Ghadua Muduli & Anr vs State Of Orissa on 25 May, 2018

[Cites 16, Cited by 0]

Orissa High Court

Ghadua Muduli & Anr vs State Of Orissa on 25 May, 2018

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLA No. 204 of 2011

From the judgment and order dated 15.03.2011 passed by the
Addl. Sessions Judge -cum- Special Judge, Jeypore in Criminal
Trial No. 38 of 2010.
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Ghadua Muduli & Anr. ......... Appellants

-Versus-

State of Orissa ......... Respondent

For Appellants: - Mr. Smruti Ranjan Mohapatra

For State: - 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: 25.05.2018
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S. K. SAHOO, J. The appellants Ghadua Muduli and Tularam Bhoi @

Tulu faced trial in the Court of learned Addl. Sessions Judge

-cum- Special Judge, Jeypore in Criminal Trial No. 38 of 2010 for

offence punishable under section 20(b)(ii)(C) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereafter

'N.D.P.S. Act') on the accusation that on 04.02.2009 at about

5.00 a.m. on N.H. 43 near village Tangini, they were found
2

transporting commercial quantity of 270 kilograms of contraband

ganja in a Bolero vehicle bearing registration No.OR-02-AS-0344

without any license in contravention of provision of the N.D.P.S.

Act.

The learned trial Court vide impugned judgment and

order dated 15.03.2011 found the appellants guilty of the

offence charged and sentenced each of them to undergo rigorous

imprisonment for twelve years and to pay a fine of Rs.1,00,000/-

(rupees one lakh), in default, to suffer further rigorous

imprisonment for two years.

2. The prosecution case, as per the first information

report (Ext.10) lodged by Hemanta Kumar Panda (P.W.4),

Inspector in charge of Pottangi police station on 04.02.2009 is

that on that day in the night at about 2.30 a.m., he received

reliable information that contraband ganja was being transported

in a Bolero vehicle bearing registration no.OR-02-AS-0344 from

Koraput side towards Salur. He made P.S. station diary entry

no.68 dated 04.02.2009 and since he had reason to believe that

delay would be caused in obtaining the search warrant which

would facilitate the accused persons to escape with contraband

ganja, he thought it prudent to conduct raid without obtaining

search warrant. P.W.4 accordingly recorded the grounds of belief
3

in the station diary and sent a report to the Superintendent of

Police, Koraput who was his immediate superior officer after

making P.S. D.R. No. 173 dated 04.02.2009. Constable C/295

R.N. Biswal was asked to hand over the report to Superintendent

of Police, Koraput. Then P.W.4 along with other staff proceeded

towards Sunki in police jeep for detection of the case.

It is the further prosecution case as per the first

information report that on 04.02.2009 at about 5.00 a.m., P.W.4

found one Bolero vehicle bearing registration no.OR-02-AS-0344

was coming from Koraput side. He stopped the vehicle with the

assistance of his staff on N.H.43 near village Tangiri. Two

occupants were found in the vehicle and smell of ganja was

coming from the vehicle. P.W.4 called one independent witness

Bhuban Prasad Roula (P.W.2) of village Pottangi and suspecting

that contraband ganja was being transported, he asked the

driver of the vehicle about his identity who disclosed his name as

Tularam Bhoi @ Tulu (appellant no.2) and the other occupant

gave his identity as Ghadua Muduli (appellant no.1). When

P.W.4 expressed his intention to search the vehicle and gave his

option to both the appellants as to whether they were willing to

be searched before any Executive Magistrate or any Gazetted

Officer, they submitted their wilingness to be searched in the
4

presence of Executive Magistrate. P.W.4 sent requisition to the

District Magistrate, Koraput for deputing one Executive

Magistrate to the spot and guarded the vehicle till the arrival of

the Executive Magistrate. P.W.5 Sunil Kumar Nayak who was the

Executive Magistrate -cum- B.D.O., Pottangi arrived at the spot

on 04.02.2009 at 3.00 p.m. and in his presence, the personal

searches of P.W.4 as well as other witnesses were taken and

nothing objectionable articles were found. Then the Bolero

vehicle was searched and 28 nos. of gunny bags containing

ganja were found inside the vehicle. P.W.4 called the weighman

namely Bipra Charan Badtia (P.W.1) who came to the spot with

weighing instruments to weigh the ganja. After P.W.1 took the

weight, P.W.4 prepared a weighment chart and sample packets

of 24 grams in duplicate from each of the ganja packets. Paper

slips containing signatures of the appellants, witnesses, P.W.5,

weighman were prepared and personal seal impression of P.W.4

was given on the same. A paper slip was also kept inside the

polythene packet which contained sample ganja. Thereafter it

was kept in a paper envelope and sealed with the personal seal

of P.W.4. A paper slip was also kept in the bulk ganja packets

which were also sealed properly with the personal brass seal

impression of P.W.4. P.W.4 prepared the seizure list of the bulk
5

exhibits and also the sample packets. He also seized the

offending vehicle which was used for transportation of ganja.

The appellants and the witnesses put their signatures in the

seizure list. The personal brass seal impression of P.W.4 was

given on the seizure list. Copy of the seizure list was handed

over to each of the appellants and personal seal of P.W.4 was

given in the zima of P.W.5, the Executive Magistrate.

As prima facie case under section 20(b) of the

N.D.P.S. Act was made out against the appellants, they were

arrested by P.W.4 after explaining the grounds of arrest and

intimation was given to their family members.

After detection of the case, P.W.4 drew up a plain

paper F.I.R. at the spot and returned to the police station with

the appellants along with the seized materials and registered

Pottangi P.S. Case No. 05 dated 04.02.2009 under section 20(b)

of the N.D.P.S. Act. He continued with the investigation of the

case and kept the 28 nos. of seized gunny bags of ganja in the

Malkhana of the police station along with 56 nos. of sample

packets. The weighing instruments which were seized from the

weighman were given in his zima. P.W.4 sent a full report of

arrest and seizure under section 57 of the N.D.P.S. Act to the

Supdt. of Police, Koraput on 05.2.2009 and on the very day, he
6

forwarded the appellants to the Court of learned Sessions Judge

-cum- Special Judge, Koraput-Jeypore and also prayed for a

direction to the clerk in-charge of Malkhana to receive the seized

ganja packets and 28 nos. of sample packets and also made a

prayer to the Court to send the rest 28 nos. of sample packets to

R.F.S.L., Berhampur for chemical analysis.

The learned Sessions Judge -cum- Special Judge,

Koraput directed P.W.4 to send the sample packets for chemical

examination through S.D.J.M., Koraput. As per the orders of the

Court, the sample packets were dispatched by the S.D.J.M.,

Koraput to R.F.S.L., Berhampur on 06.02.2009. On 07.02.2009

the bulk quantity of ganja packets were handed over the clerk

in-charge of Malkhana, Jeypore. P.W.4 seized the station diary

police station which were left in the zima of the S.I. Dayanidhi

Nayak as per zimanama Ext.15. The Bolero vehicle was released

in favour of the owner Dillip Ku. Sahu (P.W.3) as per the order

of the Court. P.W.4 received the chemical examination report

(Ext.16) which indicated that the exhibits marked as A-1 to Z-1,

AA-1 and AB-1 contained flowering and fruiting tops of cannabis

plant, commonly known as ganja. As per the orders of the

Supdt. of Police, Koraput, P.W.4 handed over the charge of
7

investigation to Shri A.K. Patnaik, S.D.P.O., Sunabeda on

28.01.2010 who submitted charge sheet under section 20(b) of

N.D.P.S. Act on 30.01.2010.

3. On receipt of charge sheet, the learned Sessions

Judge -cum- Special Judge, Koraput-Jeypore took cognizance of

offence under section 20(b)(ii)(C) of the N.D.P.S. Act on

02.02.2010. Charge was framed on 04.08.2010 and the

appellants pleaded not guilty and claimed to be tried.

4. The defence plea of the appellants was one of denial.

5. In order to prove its case, the prosecution examined

five witnesses.

P.W.1 Bipra Charan Badtia was the weighman who

came to the spot with the weighing instruments being called by

the police and weighed the ganja found in 28 gunny bags and

the total weight came to 270 kgs. He also prepared two sample

packets of ganja of 24 grams each from each of the gunny bags.

He is a witness to the seizure list Ext.1. He further stated about

the seizure of the weighing instruments as per seizure list Ext.2

and taking zima of the same as per zimanama Ext.3. He proved

the sample packets of ganja as well as twenty eight packets of

bulk ganja seized by police.
8

P.W.2 Bhubana Prasad Roulo is an independent

witness who stated about the appellants carrying contraband

ganja in the Bolero vehicle which was detained by P.W.4. He

further stated about the search of the vehicle and seizure of the

ganja packets located inside the vehicle in presence of the

Executive Magistrate. He is a witness to the seizure list Ext.1 and

also weighment chart Ext.4.

P.W.3 Dillip Kumar Sahu was the owner of the

offending Bolero vehicle and he stated that the appellant no.2

Tularam Bhoi @ Tulu was the driver of the vehicle and on

03.02.2009 he had taken the vehicle from him telling that he

would carry a family from Sunabeda to Bhubaneswar and

subsequently he came to know about the detention of the vehicle

for illegal transportation of ganja.

P.W.4 Hemanta Kumar Panda was the Inspector in

charge, Pottangi police station who conducted the search and

seizure of contraband ganja from the Bolero vehicle and he also

investigated the case from the date of detection till 28.01.2010

when the investigation was handed over to one A.K. Patnaik,

S.D.P.O., Sunabeda who on completion of investigation

submitted charge sheet.
9

P.W.5 Sunil Kumar Naik was the B.D.O. -cum-

Executive Magistrate, Pottangi who came to the spot as per the

direction of the District Magistrate, Koraput and was present

when the search of Bolero vehicle was taken and 28 bags of

ganja were recovered from the vehicle which on weighment

found to be 270 kgs. He also stated about the preparation of the

sample packets and further stated that he kept the brass seal

with him which was handed over to him by P.W.4.

The prosecution exhibited sixteen documents. Exts.1,

2 and 14 are the seizure lists, Exts.3, 5, 9 and 15 are the

zimanamas, Ext.4 is the weighment chart, Ext.6 is the D.R. No.

173 dated 04.02.2009 of IIC, Pottangi P.S., Ext.7 is the option of

appellant no.1 Ghadua Muduli, Ext.8 is the option of appellant

no.2 Tularam Bhoi, Ext.10 is the F.I.R., Ext.11 is the formal

F.I.R., Ext.12 is the carbon copy of detail report sent to S.P.,

Koraput, Ext.13 is the carbon copy of letter of S.D.J.M., Koraput

to R.F.S.L., Berhampur and Ext.16 is the chemical examination

report.

The prosecution also proved forty seven material

objects. M.O.I to XXVIII are the sample packets of ganja,

M.O.XXIX to LVI are the packets of ganja, M.O.LVII is the brass

seal.
10

No witness was examined on behalf of the defence.

6. The learned trial Court after analysing the evidence

on record came to hold that stopping of the vehicle in question at

the relevant point of time by the Pottangi police officials is well

proved by the prosecution. Taking into account the evidence of

independent witness (P.W.2), the Executive Magistrate (P.W.5)

and the investigating officer (P.W.4), the learned trial Court

came to hold that that the prosecution has well proved that huge

quantity of ganja was being transported in the Bolero vehicle and

there is no reason as to why the Executive Magistrate (P.W.5)

would speak falsehood. It was further held that on a conspectus

viewing of the evidence of P.Ws.2, 3, 4 and 5, it is a crystal clear

that the appellant Tularam Bhoi was the driver of the vehicle and

the appellant Ghadua Muduli was the lone occupant of the

vehicle and commercial quantity of ganja was being transported

by the two appellants in the vehicle without any authority. It was

further held that the report of the chemical examiner marked as

Ext.16 clearly revealed that it was nothing but flowering and

fruiting tops of cannabis plant commonly known as ganja.

Learned trial Court also came to hold that the prosecution has

well proved that the appellants were possessing and transporting

commercial quantity of ganja in a Bolero vehicle without any
11

authority or license which proved the offence under section

20(b)(ii)(C) of the N.D.P.S. Act against the appellants.

7. Mr. Smruti Ranjan Mohapatra, learned counsel

appearing for the appellants strenuously contended that

mandatory provision under section 42 of the N.D.P.S. Act has

not been complied with which has vitiated the search and

seizure. He asserted that even though it is the prosecution case

that on receiving reliable information relating to transportation of

ganja, station diary entry was made by P.W.4 but neither the

station diary entry nor the copy of the same was produced in

Court during trial and marked as exhibit. It is further contended

that there is every doubt of sending the grounds of belief to the

Superintendent of Police, Koraput and the material witnesses in

that respect have neither been examined nor material

documents relating to the receipt of such a vital report at the

S.P.'s office have been proved during trial and therefore, it is

argued that everything has been subsequently stage managed to

show the compliance of section 42 of the N.D.P.S. Act. Learned

counsel for the appellants further contended that no witness of

the locality from where the vehicle was detained and searched

was examined and P.W.4 has not complied with the provisions

laid down under section 100(4) of the Criminal Procedure Code
12

as he had not called two or more independent and respectable

inhabitants of the locality to remain present when the offending

vehicle was searched and it appears that the seizure witness

P.W.2 is a stock witness of the prosecution. Learned counsel for

the appellants further contended that P.W.4 who was the

Inspector in-charge of Pottangi police station has not only

conducted the search and seizure but he is also the investigating

officer and he being an interested witness should not have

conducted the investigation which has resulted in causing serious

prejudice to the appellants. Learned counsel for the petitioner

further contended that P.W.4 was the Malkhana in-charge and

though it is stated that the contraband articles and the sample

packets after its seizure were kept in malkhana before its

production in Court but neither the Malkhana register nor its

copy were proved during trial. Learned counsel for the appellants

further contended that the original report of arrest and seizure in

compliance of the provision under section 57 of the N.D.P.S. Act

has also not been proved and what was produced before the

Court during trial was the carbon copy of such report. The

learned counsel further submitted that though P.W.4 has stated

that the brass seal was handed over to P.W.5 but the evidence of

P.W.5 goes to show that the brass seal was with P.W.4 till it was
13

produced in Court during trial. It is argued that since punishment

prescribed under the N.D.P.S. Act are very stringent in nature, it

was required on the part of the prosecution to prove that all the

mandatory provisions are being duly complied with and the

contraband articles and the sample packets were kept in safe

custody till it is produced in Court and dispatched for chemical

examination and in the case in hand, the prosecution has failed

to bring clinching materials on record on those aspects and

therefore, it is a fit case where benefit of doubt should be

extended in favour of the appellants. The learned counsel for the

appellants placed reliance in the cases of State of Rajasthan

-Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa

Criminal Reports (SC) 827, State of West Bengal -Vrs.-

Babu Chakraborty reported in (2004) 29 Orissa Criminal

Reports (SC) 378 and Bhima Gouda -Vrs.- State of Orissa

reported in (1997) 12 Orissa Criminal Reports 203 relating

to the effect of non-compliance of the provisions under sections

42(1) and 42(2) of the N.D.P.S. Act.

Mr. Prem Kumar Patnaik, learned Addl. Govt.

Advocate on the other hand supported the impugned judgment

and contended that since the vehicle was detained and search

and seizure was made in a public place, therefore, section 43 of
14

the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is

applicable in the case. He further contended the appellants were

found in the offending vehicle when it was detained and the

appellant no.2 was driving the vehicle and commercial quantity

of ganja was found in it. He further submitted that in the

presence of the Executive Magistrate (P.W.5), search of the

vehicle was taken and ganja packets were recovered and the

weighman (P.W.1) weighed the ganja and prepared sample

packets which were sealed at the spot with paper slips and the

bulk quantity of ganja packets and sample packets in sealed

condition were kept in the police station malkhana and therefore,

it cannot be said that there was any scope for tampering with

the articles seized. He further submitted that even though the

station diary entry book, diary book and Malkhana register were

not produced in the trial Court but the seizure list indicates about

the seizure of those documents and the oral evidence relating to

keeping of the articles in malkhana has remained unshaken and

therefore, the learned trial Court was justified in convicting the

appellants under section 20(b)(ii)(C) of the N.D.P.S. Act.

8. Adverting to the contentions regarding compliance of

the provision under section 42 of the N.D.P.S. Act, in case of

State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported
15

in (2016) 64 Orissa Criminal Reports (SC) 827 while

discussing regarding the compliance of section 42 of the N.D.P.S.

Act in case of a vehicle which was seized at the public place

carrying contraband articles, it was held that since the jeep

cannot be said to be a public conveyance within the meaning of

Explanation to section 43 of the N.D.P.S. Act, hence, section 43

was clearly not attracted and provisions of section 42(1) proviso

were required to be complied with and it was further held that

the aforesaid statutory mandatory provisions having not

complied with, the High Court did not commit any error in setting

aside the conviction.

The present is not a case where P.W.4 suddenly

carried out search in the vehicle at a public place. P.W.4 himself

stated that he received the reliable information regarding

transportation of ganja in a Bolero vehicle and he has come up

with a case of compliance of section 42 of the N.D.P.S. Act.

There is no material that the offending vehicle comes within

public conveyance and when search was conducted after

recording information under section 42(1), therefore, even

though the detention was made during night and seizure was

made in a public place during day time, compliance of the

provisions of section 42 of the N.D.P.S. Act is mandatory.
16

The Hon'ble Supreme Court while discussing the

provision under section 42 of the N.D.P.S. Act in case of State

of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa

Criminal Reports (SC) 283 has been pleased to hold that the

object of N.D.P.S. Act is to make stringent provisions for control

and regulation of operations relating to those drugs and

substances. At the same time, to avoid harm to the innocent

persons and to avoid abuse of the provisions by the officers,

certain safeguards are provided which in the context have to be

observed strictly. Therefore, these provisions make it obligatory

that such of those officers mentioned therein, on receiving

information, should reduce the same to writing and also record

reasons for the benefit while carrying out arrest or search as

provided under the proviso to section 42(1). To that extent they

are mandatory. Consequently the failure to comply with these

requirements thus affects the prosecution case and therefore,

vitiates of the trial. The decision rendered in the case of Baldev

Singh (supra) was further considered by a five-Judge Bench in

the case of Karnail Singh -Vrs.- State of Haryana reported

in (2009) 44 Orissa Criminal Reports (SC) 183 wherein it

was held in the concluding paragraph as follows:-

"17. In conclusion, what is to be noticed is Abdul
Rashid did not require literal compliance with the
17

requirements of Sections 42(1) and 42(2) nor
did Sajan Abraham hold that the requirements
of section 42(1) and 42(2) need not be fulfilled
at all. The effect of the two decisions was as
follows:

(a) The officer on receiving the information (of
the nature referred to in sub-section (1) of
section 42 from any person had to record it in
writing in the concerned Register and forthwith
send a copy to his immediate official superior,
before proceeding to take action in terms of
clauses (a) to (d) of section 42(1).

(b) But if the information was received when the
officer was not in the police station, but while he
was on the move either on patrol duty or
otherwise, either by mobile phone, or other
means, and the information calls for immediate
action and any delay would have resulted in the
goods or evidence being removed or destroyed,
it would not be feasible or practical to take down
in writing the information given to him, in such a
situation, he could take action as per clauses (a)
to (d) of section 42(1) and thereafter, as soon
as it is practical, record the information in
writing and forthwith inform the same to the
official superior .

regard to writing down the information received
and sending a copy thereof to the superior
officer, should normally precede the entry,
search and seizure by the officer. But in special
circumstances involving emergent situations,
the recording of the information in writing and
sending a copy thereof to the official superior
may get postponed by a reasonable period, that
is after the search, entry and seizure. The
question is one of urgency and expediency.

(d) While total non-compliance of requirements
of sub-sections (1) and (2) of section 42 is
impermissible, delayed compliance with
satisfactory explanation about the delay will be
acceptable compliance of section 42. To
illustrate, if any delay may result in the accused
escaping or the goods or evidence being
destroyed or removed, not recording in writing
the information received, before initiating action,
or non-sending a copy of such information to the
official superior forthwith, may not be treated as
violation of section 42. But if the information
was received when the police officer was in the
police station with sufficient time to take action,
and if the police officer fails to record in writing
the information received, or fails to send a copy
thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation
of section 42 of the Act. Similarly, where the
19

police officer does not record the information at
all, and does not inform the official superior at
all, then also it will be a clear violation of section
42 of the Act. Whether there is adequate or
substantial compliance with section 42 or not is
a question of fact to be decided in each case.
The above position got strengthened with the
amendment to section 42 by Act 9 of 2001."

In view of the settled position of law, now it is to be

seen whether the contentions raised by the learned counsel for

the appellants that there is non-compliance of mandatory

provision under section 42(1) and 42(2) of the N.D.P.S. Act is

sustainable or not. In the first information report (Ext.10), the

Inspector in charge, Pottangi police station (P.W.4) has

mentioned that when he received a reliable information at 2.30

a.m. regarding transportation of ganja in a Bolero vehicle

bearing registration No.OR-02-AS-0344 from Koraput side

towards Salur, he noted the fact vide P.S. S.D. vide S.D. Entry

No. 68 dated 04.02.2009 and he believed that there would be

delay caused in obtaining a search warrant which would facilitate

the accused persons to escape with the contraband ganja and he

thought it prudent to conduct raid without obtaining a search

warrant. Accordingly, he recorded his grounds of belief in the

P.S. station diary and sent a report to Superintendent of Police,
20

Koraput who was the immediate superior as per the P.S. D.R.

No.173 dated 04.02.2009. While deposing in Court, P.W.4 has

also made similar statement.

Though the station diary book and dispatch register

of Pottangi police station were seized under seizure list Ext.14 on

08.02.2009 by P.W.4 along with Malkhana register but neither

the station diary book nor the dispatch register was produced in

Court during trial. Even the authenticated copies of the station

diary and dispatch register were also not produced. Therefore,

there was no material before the trial Court that any such entry

was in fact been made. In view of the mandatory provision of

section 42 of the N.D.P.S. Act, the Court is required not only to

verify that the reliable information was taken down in writing but

also the grounds of belief was also recorded as per the second

proviso to section 42(1) of the N.D.P.S. Act and copy of the

same was sent to the immediate official superior in view of sub-

section (2) of section 42 of the N.D.P.S. Act.

P.W.4 has stated that he sent the report to

Superintendent of Police, Koraput as per Ext.6 through C/295

R.N. Biswal and in that respect P.S. D.R. No.173 dated

04.02.2009 was made. The concerned constable through whom

the report under Ext.6 is stated to have been dispatched has not
21

been examined. P.W.4 admits that there is no initial or signature

either of Superintendent of Police or any officer who is in charge

of Superintendent of Police in token of having perused Ext.6. He

has further stated that Ext.6 has not been diarized in the office

of Superintendent of Police. He has further stated that though he

had collected Ext.6 from the office of Superintendent of Police

but he has not seized the same. On perusal of Ext.6, it appears

that a seal impression of the Superintendent of Police finds place

on it and the date has been given to be 04.02.2009 but no

signature of any person from the S.P. office is there on Ext.6.

Admittedly, nobody from the S.P. office has been examined to

depose relating to the receipt of Ext.6 in their office and no

seizure list has been prepared relating to seizure of Ext.6 from

the office of Superintendent of Police, Koraput.

Therefore, when the person concerned who carried

Ext.6 to the office of Superintendent of Police, Koraput has not

been examined, none of the persons from the office of

Superintendent of Police, Koraput has been examined to say

about the receipt of Ext.6 in their office, none of the documents

from the office of Superintendent of Police, Koraput has been

produced during trial relating to receipt of Ext.6 and even the

receipt of such an important document has not been diarized and
22

the dispatch register of Pottangi police station relating to

dispatch of Ext.6 has not been proved, the contention of Mr.

Mohapatra that there is every doubt relating to the compliance of

the mandatory provision under section 42 of the N.D.P.S. Act has

got substantial force. In a case of this nature where the

prosecution is required to prove the compliance of the

mandatory provision under section 42 of the N.D.P.S. Act, all the

relevant documents which are connected with such compliance

are required to be proved before the trial Court in accordance

with law and similarly all the concerned witnesses should be

examined in Court to prove the vital aspect. In absence of proof

of the oral as well as documentary evidence relating to

compliance of such provision, the prosecution case should be

viewed with suspicion.

9. P.W.4 was the officer who conducted search and

seizure and he is also the investigating officer who investigated

the case from the date of seizure i.e. 04.02.2009 till 20.08.2010

and the subsequent officer formally submitted charge sheet one

day after. The learned counsel for the appellants placed reliance

in case of Bata Khrushna Sahu -Vrs.- State of Orissa

reported in (2010) 45 Orissa Criminal Reports 606 wherein

it has been held that P.W.8 who was the person who conducted
23

the search and allegedly recovered gunny bags M.Os. I, II and

III and therefore, the investigation of the case by P.W.8 himself

renders the charge against the petitioner vulnerable.

In case of Panchanan Das -Vrs.- State of Orissa

reported in (2016) 65 Orissa Criminal Reports 702, I have

held that in a case under the N.D.P.S. Act, where stringent

punishment has been prescribed, ordinarily if a police officer is

the informant in the case, in the fairness of things, the

investigation should be conducted by some other empowered

police officer or at least the investigation should be supervised

by some other senior police officer as the informant police officer

is likely be interested in the result of the case projected by him.

However, if the informant police officer in the exigencies of the

situation conducts investigation and submits final form, it cannot

be per se illegal. The defence has to prove in what way such

investigation is impartial, biased or has caused prejudice to the

accused.

Since the investigation of a case under N.D.P.S. Act

is required to be carried out by a person who is absolutely

impartial, unbiased and unmotivated, when P.W.4 received the

reliable information, searched the vehicle and seized the

contraband articles and lodged the first information report, in all
24

fairness of things, he should not have investigated the matter

without any exigencies of the situation.

10. Law is well settled that the provisions of sections 100

and 165 of the Code of Criminal Procedure, 1973 which are not

inconsistent with the provisions of the N.D.P.S. Act are applicable

for effecting search and seizure under the N.D.P.S. Act.

Section 165 Cr.P.C. deals with search by an officer in

charge of a police station or by a police officer making an

investigation into any offence which he is authorized to

investigate. Sub-section (4) of section 165 of the Code states

that the provisions of the Code as to search-warrants and the

general provisions as to searches contained in section 100 of

Cr.P.C. shall, so far as may be, apply to a search made under

section 165 Cr.P.C. Sub-section (4) of section 100 of Cr.P.C.

states that before making a search under Chapter-VII, the officer

or other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which

the place to be searched is situate or of any other locality if no

such inhabitant of the said locality is available or is willing to be

a witness to the search, to attend and witness the search and

the officer may issue an order in writing to such persons or any

of them to be a witness to the search.
25

Even though sub-section (4) of section 100 Cr.P.C.

states that such provision is applicable to Chapter-VIII but in

view of sub-section (4) of section 165 of Cr.P.C., the procedure

has to be followed in all cases of search by either the officer in

charge of the police station or a police officer making an

investigation into any offence which he is authorised to

investigate. If any subordinate officer is entrusted by the officer

in charge to carry out such search by an order in writing, then

such subordinate officer has also to follow the procedure laid

down under section 100 Cr.P.C. Even though section 100 Cr.P.C.

states about the search of a closed place but in view of definition

of 'place' as per section 2 (p) of Cr.P.C., it includes a house,

building, tent and vessel.

The independent witnesses who have been examined

in the case are P.W.1 and P.W.2, out of which P.W.1 was the

weighman and they belonged to Mouza Pottangi which is a

different village than the place where the seizure was effected.

P.W.2 has stated in his evidence that he had attended the

Koraput Court as a prosecution witness in various types of cases

and he also attended Pottangi police station on many occasions.

He has also written the first information reports for the

informants. Since P.W.2 is a stock witness of the prosecution,
26

therefore, this Court has to be very cautious in accepting his

evidence. A stock witness is a person who is at the back and call

of the police. He obliges police with his tailored testimony.

In case of Prem Chand (Paniwala) -Vrs.- Union

of India reported in A.I.R. 1981 S.C. 613, the Hon'ble

Supreme Court emphasized the need of the State to issue clear

orders to the Police Department to free the processes of

investigation and prosecution from the contamination of

concoction through the expediency of stockpiling of stock-

witnesses. In case of Babudas -Vrs.- State of M.P. reported

in ( 2003 ) 9 Supreme Court Cases 86, it was held as

follows:-

"4....From the evidence of PW-17, we notice that
undoubtedly, he is a stock witness who has been
appearing as a witness for recovery on behalf of
the prosecution even as far back as the year
1965, therefore, we will have to very cautious in
accepting his evidence."

None of the persons of the locality from where the

contraband articles were seized in the Bolero vehicle has been

examined. The timing of search and seizure, non-availability of

independent and respectable witnesses of the locality and non-

inclination of such persons even though available to become
27

witnesses to the search and seizure are the factors to be taken

note of while assessing the non-compliance of sections 100(4)

and 165(4) of Cr.P.C. If after making reasonable efforts, the

police officer is not able to get public witnesses to associate with

the raid or arrest of the accused, the arrest and the recovery

made would not be necessarily vitiated.

In the case in hand, though the vehicle was detained

at 5.00 a.m. on 04.02.2009 but after the arrival of the Executive

Magistrate at 3.00 p.m. on 04.02.2009, the search and seizure

was made. P.W.2 has stated that he was sleeping in his house at

3 a.m. when Pottangi Thana babu called him to accompany him

for detection of the case and accordingly, he went with him.

According to P.W.4, the spot of detection i.e. Tangini Ghati was

about 18 Kms. away from Pottangi police station and village

Tangini was about 1 Km. away from the place of detection. There

is absolutely no evidence that at the time of search and seizure,

there was non-availability of independent and respectable

witnesses of the locality or non-inclination of such persons even

though available to become witnesses to the search and seizure

rather P.W.2 has stated that besides him, two to four others

were also there. P.W.4 has stated that since he had taken one

independent witness from Pottangi along with him, he did not
28

feel the necessity of procuring another independent witness from

village Tangini or from hamlet Jodimathili which according to him

was 2 Kms. away from the spot. Therefore, learned counsel for

the appellants is right in his submission that there is violation of

provision under section 100 (4) of Cr.P.C. in carrying a stock

witness like P.W.2 from his house during the night for the search

and seizure.

11. The next contention raised by the learned counsel for

the appellants regarding the non-seizure of the original report of

arrest and seizure under section 57 of the N.D.P.S. Act.

P.W.4 has stated that on the very next day he has

reported to his superior officer under section 57 of the N.D.P.S.

Act but the report has not been seized. What was proved during

trial as Ext.12 is the carbon copy of the report which was

objected to by the defence. No witnesses from the office of the

Superintendent of Police, Koraput have also been examined to

state about receipt of such report under Ext.12 which was

dispatched by P.W.4. Therefore, when the original report has not

been produced and no competent witness from S.P. office has

been examined and no corresponding documents from the office

of Superintendent of Police, Koraput has been proved relating to

receipt of the full report under section 57 of the N.D.P.S. Act in
29

their office, it is very difficult to accept that there is substantial

compliance of such provision. In case of Gurbax Singh -Vrs.-

State of Haryana reported in A.I.R. 2001 S.C. 1002, it is

held that it is true that provisions of Sections 52 and 57 of the

N.D.P.S. Act are directory. Violation of these provisions would

not ipso facto violate the trial or conviction. However, I.O.

cannot totally ignore these provisions and such failure will have a

bearing on appreciation of evidence regarding arrest of the

accused or seizure of the article. In case of State of Punjab

-Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal

Reports (SC) 283, it is held that the provisions of sections 52

and 57 of the N.D.P.S. Act which deal with the steps to be taken

by the officers after making arrest or seizure under sections 41

to 44 are by themselves not mandatory. If there is non-

compliance or if there are lapses like delay etc. then the same

has to be examined to see whether any prejudice has been

caused to the accused and such failure will have a bearing on the

appreciation of evidence regarding arrest or seizure as well as on

merits of the case.

12. The contraband ganja as well as the sample packets

after seizure was brought to the police station and it is stated to

have been kept in the Malkhana by P.W.4 before its production in
30

Court. The evidence of P.W.4 is totally silent as to whether any

entries were made in the Malkhana register before keeping the

seized articles and sample packets in the Malkhana and also

taking the same for production in Court. The Malkhana register

was not produced during trial. The copy of the Malkhana register

showing the corresponding entries in such register relating to the

keeping of the contraband ganja as well as sample packets and

taking it out was also not proved. It was the duty of the

prosecution to adduce cogent and clinching evidence regarding

safe custody of the seized articles along with sample packets in

the malkhana of Pottangi police station. Rule 119 of the Orissa

Police Rules which deals with Malkhana register states, inter alia,

that all the articles of which police take charge, shall be entered

in detail, with a description of identifying marks on each article,

in a register to be kept in P.M. form No. 18 in duplicate, and a

receipt shall be obtained whenever any article or property of

which the police take charge is made over to the owner or sent

to the Court or disposed of in any other way and these receipt

shall be numbered serially and filed, and the number of receipts

shall be entered in column No.7. Therefore, it is clear that

whenever any article is seized and kept in police malkhana,

details thereof should be entered in the Malkhana register and
31

while taking it out, the entry should also be made in such

seized during investigation of a case before its production in

Court. When the Malkhana register of Pottangi police station has

not been proved in the case, it is difficult to believe that the

seized articles along with the sample packets were in safe

custody before its production in Court for being sent for chemical

analysis.

Though P.W.4 stated the brass seal was handed over

to P.W.5 as per zimanama Ext.9 after the search and seizure and

preparation of the seizure list was over but P.W.5 has stated in

the cross-examination that he took time twice to produce the

seal and he had returned the seal to the Inspector in-charge and

then brought it back from him. The statement of P.W.5 raises

doubt about the handing over of the brass seal by P.W.4 as per

zimanama Ext.9 rather it presupposes that a zimanama was

created without handing over the personal brass seal to P.W.5.

Law is well settled that the brass seal used in sealing

the contraband articles should be kept in the zima of a

respectable person and it is required to be produced before the

Court at the time of production of the seized articles and sample

packets for verification by the Court. The order sheet dated
32

05.02.2009 of the learned Sessions Judge -cum- Special Judge,

Koraput is totally silent regarding production of the brass seal in

question and its verification when the seized articles were

produced. Even though P.W.4 has mentioned in the F.I.R. that

his personal seal impression was given in the seizure list but on

verification of the seizure list (Ext.1), it appears that such

averment is not correct. When the sample packets as well as

bulk quantity of ganja were with P.W.4 who was also the in-

charge of Malkhana and he was also having the brass seal with

him, the possibility of tampering cannot be ruled out. Learned

counsel for the appellants placed reliance in case of Sk. Faiyaz

-Vrs.- State of Orissa reported in (2010) 46 Orissa

Criminal Reports 855 and Bata Krushna Sahu -Vrs.- State

of Orissa reported in (2010) 45 Orissa Criminal Reports

606 wherein it has been held that the prosecution is required to

prove the proper sealing of seized articles and complete

elimination of tampering with such articles during its retention by

the investigating agency. Burden of proof of entire path of

journey of the articles from the point of seizure till its arrival

before chemical examiner has to be proved by adducing cogent,

reliable and unimpeachable evidence.
33

13. In view of the forgoing discussions, I am of the

humble view that when there is non-compliance of mandatory

provision of section 42 of the N.D.P.S. Act and non-production of

the station diary entry, Malkhana register, dispatch register

during trial, when the brass seal was not produced in Court at

the time of production of the seized articles, respectable and

independent persons of the locality where search was made have

not been examined, when the compliance of section 57 of the

N.D.P.S. Act is also a doubtful feature and moreover P.W.4 being

the informant of the case has investigated the case and taken

the assistance of stock witness like P.W.2, it cannot be said that

the prosecution has successfully established the charge under

section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants

beyond all reasonable doubt.

Therefore, 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 not

sustainable in the eye of law.

Accordingly, the Criminal Appeal is allowed. The

appellants are acquitted of the charge under section 20(b)(ii)(C)

of the N.D.P.S. Act. The appellants who are in jail custody shall
34

be set at liberty forthwith if their detention is not required in any

other case.

Lower Court records with a copy of this judgment be

sent down to the learned trial Court forthwith for information.

.................................
S.K. Sahoo, J.

Orissa High Court, Cuttack The 25th May 2018/Pravakar/Kabita

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