Orissa High Court
Anadi Charan Parida vs The State on 22 January, 1997
Equivalent citations: 1997CRILJ2202
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The appellant has been convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act') and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default, to undergo further rigorous imprisonment for two years.
2. Prosecution case, in brief, is as follows. P.W.3, the Inspector of Police, C.I.D. Crime Branch, Cuitack, on receipt of reliable information that the accused, a peon of S.C.S. morning College, Puri, was involved in clandestine business in Narcotic drugs, conducted surprise raid in the house of the accused at Banki Muhan, Puri, on 6-10-94 at 6.30 A. M. in presence of outsider witnesses, P.Ws. 1 and 2 after observing all the formalities. In course of search two swords, one gupti and one match box containing three pieces of burnt jari and two pieces of half burnt cigrattes were recovered from inside the bed room and twenty packets of brown sugar were recovered from the thatched roof of the bed room. Samples were drawn in presence of witnesses and were sent to the F.S.L. Rasulgarh, for chemical examination on the next day and after completion of investigation charge sheet was submitted alleging commission of offence under Section 21 of the Act.
3. The plea of the accused was one of denial. It was specifically stated that the house from which the alleged seizure took place did not belong to the accused.
4. Apart from P.Ws. 1 to 3 who have already been introduced, prosecution examined three other witnesses, of whom P. W.4 is the Gold Smith who weighed the seized materials, P.W.5 is an official witness who was present at the time of search and seizure and P.W.6 is the subsequent Investigating Officer who took charge of the investigation from P.W.3 on 1 7-12-94. Though the two independent witnesses did not support the prosecution case in full and were declared hostile, relying upon the evidence of P.Ws. 3 and 5 regarding search and seizure, the trial Court convicted the appellant under Section 21 of the Act.
5. In this appeal, the learned counsel appearing for the appellant has submitted that provisions of Section 42 having not been complied with, the order of conviction cannot be sustained. It is also contended that even assuming that the provisions of the section had been complied with, in the absence of any acceptable evidence to the effect that the house in which the alleged seizure took place was under the occupation of the appellant, the order of conviction is vulnerable. Besides, the learned counsel has also contended that the articles seized had not been kept in proper safe custody before being sent for chemical examination and moreover there has been inordinate delay for the chemical examination vitiating the trial.
6. P.W.3 conducted the raid on the basis of prior information. He has staled in his evidence that on 6-10-94 an information was received that the accused was dealing with clandestine business in Narcotic drugs and the raid was conducted thereafter. Before proceeding to conduct the search and seizure, this information allegedly received by P.W.3 has not been reduced to writing as required under Section 42(1) of the Act. As has been held by the Supreme Court in (1994) 7 OCR (SC) 283 : (1994 Cri LJ 3702), State of Punjab v. Balbir Singh, which has been followed in several decisions of this Court the requirement regarding reducing the information received to writing is mandatory and non-compliance of such mandatory provision has the effect of vitiating the trial. The learned counsel for the State submitted that the F.I.R. itself indicates that the search was effected after receiving information regarding clandestine involvement of the accused in Narcotic drugs and us such it should be held that requirement of Section 42(1) has been complied with. The F.I.R. Ext. 7/2 was recorded at 9.30 A.M. whereas the search and seizure took place at 6.30 A.M. Therefore, it cannot be said that before effecting search and seizure the information received had been reduced to writing as required under Section 42(1) of the Act. The learned counsel for the State has also relied upon Ext. 13, the confidential report, sent by the D.S.P., Crime Branch, to the Suprintendent of Police to indicate that the information received earlier had been reduced to writing. Ext. 13 is dated 1-10-1994 whereunder the D.S.P. sought for permission to organise the raid with the help of C.I.D. Crime Branch Officers on 6 10-94. P.W.3, the person who conducted the raid has stated in his examination in chief that the information was received on 6-10-94. In view of such discrepancy it is not possible to accept the contention that in fact prior information had been received and had been reduced to writing. As such, the contention on behalf of the appellant regarding non-compliance of Section 42(1) of the Act is to be accepted.
7. The learned counsel for the appellant submitted that there is no acceptable material on record to indicate that the house from which the contraband articles were allegedly seized was under the possession of the appellant. Combating this contention the learned counsel for the State has submitted that on the basis of evidence of P.Ws.1, 2, 3 and 5 it should be held that the contraband articles had been found from the house of the accused and since the raid was conducted in early morning in presence of the accused, in the absence of any explanation it must be taken that the accused was in possession of the contraband articles found from inside his house.
Though P.Ws. 1 and 2 have been declared hostile, there is no bar in law to accept their evidence if the same is otherwise reliable. P.W.1 has stated that the police personnel had surrounded the house of the accused and thereafter he and the police personnel had entered inside the house of the accused. Similarly, P.W.2 has stated that he found the house of the accused was a thatched house and further by the time of house search the accused was inside his house. Relying upon such evidence of P.Ws. 1 and 2, it is contended that it must be taken that the accused was in possession of the house from where the contraband articles were recovered. However, a perusal of the cross-examination of these two witnesses as clearly indicates that these witnesses had no personal knowledge regarding the possession of the house in question. P.W.1 in his cross-examination has stated that prior to the search he had never gone to the house of the accused and he had not seen any document relating to the house searched. He has further stated that he did not know the owners of the adjoining houses. In paragraph-8 he has stated that "I cannot say whether or no! the accused resides in the house searched." Similarly P.W.2 in his cross-examination has stated that "1 am not in visiting terms with the house of the accused. I cannot say whether the house belongs to the accused." Admittedly P.Ws. 3 and 5, the official witnesses, who were members of the raiding party have no personal knowledge regarding the ownership or possession of the house in question. In such state of oral evidence and in absence of any documentary evidence indicating about the ownership or possession of the house in question, it would be hazardous to come to a conclusion that in fact that house from where the contraband articles were allegedly seized belonged to the accused or was under his possession.
The learned counsel for the State submitted that since the accused was found in the early morning in the house when the seizure was effected it must be held that he was under possession of the house. Merely because the accused was found in the house from where (he contraband articles were allegedly seized it cannot be assumed that he was either the owner of the house or in possession. It is quite possible that the accused had one there for someother purpose. Whether the accused was in possession of the house or not could have been easily proved by the prosecution by examining the neighbours or other persons having personal knowledge in the matter as well as by proving relevant documents relating to ownership/possession of the house. In the absence of any such evidence it would not be proper to come to a definite conclusion that the accused was in fact in possession of the house merely because he was found in the house at the time of alleged search and seizure. The articles were found from inside the room and thatch but not from the possession of the accused. Therefore, it cannot be said that the accused was found in possession of contraband articles.
8. In view of the aforesaid conclusion, it is unnecessary to delve into the question of safecustody of the seized articles and the so-called delay in obtaining the report of Chemical Examiner.
9. In the result, the order of conviction cannot be sustained. The appeal is accordingly allowed. The appellant be released forthwith if he is not required in connection with any other case.