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Bhramarbar Dhal Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 327 of 1981
Judge
Reported in1985(II)OLR353
ActsOpium Act, 1878 - Sections 9
AppellantBhramarbar Dhal
RespondentThe State of Orissa
Appellant AdvocateA.K. Bhagat, Adv.
Respondent AdvocateM.R. Mohanty, Addl. Standing Counsel
DispositionPetition dismissed
Cases ReferredYudhistir Pradhan v. State. Learned Advocate
Excerpt:
.....for the petitioner raised the following contentions :(1) the prosecution failed to establish that opium was seized from the exclusive and conscious possession of the petitioner; 6. i have carefully gone through the evidence of the prosecution witnesses, as well as, the defence witnesses and the orders passed by the learned courts below assigning cogent reasons for accepting the prosecution case. his defence, as well as, the evidence of the defence, witnesses to the effect that p. 5. learned advocate for the petitioner suggested that there were other inhabitants in the house and as the opium was not seized from the conscious and exclusive possession of the petitioner, the prosecution must fail. ( as his lordship then was ) speaking for the court held that opium is a substance which once..........analysis and, therefore, it is not possible to hold that it was opium. this theory of sending seized opium for chemical examination has long since been exploded after the decision reported in xxxiv (1968) c l. t. 1, baidyanath mishra and anr. v. the state of orissa was rendered by the supreme court. hidayatullah, j. ( as his lordship then was ) speaking for the court held that opium is a substance which once seen or smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. it is possible for people to identify opium without having to subject the product to a chemical analysis. it is only when opium is in a mixture so diluted that its essential characteristics are' not easily visible or capable of being apprehended by.....
Judgment:

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Sessions Judge, Cuttack, confirming the order passed by learned Sub-divisional Judicial Magistrate, Athgarh, convicting the petitioner under Section 9(a) of the Opium Act and sentencing him to undergo simple imprisonment for one month.

2. The prosecution case in short is that P.. W. 1, a Sub-Inspector of Excise searched the house of the petitioner in the presence of witnesses after observing the necessary legal formalities and seized 20 grams of opium, a receptacle, an opium cutting knife, a weighing scale and a few coins from the petitioner's bed room and seized the aforesaid articles by seizure-list (Ext-1), For possession of opium, the petitioner had no licence. After close of Investigation P. W. 1 submitted prosecution report against the petitioner.

3. The plea of the petitioner was that he had, no knowledge about the search of his house and seizure of opium and other articles from his bed room. He was arrested by P. W. 1 while returning from school where he worked as a Teacher.

4. The learned Courts below recorded concurrent findings to the effect that the house of the petitioner was searched by P. W. 1 in the presence of witnesses P. Ws. 2, 3 and 4 after observing necessary legal formalities. The petitioner was present at that time in his house and gave his signature , in the seizure-list (Ext. 1). From the bed room of the petitioner 20 grams of opium and other articles described in detail in the seizure-list (Ext. 1) were seized. The petitioner had no licence for possession of opium. The evidence or the defence witnesses was disbelieved.

5. Learned Advocate for the petitioner raised the following contentions :

(1) The prosecution failed to establish that opium was seized from the exclusive and conscious possession of the petitioner; and

(2) The article seized was not sent for chemical examination and so it was not established chat it was opium.

6. I have carefully gone through the evidence of the prosecution witnesses, as well as, the defence witnesses and the orders passed by the learned Courts below assigning cogent reasons for accepting the prosecution case. P. Ws. i and 2 were both officers of the Excise Department. They along with the raiding party surrounded the house or the petitioner and after completion of formalities, such as, giving personal search, entered into the petitioner's house along with P. Ws. 3 and 4, two independent witnesses. According to the evidence of P. Ws. 1 and 2 which, in my opinion, was not shaken in cross-examination, 20 grams of opium and other articles used for sale of opium, such as, a weighing scale and an opium cutting knife were seized from the bed room of the petitioner. After the seizure-list (Ext. 1) was prepared the petitioner gave his signature thereon which is a piece of conclusive evidence to prove his presence at the time of search and seizure. It should not be forgotten that the petitioner is a School Teacher, a knowledgeable man, and not an illiterate and ignorant villager. His defence, as well as, the evidence of the defence, witnesses to the effect that P. W. 1 forcibly secured his signature on the seizure-list (Ext. 1) on the way while the petitioner was returning from the school can hardly be believed. P. Ws. 3 and 4, the independent witnesses turned hostile to the extent that they did not support the actual seizure of the opium although they admitted that both of them signed, the seizure-list (Ext. 1) as seizure witnesses. It was, however, ascertained from their evidence that the house of the petitioner was surrounded by the raiding party. Learned Advocate for the petitioner contended that the evidence of P. Ws. 1 and 2 who are officers of the Excise Department and both of whom were connected with the search and seizure of opium from the house of the petitioner should not be believed without independent, corroboration and as there was no independent corroboration, the prosecution case should be entirely disbelieved. In this connection, I am tempted to refer to a recent decision of the Supreme Court reported in 1985(1)SCALE 697, the State of Gujarat v. Shri Raghunath Vamanrao Baxi. It was laid down as follows ;

'...In appreciating oral evidence , the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter Where the witness is found to be partly truthful, or to spring from tainted sources, the Court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation, but a Court is not entitled to reject the evidence of a witness merely because they are Government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers and who might have been requested to assist the investigating agencies.'

In view of this principle and the trustworthy nature of evidence of P. Ws. 1 and 2 partially corroborated by the evidence of P. Ws. 3 and 4 who were independent witnesses, there is absolutely no ground to disagree with the concurrent findings of the learned Courts below to the effect that 20 grams of opium and other articles were seized from the bed room of the petitioner.

5. Learned Advocate for the petitioner suggested that there were other inhabitants in the house and as the opium was not seized from the conscious and exclusive possession of the petitioner, the prosecution must fail. It will appear from the evidence particularly, the, cross-examination which was in great detail that nothing was elicited from the witnesses that there was any other adult male member in the house of the petitioner who was in occupation of the bed room from which the opium was seized. Such plea was also not raised by the petitioner either during trial or before the learned Sessions Judge. There is absolutely no evidence on record to warrant a finding that any other person except the petitioner was living in the house. On the other hand, as discussed above, opium and other articles were seized right from the bed room of the petitioner which suggests that the same were seized from his exclusive and conscious possession.

6. The next contention of the learned Advocate for the petitioner was that the article seized was not sent foe chemical analysis and, therefore, it is not possible to hold that it was opium. This theory of sending seized opium for chemical examination has long since been exploded after the decision reported in XXXIV (1968) C L. T. 1, Baidyanath Mishra and Anr. v. The State of Orissa was rendered by the Supreme Court. Hidayatullah, J. ( as his Lordship then was ) speaking for the Court held that opium is a substance which once seen or smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are' not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary. Of course, an analysis will always be necessary it there is a mixture and the quantity of morphine contained in the mixture has to be established for the purpose of definition. The dictum laid down by the Supreme Court was accepted as laying down the correct law on the subject of chemical analysis of opium by two subsequent decisions of this Court reported in I. L. R 1967 Cuttack 686, Syed Meheboob Ali v. State, and I. L. R. 1970 Cuttack 1020, Yudhistir Pradhan v. State. Learned Advocate for the petitioner relied on a decision reported in A. I. R. 1963 Andhra Pradesh 334. In re Ranmapurama Ayyanna in which a learned single Judge had taken a contrary view to the effect that identification of the substance as opium depending on observations and sense of smell and without sending it to chemical examiner or calling for an opinion of expert is illegal and unacceptable. The decision did not lay down the correct law in view of the principle laid down in the case of Baidyanath Mishra (supra).

In this particular case both P. Ws. 1 and 2, officers of the Excise Department have categorically stated that 20 grams of opium were seized from the exclusive and conscious possession of the petitioner. It was not in a liquid state so that chemical analysis was necessary for finding out the per centage of opium content. It was also not the defence case that the seized opium was in liquid state. Officers of the Excise Department who almost daily come in contact with excisable articles, such as, opium are expected to know from the look and smell of a particular substance as to whether it is opium or not. Both P. Ws. 1 and 2 have stated that opium was seized and, therefore, in the facts and circumstances of this case it was entirely unnecessary to send the article for chemical analysis because, it was proved to be opium.

7. In the ultimate analysis, the contentions raised are without merit and the prosecution was able to bring home the charge to the petitioner. It was disgraceful that a School Teacher entrusted with the sacred duty of imparting learning to school children was found to be in possession of opium without a valid licence. Therefore, the lenient sentence imposed on him cannot further be reduced,

8. In the result, the Criminal Revision is dismissed.


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