Orissa High Court
Santosh Patra & Others vs State Of Orissa on 10 November, 2014
Equivalent citations: 2015 CRI. L. J. 1474, (2015) 148 ALLINDCAS 603 (ORI), (2015) 119 CUT LT 744, (2015) 1 ORISSA LR 236, (2015) 60 OCR 565, (2015) 3 RECCRIR 506, (2015) 2 CRIMES 31, 2015 (89) ACC (SOC) 53 (ORI)
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA ; CUTTACK
CRIMINAL APPEAL NO.79 OF 2008
From the judgment dated 22.12.2007 passed by Shri R.K.Banerjee,
Addl. Sessions Judge-cum-Special Judge, Bargarh, in C.T. Case
No.166/2006.
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Santosh Patra & others ... Appellants
Versus
State of Orissa ... Respondent
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For Appellant Nos.1 & 5 : M/s. Biswajit Nayak
For Appellant No.2 : M/s.Manoj Kumar Rajguru
and B.K.Mishra
For Appellant Nos.3 & 4 : M/s. S.Behera, S.P.Mishra
and S.L.Choudhury
For Respondent : Additional Standing Counsel
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
Date of judgment:10.11.2014.
S.K.Mishra,J. The appellants assail the judgment dated 22.12.2007
passed by learned Addl. Sessions Judge-cum-Special Judge,
2
Bargarh, in C.T. Case No.166/2006 convicting them for the
offence under Section 20(b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the
"Act" for brevity) and sentencing each of them to undergo R.I. for
ten years and to pay a find of Rs.1,00,000/- each in default to
undergo R.I. for a further period of one year.
2. The prosecution case as revealed from the record may be
stated succinctly as follows:-
On December 18, 2008 at 4.00 P.M. a secret message
was received by Sub-Inspector of Excise, District Mobile, Bargarh
Shri Jyotirmay Patel (P.W.1) that ganja was being transported in
a silver colour Indica Car bearing Regn. No.0R-07-E-4411 which
was coming towards Bhatli road, Bargarh Town. The information
was reduced by P.W.1 into writing. He sent a copy thereof to his
immediate superior authority, viz. to the Inspector of Excise
Bargarh as per Ext.18 and thereafter proceeded towards the spot
where the car was expected to come. On reaching the spot, the
raiding party found a Indica car bearing the aforesaid registration
number on the verge of moving on the Highway but the vehicle
could not move, possibly having developed some ignition trouble.
It was found that four persons were sitting in the vehicle on the
verge of moving and it was being driven by the 5 th man who
disclosed his identity as A-1, Santosh Patra. In presence of
witnesses, Sub-Inspector of Excise -Shri Jyotirmaya Patel (P.W.1)
disclosed his identity and intention of search and gave an option
to the accused persons as per Ext.1 as to whether they wanted to
be searched in presence of a Magistrate or in presence of a
gazetted officer. The accused persons, it is alleged, opted for
search in presence of a gazetted Officer. On the requisition of
P.W.1, the Sub-Divisional Police Officer, Bargarh, Shri Prasanta
Kumar Bhoi (P.W.3), who is a gazetted Officer arrived at the spot.
3
On personal search of the accused persons no incriminating was
found on their person. When the car was searched, a brown
colour air bag, a royal colour attaché box, a red brown colour air
bag, a black colour air bag and one sky colour allwyn attaché
were found in the dickey of the Indica car. The bags were filled
with ganja wrapped in polythenes. Weighing scale were brought
and the polythene packets taken out from each container were
weighed separately. It was found each bag contained 8 kgs., 9.2
kgs, 10.8 kgs, 8.4 kgs. and 7.6 kgs. Ganja respectively.
Thereafter, P.W.1 collocated samples of 25 grams of ganja from
each container in two separate packets. The sample packets and
remaining ganja as found in each bags were sealed separately at
the spot as required by law, and thereafter all necessary steps
were taken under the Act and rules. P.W.1 prepared the seizure
list, Ext.3, at the spot in presence of the witnesses and copies of
the same were supplied to the accused persons and their
endorsement obtained in Ext.3. At the spot, P.W.1 registered a
case vide District Mobile Excise Case No.45/2006-2007 dated
18.12.2006against the accused persons under Section 20 of the Act. The accused persons were interrogated. The driver of the vehicles could not produce his driving license as well as documents of the vehicle. The case was accordingly seized as per seizure list Ext.3. Immediately thereafter, the seized containers, the sample packets, seized vehicle and the accused persons were handed over to the Officer-In-Charge, Bargarh Police Station, who resealed the seized articles. P.W.1 kept his brass seal in custody of witness, namely Tikeswar Sahu(P.W.4), the samples were analyzed by the Chemical Examiner, who filed a report vide Ext.13, with the finding that the samples were that of ganja, cannabis as defined under Section 2(iii) (b) of the Act. On being satisfied about commission of offence under section 20 of the act by the five accused persons they being unable to explain their 4 physical possession, P.W.1 prosecuted them for alleged commission of offence. After framing of charge, the accused persons pleaded not guilty and, accordingly, they faced trial
3. To substantiate its case, the prosecution has examined five witnesses. P.W.1-Jyoritmaya Patel is the Sub-Inspector, District Mobile, Bargarh, who happens to be the informant and the Investigating Officer of the case, P.W.2-Krushna Chandra Sahu is the Excise Constable, who was a member of the raiding party, P.W.3-Prasanta Kumar Bhoi is the gazetted officer of the rank of Deputy Superintendent of Police in whose presence search and seizure were made, P.W.4-Tikeswar Sahu and P.W.5-Naba Kishore Pattnaik are the so called independent witnesses to the search and seizure. They have not supported the case of the prosecution at the trial and resiled from their earlier statement made before the Investigating Officer. Besides examining witnesses the prosecution has proved and exhibited eighteen documents and also produced material objects marked as M.Os.I to X at the trial.
4. The defence, on the other hand, has neither examined any witness nor produced any document in support of their case.
5. At the time of trial, the accused persons took the plea of complete denial. Their specific case is that they had come to Bargarh to attend a function and while moving around Bargarh Bus Stand, they had been apprehended and implicated in the case.
6. The learned Special Judge, Bargarh, taking into consideration the evidence led on behalf of the prosecution especially the evidence of P.Ws.1 to 3 and the contents of the document filed, has come to the conclusion that the prosecution 5 has proved that the contraband weighing 44 kgs. of ganja, which were seized in course of investigation and inferred that the appellants were in joint criminal possession of the contraband. Therefore, he proceeded to convict and sentence them as aforesaid.
7. In course of hearing, learned counsel appearing for appellant nos.2 to 5, in essences, raised two points. Firstly, it was contended that since the contraband articles were seized from a car, which were occupied by five persons, the exclusive and conscious possession of each of them of the contraband is not established. In this connection, they rely upon the reported case of Avtar Singh and others v. State of Punjab; AIR 2002 SUPREME COURT 3343. Secondly, it is contended by the learned counsel for the appellants that there has been violation of Section 52(3) and Section 55 of the Act. Hence the accused should be set at liberty holding that the prosecution has not proved its case beyond reasonable doubt.
8. The learned Addl. Standing Counsel for the State, on the other hand, argued that possession need not be physical possession but can be constructive, having power and control over the article in question. He relied upon the case of Gunwanti Lal V. State of M.P.; AIR 1972 SC 1756. He further, contended that once possession is established presumption under Section 35 of the Act applied similar to the position in terms of Section 54 where also presumption is available to be drawn for possession of illicit articles. He relies upon the case of Madan Lal & another v. State of Himachal Pradesh; (2003)26 OCR(SC) 287.
9. An examination of the evidence led on behalf of the prosecution reveals that P.Ws.1 to 3 support the prosecution whereas two independent witnesses P.Ws.4 and 5 have turned 6 hostile to the prosecution. On the basis of such hostility of the two witnesses, the learned counsel for the appellants contended that there is no independent corroboration of the evidence of P.Ws.1 to 3 and, therefore, the appellants should not be held guilty of the offence as exclusive and conscious possession could not be proved through the official witnesses.
10. It is seen from the record that the learned Special Judge has taken into consideration the reported case of Danardan Patro v. State of Orissa; 2002(II) OLR 443, wherein this Court has held that in a criminal case the decision should not depend on the whims or mercy of some untrustworthy person who supported the prosecution at the time of investigation and turned hostile at the time of trial. Of course, if any positive evidence is available from such hostile witness that should be duly considered and appreciated. Learned Special Judge has further noted the observation that mere plea of denial or ignorance about the occurrence by such hostile witness is not detrimental to the prosecution in view of other acceptable evidence is on record to prove the charge.
11. Learned trial judge has also taken into consideration the case of Kandhuri Charan Mohanty v. State of Orissa; (2003) 24 OCR 3 which is also a case under Section 29(b)(i) of the Act. It is held in paragraph-7 of the judgment that there is there is no dispute on the principle of law that evidence of official witnesses shall not be discarded for want of independent corroboration or on the mere ground that they are official witnesses. It is, however, well settled that evidence of official witnesses in the absence of independent corroboration because of hostile attitude of the independent witnesses, should be assessed carefully while considering the truth or falsity in the allegation 7 and merit of that evidence. That apart in the case of State Government of NCT Delhi V. Sunil and another; 200(7) Supreme 728, it has been held by the Supreme Court that it is not legally approvable procedure to presume the police action as unreliable to start with nor to jettison such action merely for the reason that independent person did not support the prosecution case.
12. Thus, on a careful examination of the evidence of P.Ws.1 to 3, this Court found that there is ample corroboration of the factum of seizure by each other and the Court, that has recorded their evidence, has come to the conclusion that these witnesses are trustworthy and reliable witnesses. The appellate court should not lightly brush aside such conclusion as the trial judge has seen the demeanor of the witnesses as the evidence has been recorded in his presence. Thus, hostility of P.Ws.4 and 5 will not help the appellants in throwing away the case of the prosecution.
13. P.W.1 gave a detailed narration of the fact which is in tune with averments incorporated in his first information report lodged at the spot. He found accused Santosh Kumar Patra and four other accused persons in that car. M.Os.1 to V were found in the dickey of Indica car where those five accused persons were traveling. The driver neither had any driving licence nor the documents of the vehicle were with him. No one came forward to claim the vehicle. The search and seizure was made in presence of a Deputy Superintendent of Police. The evidence shows that immediately after formalities of search and seizure were performed, the accused persons and seized articles were produced before the Officer-in-charge, Bargarh Police Station for safe custody.
814. It is not disputed that the vehicle from which the seized air bags and attaché were seized were occupied by five persons. So relying upon the case of Avtar Singh and others v. State of Punjab (supra), learned counsel for the appellants contended that it is quite probable that one of them could be the custodian of goods whether or nor he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods.
15. The Supreme Court in the case of Megh Singh v. State of Punjab; (2003) 26 OCR (SC)-523 has held as follows:
"The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Orsa. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person whom physical possession is given holds it subject to that power or control.
The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) AII ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession 9 of the same. (See Sullivan v. Earl of Caithness ( 1976 (1) AII ER 844 (QBD)).
Once possession is established, the person who claims that it is not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. V. State of Himachal Pradesh (2003) 26 OCR (SC) 287."
16. In the case of State of Hariyana v. Jarnail Singh and others; (2004)28 OCR 430 such joint possession has been upheld by the Supreme Court and conviction has been recorded.
17. From reading of the aforesaid cases reveals that in the case of Madanlal and another v. State of Himachal Pradesh (supra) four persons were traveling in a car together, in the case of Megh Singh v. State of Punjab (supra) three persons were found sitting on gunny bags and in the case of State of Hariyana v. Jarnail Singh and others (supra) three persons were sitting in the cabin of the tanker and the 4 th man was driving the vehicle. From the middle chamber of that tanker 73 gunny bags containing poppy husk were recovered and in all the three cases it was held that the recovery of the contraband were from the conscious possession of the accused persons.
18. Therefore, in view of the aforementioned decisions in favour of the prosecution, this Court is not inclined to accept the view taken by the Supreme Court in the case of Avtar Singh and others v. State of Punjab (supra). Thus, this Court holds that the prosecution has proved its case beyond all reasonable doubt that 44 kgs. of ganja were seized from the possession of all the 10 accused persons and this Court is not inclined to interfere with the findings recorded by the trial court on that score.
19. The next important contention raised by the learned counsel for the appellants that there has been violation of Sections 52 and 55 of the Act. Section 52 of the Act reads as follows:
"Section 52. Disposal of persons arrested and articles seized.
(1) Any officer arresting a person under Section
41. Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under Sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to,
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under Sec.53.
(4) The authority or officer to whom any person or article is forwarded under Sub-section (2) or Sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article."
Section 55 of the Act reads as follows:
"Section 55- Police to take charge of articles seized and delivered- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the 11 purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
20. In this case it is seen that after seizure, P.W.1 produced the seized article and the accused persons before the Officer-in- charge Bargarh Police Station. Ext.5 is the written requisition, Ext.5/1 is the endorsement of Officer-in-charge, Bargarh Police Station. The Officer-in-charge of Bargarh Police Station has not been examined in this case. The Malkhana Register of that Police Station has not been produced and the relevant entry has not been proved in this case.
21. It is further evident from the statement of P.W.1 that on 19.12.2006 he took custody of the accused persons and the seized articles from Officer-in-charge as per his requisition, Ext.6, and produced the accused persons and seized articles before the Special Court. The accused persons were remanded to judicial custody by the Judge, Special Court. However, in absence of Nazir of the court the seized articles in sealed conditions could not be deposited in court Malkhana and redeposited in a police station Malkhana vide requisition Ext.7 and Ext.7/1 is the acknowledgement of Sub-Inspector-in-charge of Malkhana. Learned court below has held that these two aspects of keeping the seized materials in the custody of the officer-in-charge of the Bargarh Police and redepositing the seized articles in the Police Station Malkhana which is by giving the same to the S.I.-in- charge of the Malkhana are not controverted in this case. The reasoning is fallacious. It is for the prosecution to establish that after seizure of the contraband article till the same was produced before the court and sent for chemical examination, the same should be kept in proper custody so that there will be no chance 12 of any foul play. However, the evidence of P.W.1, in cross examination, at paragraph 17 shows that he has not indicated the relevant time when the seized articles and sample packets were obtained from the Police Station Malkhana for depositing in Court.
22. Similar situation arose in the reported case of Jadaba Dehury @ Dehery v. State of Orissa; (2009) 44 OCR-320 wherein this Court taking into consideration the case of Kedarnath Mallik @ Kedar Mallik v. State of Orissa; 2001 Crl.L.J. 1307 has held that it is well settled that non-compliance of mandatory requirements of the N.D.P.S. Act render a prosecution there under invalid in law and in the facts of non- compliance of the mandate of Section of 55 of the Act shall render the prosecution case vulnerable.
23. Sub-section (3) of Section 52 of the Act provides that every person arrested and article seized under Sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to, (a)the officer-in-charge of the nearest police station, or (b) the officer empowered under Sec.53. In this case, it is the case of the prosecution that after seizure of the articles and arrest of the accused persons, the Officer investigating the case forwarded the same to the Officer-in-charge of the nearest Police Station, i.e. Bargarh Police Station. However, no officer of Bargarh Police Station has been examined by the prosecution in this case to substantiate the case put forth by the prosecution.
24. Section 55 of the Act provides that Police shall take in- charge of the articles seized till delivery. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this 13 Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This section provides that if any contraband is seized then the same shall be delivered to the Officer-in-charge of a nearest Police Station for safe custody pending orders of the Magistrate. The Officer-in- charge shall allow any Officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. So two conditions were required to be fulfilled. An Officer may accompany the seized articles shall be allowed by the Officer-in-charge of the Police Station to affix his seal to such articles and take samples thereof. It is further required that all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This provision has been violated in this case as it is not proved in the case that the sample packets, which are drawn by P.W.1, were also sealed with the seal of the O.I.C. of the Police Station in whose interim custody the articles were kept after detection of the seizure. It is further apparent from the record that the brass seal, which was used to seal the articles and sample packets, has not been produced in the Court. The prosecution witness P.W.4, namely Tikiswar Sahu, has denied that the brass seal was kept in his zima on execution of a zimanama. So all these material aspects taken together create doubt in the mind of the court regarding the compliance of Sections 52 and 55 of the Act.
1425. Accordingly, this Court is of the view that the appeal should succeed on the admitted non-compliance of Sections 52 and 55 of the Act and the order of conviction and sentence passed by learned Addl. Sessions Judge-cum-Special Judge, Bargarh, in C.T. Case No.166/2006 should be set aside. Hence the appeal is allowed. The judgment dated 22.12.2007 passed by the learned Addl. Sessions Judge-cum-Special Judge, Bargarh, in C.T. Case No.166/2006 convicting them for the offence under Section 20(b)(ii)(C) of the Act and sentencing each of them to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- each in default to undergo R.I. for a further period of one year is hereby set aside. The appellants are acquitted of the offence alleged. The appellants be set at liberty forthwith, if their detention is not required in any other case.
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S.K.Mishra, J Orissa High Court, Cuttack Dated November 10, 2014/A.K. Behera..
15 Orissa High Court, Cuttack Dated June, 2010/A.K.Behera. 16 Sd/- A.S.Naidu,J. S.C.Parija,J. I agree. Sd/- S.C.Parija,J True Copy Orissa High Court, Cuttack Dated June,2010/A.K.Behera. P.A. 17