Orissa High Court
Smt Pyari Bag vs State Of Orissa on 2 November, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 591 of 2010
From the judgment and order dated 11.10.2010 passed by the
Sessions Judge -cum- Judge, Special Court, Kandhamal-Boudh,
Phulbani in G.R. Case No.5 of 2008 (T.R. No.1 of 2009).
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E. Srinibas ......... Appellant
-Versus-
State of Orissa ......... Respondent
CRLA No. 566 of 2010
Smt. Pyari Bag ......... Appellant
-Versus-
State of Orissa ......... Respondent
CRLA No. 607 of 2010
Smt. Putana Kumbhar ......... Appellant
-Versus-
State of Orissa ......... Respondent
JCRLA No. 11 Of 2012
Kamalesh Mandal ......... Appellant
-Versus-
State of Orissa ......... Respondent
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For Appellant: - Mr. Biraja Prasanna Das
(in CRLA No.591/2010)
For Appellants: - Mr. Anirudha Das
(in CRLA No.566/2010,
CRLA No.607/2010 &
JCRLA No.11/2012)
For Respondent: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 02.11.2017
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S. K. SAHOO, J.The appellant E. Srinibas in CRLA No.591 of 2010, appellant Smt. Pyari Bag in CRLA No.566 of 2010, appellant Smt. Putana Kumbhar in CRLA No.607 of 2010 and appellant Kamalesh Mandal in JCRLA No.11 of 2012 faced trial in the Court of learned Sessions Judge -cum- Judge, Special Court, Kandhamal-Boudh, Phulbani for offence punishable under section 20(b) of the Narcotic Drugs & Psychotropic Substances Act (hereafter 'N.D.P.S. Act') on the accusation that on 07.09.2008 at about 09.30 a.m. on the N.H. No.270 in front of Mahalaxmi Filling Station, Balliguda, in contravention of provision of section 8 of the N.D.P.S. Act, they were found transporting 196 kgs. of ganja (cannabis).
3The learned trial Court vide impugned judgment and order dated 11.10.2010 found the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each only, in default, to undergo rigorous imprisonment for further period of two years.
2. The prosecution case, as per the first information report lodged by Sri K. N. Rao (P.W.8), Inspector in Charge of Balliguda police station is that on 07.09.2008 while he along with A.S.I. S.K. Mishra, C/471 Jaya Krushna Kanhar, C/442 Dusmanta Pradhan were performing road blocking in front of Mahalaxmi Filling Station, Balliguda in view of prevailing law and order situation in presence of Executive Magistrate Manoj Kumar Swain (P.W.9), they found one white colour Tata Sumo vehicle bearing registration no.CG 04 H 1204 came from the side of Dandapadar village and stopped near the road at 9.30 a.m. as barriers were put on there. The informant while checking the vehicle found four persons inside it, out of which two were male and two were female. The male persons were sitting in the front seat whereas the female persons were sitting behind in the back seat. Three plastic bags and one coloured air bag were found in between the front seat and the middle seat whereas six plastic bags were 4 found in the back portion of the vehicle. Smell of ganja was emanating out of the vehicle. When the informant demanded the identity of the occupants, the appellants who were there in the vehicle disclosed their names and addresses and on query, they told that the contents of the bags were ganja. The informant intimated about the detention of the vehicle containing ganja to his official superiors over phone and directed A.S.I. Arpita Khatua (P.W.7) to come to the spot to remain present during search of the vehicle. He also sent requisition to the Sub- Collector, Baliguda to depute a Magistrate to remain present during search of the vehicle and called two witnesses from the locality namely Banamali Behera (P.W.1) and Subrat Kumar Pradhan (P.W.2). The informant received intimation from the office of the Sub-Collector, Baliguda that P.W.9 has been deputed as Executive Magistrate to remain present during search and seizure. The informant along with the other witnesses and the Magistrate gave their personal search to the appellants and nothing incriminating were found from their possession. The vehicle was searched in presence of the witnesses and the Executive Magistrate and three plastic bags and one air bag were seized from the middle seat of the vehicle and six plastic bags were seized from the back portion of the vehicle filled with 5 flowering and fruiting tops of the cannabis plants (ganja). The informant sent A.S.I. S.K. Mishra to call a person to come with weighing instruments and to arrange sealing materials, covers etc. for weighment, sealing and packing of ganja. Muna Patra (P.W.4) arrived at the spot with weighing machine and other required articles and he also gave his personal search and nothing incriminating material was found from his possession. The plastic bags were brought out from the vehicle and on weighment, it was found that the plastic bags marked as "A", "B", "C", "D", "E", "F", "G", "H" "I" and "J" were containing kg.23.750 grams, kg.23.600 grams, kg.23.000 grams, kg.23.600 grams, kg.24.500 grams, kg.24.000 grams, kg.10.200 grams, kg.23.250 grams, kg.17.300 grams and kg.3.800 grams of ganja respectively and the total weight of the ganja came to 196.00 kgs. Two samples of 50 grams each from each of the bags were taken and those were marked as A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2, E-1, E-2, F-1, F-2, G-1, G-2, H-1, H-2, I-1, I-2 and J-1, J-2 respectively. The samples were kept in polythene packets and those were kept in paper packets separately and sealed with the personal seal of the informant. The bulk ganja in the plastic bags were also sealed keeping those in cotton bags separately and the personal seal 6 impressions of the informant were given on it. The weighment slip and drug secret memos were prepared. The specimen sample seal impression of the brass seal was taken on a plain paper in presence of the witnesses and all the sample packets along with bulk ganja were seized in presence of the witnesses and the Executive Magistrate. The white colour Tata Sumo vehicle was also seized in presence of the witnesses. The personal brass seal of the informant with which all the sample packets and bulk ganja bags were sealed, was left in the zima of Banamali Behera (P.W.1) under zimanama. The copies of the seizure lists which were prepared were handed over to the appellants and their signatures were taken on the seizure lists. Since the appellants were found transporting ganja in the Tata Sumo vehicle without any authority, they were arrested by the informant at 3.45 p.m. on 07.09.2008 after informing them the grounds of arrest and after observing all formalities of arrest. The informant drew up the plain paper F.I.R. at the spot and took up investigation and returned to the police station.
On the arrival at the police station, on the basis of such F.I.R., Baliguda P.S. Case No.90 of 2008 was registered on 07.09.2008 under section 20(b) of the N.D.P.S. Act against the four appellants. The informant directed the A.S.I. Arpita Khatua 7 (P.W.7) to take up investigation of the case and he kept the four appellants in the police station lock up.
P.W.7 Arpita Khatua after taking over charge of investigation from P.W.8, examined the informant so also the other witnesses. She visited the spot at 5.45 p.m. and forwarded the appellants to the Court on 08.09.2008. She produced the seized articles along with the sample packets in the Court on 09.09.2008 and made a prayer to forward the samples to the S.F.S.L., Bhubaneswar for chemical examination which was allowed. She kept the seized ganja packets in the Court Malkhana as per the orders of the Court and took the sample packets for sending those for chemical examination. Since there was law and order situation prevailing in the district, the sample packets were kept in police station Malkhana and on 12.09.2008 after normalcy was returned, the sample packets were dispatched to S.F.S.L., Bhubaneswar through constable for chemical analysis. On 24.12.2008 the Inspector in Charge of Balliguda police station took over charge of investigation from P.W.7 and after completion of investigation, charge sheet was submitted on 05.01.2009 under section 20(b) of the N.D.P.S. Act.
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3. The defence plea is one of denial and it is specifically pleaded that no contraband ganja was seized from their possession and they have been falsely implicated in the case.
4. In order to prove its case, the prosecution examined ten witnesses.
P.W.1 Banamali Behera and P.W.2 Subrat Kumar Pradhan who were the independent witnesses to the search and seizure did not support the prosecution case for which they were declared hostile.
P.W.3 Ramesh Chandra Jena was the police constable who was attached to Balliguda police station stated about the seizure of malkhana register, station diary register and issue register of the police station vide seizure list Ext.5.
P.W.4 Muna Patra was the weighman who did not support the prosecution case and he was declared hostile.
P.W.5 Ranjan Bisoi was the police constable who stated to have produced a letter of the I.I.C., Balliguda police station addressed to the S.P., Kandhamal which was seized under seizure list Ext.37. The said letter has been marked as Ext.38.
P.W.6 Ajaya Chandra Muduli was the S.I. of police attached to Balliguda police station and he is a witness to the 9 seizure of station diary, malkhana register and the confidential dispatch file of the police station under seizure list Ext.25.
P.W.7 Miss Arpita Khatua was the S.I. of police attached to Balliguda police station and she is one of the investigating officers.
P.W.8 K.N. Rao was the Inspector in Charge of Balliguda police station and he is informant in the case and he conducted search and seizure of the offending vehicle and seized the contraband ganja.
P.W.9 Manoj Kumar Swain was the Additional Tahasildar -cum- Executive Magistrate, Daringbadi who was present at the spot when the Tata Sumo vehicle was searched by the I.I.C. of Balliguda police station in presence of other official witnesses and independent witnesses and contraband ganja was seized.
P.W.10 Krushna Prasad Patnaik was the Inspector in Charge, Balliguda police station who took over charge of investigation from P.W.7 and seized certain documents and on completion of investigation, submitted charge sheet against the appellants.
The prosecution exhibited sixty seven numbers of documents. Exts.1/12, 2/2, 24/2, 25 and 37 are the seizure lists, 10 Ext.3/2 is the zimanama, Exts. 4/3 to 20/3 are the drugs secret memos, Exts. 21/3 to 23/3 are the weighment slips, Ext. 26/1 is the zimanama, Exts. 27 to 36 are the signatures of P.W.4, Ext.38 is the detailed report of P.W.8 to S.P., Kandhamal, Ext.39 is the requisition of P.W.7 for sending the samples to S.F.S.L., Ext.40 is the forwarding report of S.D.J.M., Phulbani to the Director, S.F.S.L., Exts. 41 to 44 are the written options given by the appellants, Ext.45 is the order of Sub-collector, Baliguda, Ext.46 is a paper containing specimen seal impressions, Ext.47 is the paper cover with affixed impression of brass seal, Exts. 48 to 51 are the arrest memos, Ext.52 is the F.I.R., Ext.53 is the entry made in the station diary vide entry no.254, Ext.54 is the carbon copy of relevant entry in the Malkhana register, Exts. 55 to 64 are the signatures of P.W.8, Ext.65 is the relevant entry in the State Diary Book, Ext.66 is the requisition sent to the R.T.O. and Ext.67 is the chemical examination report.
The prosecution also proved twenty material objects. M.Os.I to X are the seized packets and M.Os.XI to XX are the sample packets of ganja.
5. The learned trial Court while assessing the evidence on record has come to a finding that the two independent seizure witnesses are deposing falsehood either to save the accused 11 persons being gained over by them, as suggested by the learned Public Prosecutor during cross-examination or for any other reason best known to them. It was further held that the evidence of P.W.9, the Executive Magistrate fully corroborates the evidence of the detecting police officer and in absence of any specific material on record to the contrary, it cannot be lightly discarded and outright thrown to the dust merely on the ground that he is an official witness. The learned trial Court further held that on a careful scrutiny of the entire evidence of P.Ws.8 and 9, it appears be quite flawless and trustworthy and also it does not suffer from any sort of infirmity in any manner and therefore, it can be safely relied upon. It was further held that all the appellants are the residents of same village of Chhatisgarh and they were travelling together in the same vehicle having registration number of their own State when detained near the police checking barriers during communal rioting period and therefore, the plea advanced on behalf of the lady accused persons that they found the vehicle going towards Bolangir and travelled in it on request due to communication problem cannot be believed. The learned trial Court further held that the contraband articles were seized from out of the exclusive and conscious possession of all the four appellants travelling together 12 in the said vehicle and as such they are all liable for the same. The learned trial Court further held that the submission of the defence counsel that the search in question having not been made by any lady police officer in view of the provision under section 50(4) of the N.D.P.S. Act, is illegal and entitles the lady accused persons to an acquittal does not appear to have got any force. It was further held that since a public conveyance is searched in a public place in between sunrise to sunsent, the officer making the search is not required to record the satisfaction as contemplated by the provision of section 42 of the N.D.P.S. Act for searching the vehicle and the proviso of section 42 is not applicable, hence the question of non-compliance of provision of section 42 is wholly irrelevant. It was further held that in view of the report of R.T.O., Durg, the registration number displayed in the vehicle during the time of detection of the case is a fake one. It was further held that though due to communication problem on account of communal rioting, the exhibits could not be taken to Bhubaneswar to hand it over at the S.F.S.L. on the same day and there was three days delay in it but in view of the fact mentioned in the chemical examination report about tallying of specimen impression seal with that of the card board box containing samples packets, the question of 13 manipulation/tampering does not arise at all. The learned trial Court further found that there was no irregularity or illegality in keeping of the seized contraband articles under custody and thus there has been no violation of the provision of section 55 of the N.D.P.S. Act. It was further held that since the total quantity of the cannabis recovered from out of possession of the appellants is 196 kgs. which being commercial quantity of ganja, the accused persons are liable to be punished under section 20(b)(ii)(C) of the N.D.P.S. Act.
6. Mr. Anirudha Das, learned counsel appearing for appellants Smt. Pyari Bag, Smt. Putana Kumbhar and Kamalesh Mandal contended that the charge is defective, the evidence relating to safe custody of the sample packets before its production in Court as well as before the chemical examiner is doubtful and there was every chance of tampering with the contraband articles and mandatory provisions under the N.D.P.S. Act have not been complied with and the investigation has been conducted in a perfunctory manner and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants.
Mr. Biraja Prasanna Das, Advocate appearing for the appellant E.Srinivas adopted the arguments advanced by Mr. 14 Anirudha Das and contended that on the face of the materials available on record, the learned trial Court has committed illegality in convicting the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act.
Mr. Prem Kumar Pattnaik, learned Addl. Govt.
Advocate on the other hand supported the impugned judgment and submitted that even though the independent witnesses have not supported the prosecution case but the version of the official witnesses are clear, cogent and trustworthy and they have no axe to grind against the appellants to falsely entangle them in a case of this nature. It is further contended that the seizure was done in the presence of an Executive Magistrate and the articles were seized, sealed and it was properly stored in the police Malkhana before its production in Court and as per the order of the Court, it was also produced before the chemical examiner in sealed condition and therefore, the hypothetical argument that there was every chance of tampering with the seized articles cannot be accepted. The learned counsel further submitted that the mandatory provisions under the N.D.P.S. Act have been duly complied with and even the other provisions which are directory in nature, there was substantial compliance of the said provisions 15 and there is no infirmity or illegality in the impugned judgment and therefore, the appeal should be dismissed.
7. Coming to the first contention raised by the learned counsel for the appellants that the order of framing charge under section 20(b) of the N.D.P.S. Act is defective, it is found that the learned trial Court has mentioned in the charge that the appellants were found in transporting 196 kgs. of ganja. The date, time and place of seizure of ganja and the contravention provision has also been indicated. It is no doubt true that such quantity is punishable under section 20(b)(ii)(C) of the N.D.P.S. Act and the learned trial Court has simply mentioned in the charge to be one under section 20(b) of the N.D.P.S. Act but section 464 of the Cr.P.C. states that no finding sentence or order by a Court of competent jurisdiction shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
The learned counsel for the appellants placed reliance on the decision of this Court in case of Mayadhar Swain -Vrs.- State of Orissa reported in (2000) 19 Orissa Criminal 16 Reports 458, wherein the learned Special Judge framed charge against the accused persons under section 20(b) of the N.D.P.S. Act without specifying whether the offence was under sub-clause
(i) or sub-clause (ii) of clause (b) of section 20 and this Court held as follows:-
"5.........It is evident from the aforesaid provision that for illegal possession of Ganja, charge should have been framed under section 20(b)(i) of the Act which is punishable with rigorous imprisonment for a term which may extend to five years and also fine which may extend to fifty thousand rupees. Section 20(b)(ii) provides for contravention relating to cannabis other than Ganja which is punishable with rigorous imprisonment for a term which shall not be less than ten years, but may extend to twenty years and with fine which shall not be less than one lakh rupees and may extend to two lakh rupees.
So the charge framed against the accused persons in the present case is evidently defective and has occasioned failure of justice."
Learned counsel for the appellants further placed reliance in the cases of Sukadev Samantray -Vrs.- State of Orissa reported in 2000 (II) Orissa Law Reviews 487 and Salim Khan -Vrs.- State of Orissa reported in (2000) 19 17 Orissa Criminal Reports 48 in which similar view has been taken.
In this case when at the time of framing of charge, the date, time and place of seizure, the quantity of ganja seized as well as specific contravention of the provision of the N.D.P.S. Act has been put to the appellants and the charge was read over and explained to them and they pleaded not guilty and claimed to be tried, merely on the ground of omission of specific offence under section 20(b)(ii)(C) and by mentioning section 20(b) in the order of framing of charge, in my humble view cannot be said to have caused a failure of justice even if it can be said to be an irregularity in the framing of charge.
The trial Court dealing with such matter while framing charge is expected to be more careful by mentioning the particular offence for which an accused has to face the trial inasmuch as for different quantities of cannabis, different sub- clauses of section 20(b)(ii) are applicable which prescribes different punishment and the specific offence should be mentioned in the order of framing charge.
However, in the facts scenario and after going through contents of the charge framed, since I am of the view that the irregularity in the framing of charge has not caused any 18 prejudice to the appellants resulting in failure of justice and in fact it appears that the appellants were aware that they are to defend themselves against the accusation of possession of commercial quantity of contraband ganja, therefore, I am of the view that the contention raised by the learned counsel for the appellants that the order of conviction is vitiated for non-framing of the specific charge under section 20(b)(ii)(C) N.D.P.S. Act is not acceptable.
8. Even though independent witnesses like P.W.1, P.W.2 and P.W.4 have not supported the prosecution case which is a usual feature in a case of this nature but the same cannot be a ground to discard the entire prosecution case if on the basis of the evidence of the official witnesses, this Court comes to a finding that the accusation which has been leveled against the appellants has been proved beyond all reasonable doubt.
Now, it is to be seen as to how far the evidence of the official witnesses are reliable and acceptable and whether the evidence relating to the search and seizure as well as keeping of the samples of contraband ganja in safe custody before its arrival with the S.F.S.L. authorities and absence of any chance of tampering with the same has been proved by the prosecution. 19
Law is well settled that it is the duty of the prosecution to see that the contraband articles which reached the chemical examiner were the very articles which were seized at the spot from the possession of the accused persons. The entire path right from the point of seizure till its arrival with the chemical examiner has to be travelled by adducing cogent, reliable and trustworthy evidence and if any suspicion arises that there is chance of tampering with the contraband articles then benefit of doubt should be extended in favour of the accused persons.
The informant (P.W.8) has stated that when he detected the Tata Sumo vehicle bearing registration no.CG 04 H 1204 was coming from the side of Dandapadar village towards Baliguda side, he detained the vehicle and found the appellants present therein. He also found air bags inside the vehicle and smell of ganja was emitting from the bags. The informant has stated that he sent intimation to the Executive Magistrate and also sent the report to his superior i.e. S.P., Phulbani relating to detection of ganja from the appellants and he proved such report as Ext.38. He has further stated that in the presence of the Executive Magistrate (P.W.9), the ganja was weighed with the help of the weighman (P.W.4) and sample packets were drawn 20 and seizure lists were prepared. Therefore, as per the evidence of the informant, Ext.38 was prepared at a stage when neither the weighments of contraband ganja were taken nor any sample was drawn or any seizure lists was prepared.
Most peculiarly on a perusal of Ext.38, it indicates not only about the weighment of the contraband ganja, drawing of the samples but also dispatch of the sample to the Court for chemical analysis. Therefore, it is obvious that the oral evidence adduced by the informant relating to the stage of preparation of Ext.38 runs contrary to the contents/averments made in Ext.38.
The informant (P.W.8) stated that he released the personal brass seal in the zima of Banamali Behera (P.W.1) under zimanama Ext.3/2. P.W.1 Banamali Behera has categorically stated that the police has not given him any brass seal in the zima. The purpose of handing over the brass seal to an independent person is that when the bulk packets/sample packets in sealed condition are produced before the Court, the person who had taken the zima of the brass seal should also produce the same before the concerned Court for verification by the Court as to whether the seal impressions which have been fixed on the packets tally with the brass seal which was handed over to the independent and reliable person or not. If the brass 21 seal is not produced before the Court for verification and it remains with the person who has effected search and seizure then there is possibility of tampering with the seized articles. Similarly if the brass seal is not produced before the Court then handing it over to the independent and reliable person is meaningless and it will serve no purpose at all. In the present case, the order sheet of the Court does not indicate that when the sample packets and the seized ganja were produced, the brass seal was also produced and it was verified by the Court.
The search and seizure according to the prosecution was made on 07.09.2008. It is the prosecution case that it was kept in police malkhana on that day i.e. on 07.09.2008. The appellants were forwarded to the Court on 08.09.2008 and the learned S.D.J.M., Baliguda directed the accused persons to be produced before the learned Special Judge -cum- Sessions Judge, Phulbani and sent the case records to the said Court. The order sheet dated 08.09.2008 of the learned S.D.J.M., Balliguda is silent regarding production of the seized ganja as well as sample packets in Court on that day. There was no earthly reason not to produce the seized ganja as well as sample packets on 08.09.2008 when the appellants were produced before the Court. It is not only the duty of the investigating 22 agency to keep the seized contraband articles and sample packets in safe custody before its arrival in Court but also to see that it is produced in the Court at an earliest.
The order sheet dated 09.09.2008 indicates that the case record was placed before the learned Special Judge and the Officer in charge of Baliguda police station submitted F.I.R., seizure list and 161 Cr.P.C. statement and prayed for remand of the appellants to jail custody and also to send the sample exhibits to S.F.S.L., Rasulgarh for chemical examination and to keep the material objects in the Court Malkhana. The learned Special Judge passed the order that the Malkhana clerk shall receive the seized property i.e. ten sealed bags of ganja and one sample part from each bag in the Malkhana and it was further directed that the other sample part from each bag is to be sent to S.F.S.L., Rasulgarh for chemical examination. Since the Special Judge had no time on that day, he directed the records to be put up before the learned S.D.J.M., Phulbani for sending the sample packets to S.F.S.L., Rasulgarh and the appellants were remanded to jail custody. On the very day i.e. 09.09.2008 the sample packets were produced before the learned S.D.J.M., Phulbani and the order sheet indicates that ten sample packets were sealed in one packet in the presence of the Magistrate and 23 were handed over to the investigating officer for sending the same to S.F.S.L., Rasulgarh for chemical examination. The forwarding report of the samples packets vide Ext.40 indicates that the extract of the sample exhibits were drawn in polythene pouches separately, kept in paper envelops and sealed and were sent through special messenger for examination and the specimen sample seal impression with which the exhibits were sealed was sent also therewith for comparison. The learned S.D.J.M., Phulbani has put his signature and date to be 09.09.2008. Therefore, on the one hand when the forwarding report (Ext.40) indicates that the sample exhibits were sent to the chemical examiner through special messenger, the order sheet dated 09.09.2008 of the learned S.D.J.M., Phulbani indicates that the sample packets were handed over to the investigating officer for sending the same to S.F.S.L., Rasulgarh. The investigating officer (P.W.7) has stated that on 09.09.2008 she produced the seized articles along with sample packets before the Court and made a prayer for forwarding the samples to S.F.S.L., Bhubaneswar for chemical examination and the seized packets were kept in Malkhana of the Court and the sample packets were kept in safe custody in police station Malkhana as there was law and order situation in the district and 24 on 12.09.2008 after normalcy returned and transportation was restored, the sample packets were sent to S.F.S.L., Rasulgarh, Bhubaneswar through police constable no.245 Manoj Kumar Nayak.
Therefore, the narration which has been made in the forwarding report vide Ext.40 regarding sending the sample packets through special messenger runs contrary to the order sheet of the Court dated 09.09.2008 as well the evidence of the investigating officer (P.W.7). Even though P.W.7 has stated that the sample packets were sent to S.F.S.L., Rasulgarh, Bhubaneswar on 12.09.2008 but the chemical examination report which has been marked as Ext.67 indicates that the parcel was received in the office on 15.09.2008 i.e. about three days after it was dispatched through constable Manoj Kumar Nayak. The said Manoj Kumar Nayak has not been examined in this case. The Malkhana register which has been exhibited in the case as Ext.54 does not indicate that after the Court handed over the sample packets in sealed cover, it was kept in the malkhana till 12.09.2008 as stated by the Investigating Officer. The Malkhana register entry only indicates about the arrival of the sample packets and seized ganja on 07.09.2008. Therefore, the prosecution case that the sample packets and the seized ganja 25 were kept in safe custody in police malkhana is doubtful. When the material witness like constable Manoj Kumar Nayak has not been examined and the Malkhana register does not indicate any entry of the sample packets on 09.09.2008 and the prosecution has not adduced any reliable evidence as to why there was three days more delay after the samples were handed over to the police constable Manoj Kumar Nayak to be produced before S.F.S.L., Rasulgarh, Bhubaneswar, the entire thing is shrouded in mystery.
The forwarding report (Ext.40) of the sample packets for chemical analysis indicates that the sample exhibits were drawn in polythene pouches separately and then it was kept in paper envelopes and sealed. The order sheet of the learned S.D.J.M., Balliguda dated 09.09.2008 indicates that the 10 sample packets were kept in one packet and it was sealed and handed over to the investigating officer whereas the chemical examiner's report indicates that the parcel consisted of a cardboard box which was enclosed within cloth cover and sealed with the impression of the seal corresponding to the seal impression forwarded and the ganja were kept in cellophane packet. Therefore, the paper envelopes in which the polythene pouches were kept as per the forwarding report were not there 26 as per the chemical examiner's report which creates doubt as to whether the packet which was sent from the Court by the Magistrate reached in safe condition before the chemical examiner. Not only the inordinate delay in dispatch of the samples to the chemical examiner is suspicious but also the other surrounding circumstances create reasonable doubt that there was every possibility of tampering with the sample packets before its arrival at the S.F.S.L., Rasulgarh, Bhubanswar.
P.W.8 though stated that he sent his report of detection of ganja from the accused persons to the Superintendent of Police, Phulbani vide Ext.38 on 09.09.2008 but on a plain reading of the said exhibit, it appears to be a detailed report regarding the detection of ganja on 07.09.2008 and action taken thereof till that date which is probably prepared in compliance of the provision under section 57 of the N.D.P.S. Act. In the said letter of the IIC, Balliguda police station, it is mentioned in the concluding paragraph that "ten sample packets of ganja has also been sent to S.F.S.L., Rasulgarh, Bhubaneswar through Special Judge, Phulbani for examination and opinion". If according to the prospection case, ten sample packets of ganja were sent to S.F.S.L., Rasulgarh, Bhubaneswar only on 12.09.2008, therefore, mentioning of such fact in Ext.38 which is 27 dated 09.09.2008 clearly indicates that Ext.38 was not prepared on the date on which it is shown to have been prepared or in other words, it is an ante-dated document. It seems to have been prepared either on 12.09.2008 or thereafter and the date which has been mentioned under the signature of I.I.C. of Baliguda police station is not the correct date when the signature was put.
Section 57 of the N.D.P.S. Act states that whenever any person makes any arrest or seizure under the Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
In this case according to the prosecution, the search and seizure was effected in a public place that to on 07.09.2008. Therefore, in compliance of section 57 of the N.D.P.S. Act, the report should have been dispatched by the informant who was the I.I.C. of Baliguda police station by 09.09.2008 but as I have already held that the detailed report (Ext.38) was not sent to the S.P., Kandhamal on 09.09.2008 but it was sent either on 12.09.2008 or subsequent to that and it has been ante-dated just to keep it at par with the provision under section 57 of the N.D.P.S. Act, I am of the view that the document has been 28 fabricated to show the compliance of relevant provision of the N.D.P.S. Act which makes the conduct of the Inspector in Charge, Balliguda police station more suspicious.
Learned counsel for the State placed reliance on the decision of Sajan Abraham -Vrs.- State of Kerala reported in A.I.R. 2001 Supreme Court 3190, wherein his lordship while discussing the provision under section 57 of the N.D.P.S. Act has held as follows:-
"12. The last submission for the appellant is, there is non-compliance of section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that P.W.5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ex. P9 shows that the copies of the FIR along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by P.W.5 to his superior officer immediately 29 after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case. In the present case, we find P.W.5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of section 57 of the Act."
In case of Sukhdev Singh -Vrs.- State of Haryana reported in A.I.R. 2013 Supreme Court 953, it is held as follows:-
"23. Once the contraband is recovered, then there are other provisions like section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of section 42 of NDPS Act 30 mandatory and not optional as stated by this Court in the case of Karnail Singh (supra)."
In case of Gurbax Singh -Vrs.- State of Haryana reported in 2001 Supreme Court Cases (Criminal) 426, it is held as follows:-
"9......Further, it is apparent that the I.O. has not followed the procedure prescribed under section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of P.W.2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk."
In case of Bahadur Singh -Vrs.- State of Haryana reported in (2010) 4 Supreme Court Cases 445, it has been held as follows:-
31
"20. As far as compliance with the provisions of section 57 of the NDPS Act is concerned, as has been indicated earlier, it has been held by this Court that the same was not mandatory, and, in any event, information of the arrest of the petitioner and seizure of the contraband had been duly reported to the local police station on the basis of which the first information report had been drawn up."
In case of Kishan Chand -Vrs.- State of Haryana reported in (2013) 2 Supreme Court Cases 502, it has been held as follows:-
"24. Reliance placed by the learned counsel appearing for the State on Sajan Abraham is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in Karnail Singh. Secondly, in that case the Court was also dealing with the application of the provisions of section 57 of the Act which are worded differently and have different requirements, as opposed to sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to "pre-search". The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position 32 that there is total non-compliance of section 42 of the Act. The sending of report as required under section 57 of the Act on 20.07.2000 will be no compliance, factually and/or in the eyes of law to the provisions of section 42 of the Act.
These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of sections 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases."
Therefore, even though section 57 of the N.D.P.S. Act is not mandatory in nature but the investigating officer cannot totally ignore such a provision which is directory in nature as the same has got a salutary purpose. When an official witness like I.I.C., Balliguda police station is trying to create a document by making it ante-dated just to show the compliance of section 57 of N.D.P.S. Act and there are large scale loopholes and potholes in the prosecution story then obviously the conduct of the investigating agency cannot be said to be fair and aboveboard. The investigation has to be fair, judicious, transparent and expeditious to ensure with basic compliance of 33 law i.e. to find out as to where the truth lies. The investigation has to be conducted in such a manner which would reflect that every possible measure has been taken to find out the whole truth and to decipher the truth from the web of falsehoods. When the independent witnesses have not supported the prosecution case and when the official witnesses are found not to be reliable and trustworthy and the search and seizure of contraband ganja and keeping the seized articles in safe custody is not free from suspicion and the delayed dispatch of the samples to the chemical examiner has not been satisfactorily explained and the chance of tampering with the contraband articles cannot be ruled out, I am of the humble view that it is a fit case where the benefit of doubt should be extended in favour of the appellants.
9. Accordingly, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed thereunder is set aside.
It is stated at the Bar that the appellants Smt. Pyari Bag in CRLA No.566 of 2010 and Smt. Putana Kumbhar in CRLA No.607 of 2010 are on bail. They are discharged from liability of their bail bond. Their personal and surety bonds stand cancelled. 34
The appellant E. Srinibas in CRLA No.591 of 2010 and Kamalesh Mandal in JCRLA No.11 of 2012 who are in judicial custody shall be set at liberty forthwith, if their detention is not otherwise required in any other case.
Accordingly, all the criminal appeals are allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 2nd November, 2017/Pravakar/Sisir/Sukanta