Judgment:
P.K. Patra, J.
1. The appellants (father and son) have challenged the impugned judgment dated 20.8.1997 passed by Sri D.K.Sahu, Sessions Judge-cum-Special Judge, Phulbani in S.T.No. 121 of 1996, convicting them Under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1989 (for short 'the Act') and sentencing each of them to undergo rigorous imprisonment for five years and to pay of fine of Rs. 5,000/- in default, to undergo rigorous imprisonment for a further period of three months.
2. Briefly stated, prosecution case runs as follows :
On 5.11.1996 at 2.00 p.m. the officer-in-charge, Balliguda Police Station (P.W.4) received reliable information that Ganja had been kept in a black tin box in the sweet-meat shop/stall belonging to appellant No-1 Udayanath Swain situated by the side of the road at Gandhi Chhack in Balliguda town. The said information was entered in the Station Diary vide S.D.E. No. 97 dated 5.11.1996 (Ext.4) and after intimating his superior officials; Circle Inspector and Superintendent of Police over phone, P.W.4 proceeded to the spot accompanied by the Tahasildar-cum-Executive Magistrate, Balliguda (P. W. 1) and other police officials. Appellant No. 1 with his son (appellant No. 2) were present in the Sweet-meat Shop at the time of arrival of the raiding party. After serving notice on them in owriting to search the said shop, P.W.4 searched it and recovered one black tin box (M.O.I.) which had been kept below a table under lock. The lock of the box was broken open and it was found that the same comprised of two compartments and on the upper compartment, shirts, pants along with napkins and below these things there was a cloth bag containing Ganja had been kept and in the lower compartment, a polythene packet containing Ganja had been kept. By dint of his experience of fifteen years and from the smell and appearance of the contents of the cloth bag and the polythene packet, P.W.4 could know it to be Ganja, On weighment, it was found that the cloth bag contain 8 kgs. 500 gms. of Ganja and the polythene packet contain 4 kgs. 200 gms. of Ganja. After drawing up samples of 300 grams from each of them, the cloth bag and the polythene packet with the balance quantity of Ganja and the two sample packets were sealed using the brass seal of P.W.I and were seized in presence of local witnesses. P.W.4 drew a plain paper F.I.R. at the spot and took up investigation and on his return to the Police Station, registered the case. During investigation, it transpired that four other accused persons implicated in this case, had brought the Ganja from Assam and sold the same to the appellants. The appellants and the other four accused persons were arrested and produced in Court in custody and one of the two sample packets was sent for examination and as per the chemical examiner's report (Ext.8), the sample packet was found to contain Cannabis (Ganja). After completion of investigation, P.W.4 submitted charge-sheet Under Section 20(b)(i) of the Act against the six accused persons who stood their trial.
The trial Court found the appellants guilty and convicted them and acquitted four accused persons observing that prosecution failed to bring home the charge against them.
3. The plea of defence is one of denial.
4. Shri D. Nayak, learned counsel for the appellants and learned Addl. Standing counsel, were heard at length. Sri Nayak contended that the impugned judgment of conviction is unsustainable in law and is liable to be set aside since the prosecution has failed to establish beyond all reasonable doubt that the appellants were in exclusive and conscious possession of the contraband article. The learned Addl. Standing Counsel supported the impugned judgment.
5. In order to bring home the charge against the appellants, the prosecution has examined five witnesses; of whom P.W.4 is the Police Officer who detected and investigated the case and P.W.I is Tahsildar- cum-Executive Magistrate who had accompanied P.W.4 to the place of seizure. P.W.2 is the Manager of Santosh Lodge, Balliguda and P.Ws. 3 and 5 are two independent witnesses to the seizure who did not support the prosecution case and turned hostile. The defence has examined none.
6. The learned Sessions Judge placed reliance on the statements of the two official witnesses; P.Ws.l and 4 and held that prosecution has been able to establish the charge against the two appellants beyond all reasonable doubt and accordingly convicted them and acquitted four other co-accused persons holding that prosecution has not been able to bring home the charge against them.
7. It is the case of the prosecution that the two appellants were running the Sweet-meat Shop located at Gandhi Chhack, Balliguda town and from the said shop the tin box (M.O.I) containing contraband Ganja was recovered in presence of the appellants and that the appellants had purchased the Ganja from the four co-accused persons who have since been acquitted. According to P.W.I the said shop of the appellants has been constructed encroaching upon a portion of the public road for which case was pending against the appellants and that the tin box (M.O.I) kept under the table, was visible from the road. But according to P.W.4, M.O.I, was not visible from the road and further according to him appellants had purchased Ganja brought from Assam by the four co-accused persons, for the purpose of business, and hence the appellants and four co-accused persons were implicated in this case. The Manager of the Lodge (P.W.2) has been examined by the prosecution to establish that one of the four co-accused persons brought the black tin box (M.O.I) from the lodge, but P.W.2 turned hostile and did not support the prosecution case. No witness has been examined in support of the prosecution case that the four co-accused persons sold the contraband Ganja to appellants and that appellants were ever dealing in contraband Ganja without authority. Though P.W.4 has stated that some shirts, pants and napkins were found on the upper chamber of M.O.I., which were sized along with the contraband Ganja and cash of Rs. 975/- from the shirt pocket of appellants No. 1, the garments have not been produced in Court and it is not known to whom the garments belonged. The Investigating Officer (P.W.4) did not direct investigation to find out as to whom the shirts, pants and napkins belonged. Apparently the same cannot be believed to be belonging to any of appellants, since as per the statement of the I.O. (P.W.4) the appellants did not possess the key of the lock put on the box for which the lock was broken open and subsequently the key of the said lock was recovered from co-accused Kamal Singh Behera alias Digal, who has since been acquitted. The key seized from the said accused has also not been produced in Court. The possibility of accused Kamal Singh Behera alias Digal keeping the M.O.I in the Sweet-meat Stall of appellants, which is accessible to public, retaining the key of the lock with him and without disclosing the contents therein to the appellants, cannot be overruled. Had appellants purchased Ganja from four co-accused persons, they could not have kept the same under lock in the tin box (M.O.I) and the key of the lock could not have been taken away by the vendor. Had the appellants been unauthorisedly dealing in contraband Ganja, some quantity of Ganja could have been found inside the Sweet-meat Stall. The cash of Rs. 975/- seized from the shirt pocket of appellant No. 1 cannot be said to be the sale proceeds of contraband Ganja, since the same can be said to be the sale proceeds of the Sweet-meats.
8. In the circumstances, as stated above, it cannot be held that the appellants were in exclusive and conscious possession of the contraband Ganja seized in this case. The learned Sessions Judge has failed to appreciate the evidence on record properly and correctly and has overlooked the above circumstances and has reached the erroneous conclusion that the prosecution has been able to establish its case against both the appellants beyond all reasonable doubt. The finding of the learned Sessions Judge is unsustainable in law and is liable to be set aside. In the case of Krushna Dora v. State reported in (1994) 7 OCR 590, it has been held by this Court 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 if the prosecution evidence lacks in that respect, the appellant would be entitled to acquittal. In the case of Jadumani Sahu v. State reported in 1997 (3) Crimes 486, it has been held by this Court that when 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 absence of the same, the appellant could not be held to have been in exclusive possession of the house and contraband article, so as to fasten the liablility.
9. In view of the above discussions and keeping in view the principles enunciated in the cases referred to above, the appellants cannot be held guilty of the charge levelled against them and they will be entitled to acquittal. The impugned judgment is unsustainable in law and is liable to be set aside.
10. In the result, the Criminal Appeal is allowed. The impugned judgment dated 20.8.1997 in S.T. No. 121/97 passed by the Sessions Judge-cum-Special Judge, Phulbani is set aside. The conviction of the appellants Under Section 20(b)(i) of the Act and the sentences passed thereunder are set aside and the appellants are found not guilty and are acquitted of the charge. They be set at liberty forthwith, if their detention is not required in any other case.