Kumar Bira vs State Of Orissa

S.S. Mishra, J. The present Criminal Appeal is arising out of the judgment of conviction and the order of sentence dated 31.10.2006 passed by the learned 1st Additional Sessions Judge, Cuttack in G.R. Case No.1135 of 2004, whereby the appellant was convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.20,000/-, in default, to undergo further rigorous imprisonment for six months.

Heard Mr. Bikram Keshari Raj, learned counsel appearing for the appellant and Mr. Ashok Kumar Apat, learned Addl. Government Advocate for the State-respondent.

The prosecution case, in brief, is that on 21.07.2004 at about 2:10 P.M., A.S.I. P.K. Mishra of Purighat Police Station received reliable information that a person was staying in Mini Lodge, Cuttack and was dealing in contraband ganja. The information was entered in the Station Diary vide Entry No. 908 and communicated to the Inspector-in-Charge, who directed Sub-Inspector Sarada Prasad Das to conduct a raid with the assistance of other police personnel. The information was also communicated in writing to the Superintendent of Police. The raiding party proceeded to Mini Lodge where, with the assistance of the Hotel Manager and an employee, they reached Room No.11 allegedly occupied by the accused, Kumar Bira, son of Panchia Bira of Village Chandiput, P.S. Mohana, District Gajapati.

Upon being informed of the purpose of the search and allegedly being given the option of being searched in the presence of a Magistrate or a Gazetted Officer, the accused opted for the presence of an Executive Magistrate. After the arrival of the Executive Magistrate, the room was searched. Although no incriminating article was recovered from the personal search of the accused, one rexin bag and one attache case found inside the room allegedly contained five kilograms of ganja each, making a total recovery of ten kilograms. Two samples of 25 grams each were drawn from each packet, sealed, labelled and seized in accordance with the prosecution version.

The accused was arrested on the spot, the seized articles were deposited in the police malkhana, and the samples were forwarded to the State Forensic Science Laboratory, Rasulgarh, which confirmed that the samples contained the flowering and fruiting tops of the cannabis plant (ganja). Upon completion of investigation, charge-sheet was submitted against the accused for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

In order to substantiate the charges, the prosecution examined nine witnesses. P.W.1 was the Manager of the Hotel and P.W.2 was another employee of the said Hotel, in whose presence the alleged search and seizure were carried out. P.W.6 was the weighing man Surendra Prusty, P.W.5 was the informant and detecting Officer, P.W.4 and PW.7 were other police officials who assisted P.W.6 in the raid, P.W.3 was the Executive Magistrate, P.W.9 was the then I.I.C. of Purighat P.S. and P.W.8 was the Investigating Officer. The defence of the appellant is one of complete denial and did not examine any witness.

The learned trial Court, upon appreciation of the evidence adduced by the prosecution, held that the prosecution had successfully established beyond reasonable doubt that the accused was found in conscious possession of ten kilograms of ganja recovered from a rexine bag and an attache case kept inside Room No.11 of Mini Lodge, Cuttack. The trial court observed that the minor discrepancies in the testimonies of the prosecution witnesses regarding the time of raid, presence of police personnel, weighment and other procedural details were natural and did not affect the core of the prosecution case. It further held that the mandatory provisions of Sections 42, 50 and 57 of the NDPS Act had been substantially complied with, accepted the chemical examination report confirming the seized substance to be ganja, and concluded that the prosecution had proved the conscious possession of the contraband by the accused. Accordingly, the accused was convicted under Section 20(b)(ii)(B) of the NDPS Act and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.20,000/-, with a default sentence of rigorous imprisonment for six months. The relevant part of the aforesaid judgment is reproduced herein for ready reference:-

During the pendency of the present appeal, this Court considered it necessary to ascertain the identity and present whereabouts of the appellant in view of the considerable lapse of time since the filing of the appeal. Accordingly, a direction was issued calling upon the concerned police authorities to submit an inquiry report. In compliance with the said direction, an inquiry report was placed before this Court. The report revealed that despite local verification and inquiry, the appellant could not be located and his present whereabouts remain unknown.

The inquiry report further records that verification was conducted at the address furnished in the prosecution records, namely Village Chandiput under Mohana Police Station, in the presence of the Sarpanch and other respectable villagers. During such verification, it was found that no person by the name of Kumar Bira, son of Panchia Bira, as described in the prosecution records, was residing in the said village. The report also refers to the written certificate issued by the Naib Sarpanch certifying that no such person was residing in the village.

Be that as it may, it is evident from the records that the appellant remained in custody from the date of his arrest on 21.07.2004 till he was released on bail on 04.10.2007, thereby undergone incarceration for a considerable period of time. The appeal has remained pending for nearly two decades and there is nothing on record to indicate that the appellant has misused the liberty granted to him during the pendency of the appeal or has been involved in any subsequent criminal activity. At this distant point of time, when the appellant's whereabouts are not known despite earnest efforts by the police authorities and after having already undergone substantial imprisonment, this Court is of the considered opinion that directing the appellant to surrender and undergo the remaining part of the sentence would serve no useful purpose and would not advance the ends of justice.

Having regard to the totality of the facts and circumstances, particularly the prolonged lapse of time since the occurrence, the period of incarceration already undergone by the appellant between 21.07.2004 and 04.10.2007, the inquiry report submitted pursuant to the direction of this Court indicating that the appellant's present whereabouts are not known, and in order to strike a balance between the interests of justice and the peculiar facts of the present case, this Court is inclined to interfere with the sentence alone. While affirming the conviction of the appellant under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, the substantive sentence of rigorous imprisonment of six years imposed by the learned trial Court is modified and reduced to the period already undergone by the appellant.

Accordingly, the Criminal Appeal is partly allowed.