person. This is a material contradiction in the prosecution case which severely detrimental to the bonafides

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of the prosecution case which could have been explained by the prosecution. This infirmity is not at all explained by the prosecution on any count. This witness being not declared hostile by the prosecution and when deposed affirmatively about opening of two locked attaché-cases containing alleged ‘Ganja’ by P.W.10 but when subsequently two other keys were recovered from the person of the appellant after arrival of Gazetted officer, the entire process of search and seizure is shrouded in deep mystery. When locked attaché-cases were opened before arrival of the Gazetted offier and when as per the version of the P.Ws.6 and 10 on personal search of the appellant two more keys were recovered from his possession, a serious doubt is created as to the process of search and seizure. Moreover, no evidence brought on record as to what precautionary measures taken by P.W.10 to rule out meddling with the alleged articles found in those two attaché cases before arrival of P.W.6 and subsequent drawl of samples. Timing of search and seizure, availability or non-availability of independent and responsible witness to the locality are factors to be kept in mind by an Officer while conducting search and seizure under the Act. Another material infirmity in the prosecution case is regarding actual estimate of weight of alleged ‘Ganja’. Here, the evidence of P.W.10 reveals that to

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estimate such weight, on his direction, P.W.3 called weigher – Sankar Sahu (not examined) who arrived with apparatus and weights of different denominations. The seizure list (Ext.1) revealed seizure of scale and weights of one 2 kg., one 1 kg., one 500 grams, one 200 grams, one 100 grams and one 50 grams denomination were brought by the weigher to estimate the weights. Total of such weights comes to 3 Kgs. 850 grams. With such extent of weights how the prosecution ascertained that the gross weight of one grey colour box was 15 Kgs. 500 grams and net weight of ‘Ganja’ was 12 Kgs. 300 grams. Similarly, prosecution alleged that gross weight of black colour attaché was 12 Kgs. 200 grams and net weight was 14 Kgs. 200 grams. So, the weight of alleged ‘Ganja’ not taken as aforesaid, the actual estimate of alleged ‘Ganja’, therefore, remained unexplained when the cumulatively the weights brought comes to 3 Kgs. 800 grams only. How the prosecution could say that the weights of attaché-cases and alleged packet of ‘Ganja’ of such weight estimated remained in wilderness. It is not the case of the prosecution that several other weights were also brought besides the seized weights nor it is the case that ‘Ganja’ removed from packets and estimate of weight taken in phases. Even if the weights of ‘Ganja’ taken in phases with such scanty weight tablets what precaution taken by P.W.10 to avoid

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tampering of article seized at the stage not brought on record. The weigher – Sankar Sahu who allegedly took the weighment being not examined by the prosecution, the version of police official witnesses as to the estimate of weight of alleged ‘Ganja’ is also shrouded in doubt. Had this witness been examined, defence could have elicited as to how prosecution reaches to such an estimate of weight and what precautions taken to avoid meddling with seized articles.

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9. The other gross infirmity in the prosecution case is nonproduction of brass seal by which seized material objects were sealed. According to the prosecution witness, P.W.10, after he put seal on the seized articles he kept the brass seal in zima of Simanchal Sahoo (P.W.11) who executed a Zimmanama (Ext.6). That Simanchal Sahoo has been examined as P.W.11. He has proved his signature vide Ext.1/2 which is the seizure list relating to seizure of weighments scale and weights. He has also proved his signature vide Exts.4/2 and Ext.11/3. Ext.4/2 is seizure of M.Os.I and II and Ext.11 is the seizure of one train ticket, one bus ticket and 4 nos. of 10 rupee GC notes and two nos. of keys. Prosecution for reason known did not ask any question to the witnesses as to custody / zima of the brass seal vide Ext.6/1. Handing over the brass seal to an independent, reliable and responsible person and asking him to produce it

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before the Court at the time of production of the seized articles in Court for verifications are not only the empty formalities or rituals but also is necessity to eliminate the chance of tampering the articles. Possibly, no such brass seal being given in his zima under Ext.6/1, prosecution did not venture to confront that zimmanama to P.W.11. Since the whereabout of that brass seal was not deposed by P.Ws.10 and 12, the contention of the defence that brass seal was not released in zima of this witness, but retained by P.W.10 cannot be brushed aside lightly considering the nature of evidence with regard to search and recovery of alleged seized articles and its proper custody.

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10. So far as drawing of sample is concerned, the evidence of P.W.10 unmistakably revealed that he drew up representative samples of 50 grams from each of the alleged seized ‘Ganja’ containers in duplicate marked as A-1, A-2 and B-1, B-2. The evidence of P.W.12 revealed that he sent A-1 and B-1 to the chemical examiner to test the nature of the seized articles. P.W.10 has affirmatively deposed that he kept the samples in two separate “TIN DIBA” and sealed the sample packet by marking them as ‘A-1’ and ‘A-2’. P.W.12 stated that he deposited ‘A-1’ and ‘A-2’ before the Court of the S.D.J.M., Berhampur on 29.01.2008 for onward transmission of the same to the chemical examiner. Ext.15 is the forwarding report of the SDJM,

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Berhampur. However, the report of the chemical examiner (Ext.16) revealed that he received two nos. of sealed “paper packets” on 30.01.2008 (Ext.15) marked as ‘A-1’ and ‘B-1’. If at all representative samples of alleged ‘Ganja’ was kept in “TIN DIBA” by P.W.10 and sealed at the spot by his brass seal on 28.01.2008 and when forwarding report is of dated 29.01.2008 and when P.W.12 deposed that on 30.01.2008 he commanded constable 380 to RFSL, Berhampur along with the sealed parcel to produce the same before the Deputy Director, RFSL, how RFSL received paper packet instead of “TIN DIBA” is a factor that remained unexplained. P.W.12 deposed that on 29.01.2008 he produced the seized articles before the Special Judge but when the Court was not functioning due to agitation by local Bar, on the direction of the Special Judge he kept the seized articles in safe custody. His evidence further revealed that on 29.01.2008 at 9 p.m. he received Ext.15 and sample packets from the Court and kept in P.S. Malkhana in safe custody and at 9.30 p.m. he deputed constable 380, Saleman Bhuyan (P.W.5) with the same to RFSL but when the office was found closed at that hour of the night he re-deposited the parcel ‘A-1’ and ‘B-1’ in Malkhana at 9.45 p.m. and again removed that ‘A-1’ and ‘B-1’ from Malkhana on 30.01.2008 and transmitted to RFSL through Constable No.380. No Malkhana register dated

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29.01.2008 and 30.01.2008 of Baidyanathpur Police Station produced and proved to show that ‘A-1’ and ‘B-1’ received back from the Court of the SDJM, Berhampur on 29.01.2008 were redeposited in P.S. Malkhana for safe custody. Malkhana register of those dates showing deposit, removal, further deposit and further removal between 28.01.2008 to 30.01.2008 as testified by P.Ws.10 and 12 being not produced, what precautionary measures taken to avoid tampering of ‘A-1’ and ‘B-1’ brought on record. In such circumstances, when the Malkhana register showing entries with effect from 28.01.2008, 29.01.2008 and 30.01.2008 not produced and proved, and particularly when that sample ‘TIN DIBAS” were not received by the RFSL as appearing from chemical examination report (Ext.16) and apparently when seized brass seal was not kept in custody of P.W.11 (Simanchal Sahoo), it is most unsafe to hold what was sent to the chemical examiner was the representative sample of the alleged seized articles as per M.Os.I and II. In this regard, a reliance can be placed on a decision of this Court in the case of

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Baikunthanath Sitha vrs. State of Orissa, 2015 (II) OLR 709,

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wherein it has been held as follows :-

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“xxxxx xxxxxx xxxxx Even for the sake of argument, the evidence of the investigating officer is accepted that he had seized the attaché (M.O.I) said to be containing ‘Ganja’ from the possession of appellant still then there being no convincing material to show that any representative

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sample drawn therefrom were examined by the expert (P.W.5) and also chemically examined, the evidence of P.W.5 and the chemical examination report (Ext.9) is of no assistance to the prosecution to prove that the article found in the possession of the appellant was ‘Ganja’.

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In absence of any convincing evidence with regard to the safe custody of the articles seized as well as nexus of the articles seized from the possession of the appellant with the representative sample drawn, the appellant could not have been made liable for possession of ‘Ganja’ violating the provision of 8(c) of N.D.P.S. Act punishable under Section 20(b)(i) of the N.D.P.S. Act as it then was.

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Further this Court in the case of State of Orissa vrs. Anil

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Kumar Gupta, 2015(I) OLR 75 has held as follows :-

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“The sample bags were sent for chemical examination on 31.03.1994, three days after the occurrence and no explanation is given with regard to such delay. In such a state of affairs in the evidence, when the trial court has failed to arrive at a conclusion in the certainty that what was seized from the possession of the respondent was actually analyzed by the chemical examiner to have been established, this Court find no such justifiable reason to differ with the same. The trial court thus appears to have rightly arrived at a conclusion that prosecution has failed to prove this aspect of the case with clear, cogent and acceptable evidence to fasten guilt upon the respondent for the purpose of holding him to have been in possession of the ganja as per the case projected by the prosecution. In view of the above, in my considered view, the prosecution has failed to establish the factum of collection of samples, proper sealing of the seized articles so as to establish beyond reasonable doubt that the articles recovered from the possession of the respondent were the subject matter of chemical examination for the examination report, Ext.7 to form the basis in establishing the required nexus.”

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Further this Court in the case of Sinic Patricia vrs. State,

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(1994) 7 Orissa Criminal Reports 277 has held as follows :-

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“It is held that it is for the prosecution to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets during the retention of those packets at the police station and the seized articles were very articles produced before the Magistrate for sending them to the Chemical Examination.”

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11. There is thus, no convincing evidence with regard to the safe custody of samples of ‘A-1’ and ‘B-1’, M.Os.I and II, sample ‘A-2’ and ‘B-2’. The chemical examination report (Ext.16) does not agree with the evidence of P.Ws.10 and 12. When “TIN DIBA” said to have been used for preserving samples not found by the chemical examiner, it is unsafe to hold that any representative sample drawn from M.Os.I and II were examined by the chemical examiner, particularly the evidence of P.Ws.10 and 12 is of no assistance to the prosecution to prove that the articles found in the possession of the appellant was ‘Ganja’. All such infirmities strike at the very root of the prosecution. Here, as record reveals, P.W.10 conducted almost all part of the investigation. He being the Officer who detected the crime made search and seizure of the contraband article, should not have investigated the case. An officer conducting search and seizure under the Act is bound to follow the procedure envisaged under the law and cannot act as per his choice and fancy what P.W.10 has done here. In this regard, a reliance can be placed on a

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decision of the Apex Court in the case of State by Inspector of

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Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu

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vrs. Rajangam, (2010) 15 SCC 369.

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12. In absence of any convincing and inspiring evidence with regard to the safe custody of the article seized and also leaving out possibility of meddling of the articles seized as well as nexus of the articles seized from the possession of the appellant with the representative samples drawn under ‘A-1’ and ‘B-1’, the appellant could not have been made liable for possession of ‘Ganja’ violating the provisions of Section 8(c) of the Act punishable under Section 20(b)(ii)(C) of the Act.

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13. Thus, there being gross discrepancy between the evidence of P.W.10 in one hand and P.Ws.2 and 4 on the other regarding the place of seizure, opening of attaché-cases by P.W.10 before arrival of Gazetted Officer (P.W.6) and factum of recovery of contraband articles, it is unsafe to record a conviction accepting the version of the official witnesses in the absence of independent corroboration. That apart, the questioned brass seal being not produced in Court and its whereabout being not known and particularly when relevant Malkhana register not produced and proved to establish safe custody of seized articles and samples and when chemical examiner received different sample containers than the sample

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containers said to be containing representative samples drawn, proper sealing of seized articles is not established beyond all reasonable doubt, there is nothing on record to show what was recovered from the possession of the appellant were the subject matter of chemical examination, the entire prosecution evidence is fragile and does not inspire confidence.

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14. Hence, on reappraisal of the evidence on record, this Court is of the opinion that the trial court grossly erred in appreciation of the evidence on record to come to a conclusion that the appellant was found to be in possession of ‘Ganja’ of 23 Kgs. 300 grams in breach of the provisions of Section 8(c) of the Act.

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15. Therefore, I would allow this criminal appeal and setaside the impugned judgment of conviction and order of sentence passed against the appellant. Consequently, the appellant is acquitted of the charge under Section 20(b)(ii)(C) of the Act and he be set at liberty forthwith, if in custody, unless his detention is required otherwise.

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L.C.R. received be sent back forthwith along with a copy

of this Judgment.

S.Pujahari, J.

……………………..…

Orissa High Court, Cuttack, The 10^th day of May, 2017 /MRS

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