STATE OF ORISSAversusKANDURI SAHOO

                              STATE OF ORISSA                                    A
                                        v.
                               KANDURI SAHOO

                              .DECEMBER 4, 2003

             [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                           B
          Narcotic Drugs and Psychotropic Substances Act, 1985:

           S.20(b)(i)-Accused foun.d in possession of contraband articles-
     Sample sent for chemical examination after four days ofalleged recovery- C
     During this period articles alleged to be kept in Excise Malkhana-Report
     of chemical examiner being positive-Conviction by trial court-Acquittal
     by High Court on the ground that there was no explanation about custody
     of articles from the date of alleged recove1y to the date of sending the
     samples for chemical examination-Held, merely because the articles were
     kept in Excise Malkhana for four days that would not make the prosecution D
     versions suspect-Though there was no specific order ofSDJMfor custody
     of the articles when accused was produced in court, it was clearly stated
     in the forwarding report that the seized articles and the sample thereof
     wer~ produced in court along with the accused-The evidence of the
     witness was categorical to the effect that the articles were kept in excise E
     Malkhana from where they Were brought and sent for chemical examinoi-
     tion-Judgment of High Court is set aside and that of trial court restored.

          Valasla v. State of Kera/a, AIR (1994) SC 117, distinguished.

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                   p
     804 of 1997.

          From the Judgment and Order dated 19.9.96 of the Orissa High Court
     in Crl. A. No. 11 of 1996 .
.,
          Radha Shyam Jena for the Appellant.
                                                                                 G
          The Order of the Court was delivered:

          The State of Orissa questions correctness of judgment of a. learned
     Single Judge o.f the Orissa High Court by which the respondent was
     acquitted of the charges under Section 20 (b) (i) of the Narcotic Drugs &   H
                                        487
    488                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A Psychotropic Substances Act 1985 (for sho11 'the Act'). Though the trial
    court found the respondent-accused guilty ofoffences, the High Court held
    that the accusation was not established and, therefore, directed acquittal.

          The factual position is as under :

B         On 13.5.1994 at about 7.00 A.M. the Excise Sub-Inspector, Mobile
    Squad No. l, Cuttack (PW-I) while patrolling with his As$istant Sub-
    Inspector and constables at Gandhi Palli in Cuttack. City noticed the
    accused with a full gunny bag. Being suspicious that the accused was
    carrying contraband articles, he searched the accused in presence of
C   witnesses. He found that the gunny bag contained cannabis (ganja)
    weighing about 12 kg. 50 grams were taken as sample and was sent for
    c~emical examination. The chemical examination report indicated that the·
    sample was cannabis (ganja). On completion of investigation, the accused
    was sent up for trial which ended in conviction and sentence of 5 years
                                                    /
    R.I. and fine of Rs. 5000 with default condition of further imprisonment
D   for six months. The accused denied the charges. In order to bring home
    the accusations, the prosecut_ion examined three witnesses; PW-I, the
    Excise Sub-Inspector, Mobile Squad No. l, Cuttack, P.W. 2 was a witness
    to the seizure and P.W.3 the ASI who accompanied PW-I on patrol_duty.

          PW-2 pleaded ignorance about the contents of the seizure memo
E though he admitted his signature. Considering the evidence on record, the
    trial court held the accused guilty and sentence was imposed.

          In appeal the only question which was urged was that there was no
    explanation about the custody of the articles for a period of four days. With
F   reference to the period of delay, it was submitted that though the seizure
    was allegedly made on 13 .5 .l 994, the sample was sent to the State Drug
    Testing Research Laboratory, Bhubaneswar on 17 .5. l 994 which, accord-
    ing to the accused, was sufficient to discard the accusation. Stand of the
    State before the High Court was that the articles were kept in the safe
G   custody and were deposited in the Excise Malkhana at Cuttack pursuant
    to an order of the S.D.J.M., Cuttack before whom the accused was
    produced at the first instance.

          The High Court found that there was no specific order of the S.D.J.M.
    Cuttack that the articles were to be kept in the Excise Malkhana. That being
H   so, the High Cou11 held that the prosecution versio~ was not acceptable.
                ST ATE OF ORISSA v. KAND URI SAHOO                       489

Reliance was placed in Valasla v. State of Kera/a, AIR (1994) SC 117 to A
support the conclusion. Accordingly the High Court directed acquittal of
the accused.

     In support of the appeal, Mr. Radha Shyain Jena, learned counsel
submitted that the decision in Valasla 's case (supra) is clearly distinguish- B
able on facts. In the said case the delay was not held to be fatal. What
weighed with this case was absence of material regarding safe custody.
Merely because that the articles were kept in the Excise Malkhana for four
days would not make the prosecution version suspect.

       There is no appearance op. behalfofthe respondent in spite of service.   C
      We find that though there was no specific order of the SDJM, Cuttack
for custody of the articles when the accused was produced in the Court on
13.5.1994, it was clearly stated in the forwarding report that the seized
articles and the sample thereof (MOS. I & II) were produced in the Court
alongwith the accused. The evidence of PW-I was categorical to the effect D
that the articles were kept in the Excise, Malkhana from where they were
brought and sent for chemical examination. This relevant aspect, appears
to have been missed by the High Court. In Valasla's case (supra) it was
not laid down that whenever there is delay in sending the samples, the
prosecution version would become vulnerable. What was emphasised E
related to proper and safe custody of the seized articles. In the background_
of that particular case, when delay of three months was there and there was
no clear evidence as to with whom the articles were lying, the decision was
rendered. No evidence was led to show that the contraband articles were
in proper custody and in proper form. But the factual situation is different
here. That being so the High Court's Judgment does not stand scrutiny and F
is set aside. The conviction as done by the trial court was proper. We direct
restoration of the conviction as directed by the trial comt along with the
sentence imposed.

     The accused shall surrender to custody, if he has not served full G
sentence as imposed by the trial court, to serve remainder of sentence.

       The appeal is allowed.

R.P.                                                        Appeal allowed.