Orissa High Court
Firoz Alli Khan Alias Bulu vs State Of Orissa on 5 March, 2018
Equivalent citations: AIRONLINE 2018 ORI 22
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 98 Of 2012
From the judgment and order dated 09.01.2012 passed by the
Sessions Judge -cum- Special Judge, Ganjam, Berhampur in G.R.
Case No.02 of 2009(N)(T.R. No.07 of 2009).
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Ramakrushna Sahu ........ Appellant
-Versus-
State of Orissa ........ Respondent
CRLA No. 123 Of 2012
Trilochan Sahu ........ Appellant
-Versus-
State of Orissa ........ Respondent
CRLA No. 198 Of 2012
Subash Mahapatra @
Subash Ch. Mahapatra ........ Appellant
-Versus-
State of Orissa ........ Respondent
CRLA No. 259 Of 2012
Firoz Alli Khan @ Bulu ........ Appellant
-Versus-
State of Orissa ........ Respondent
2
CRLA No. 330 Of 2012
Kailash Chandra Panda ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellants: - Mr. Prasanta Kumar Sahoo
(In CRLA No. 98 Of 2012)
Mr. Jugal Kishor Panda
(In CRLA No. 123 Of 2012)
Mr. Samvit Mohanty
(In CRLA No. 198 Of 2012)
Mr. Biswajit Nayak
(In CRLA No. 259 Of 2012)
Mr. D.P. Das
(In CRLA No. 330 Of 2012)
For State: - Mr. Chita Ranjan Swain
Addl. Standing Counsel
----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 08.02.2018 Date of Judgment: 05.03.2018
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S. K. SAHOO, J.The appellant Ramakrushna Sahu in Criminal Appeal No. 98 of 2012, appellant Trilochan Sahu in Criminal Appeal No. 123 of 2012, appellant Subash Mahapatra @ Subash Ch. Mahapatra in Criminal Appeal No. 198 of 2012, appellant Firoz Alli Khan @ Bulu in Criminal Appeal No. 259 of 2012 and 3 appellant Kailash Chandra Panda in Criminal Appeal No. 330 of 2012 faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur in G.R. Case No.02 of 2009(N)(T.R. No.07 of 2009) for offences punishable under sections 20(b)(ii)(C) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'the N.D.P.S. Act') and sections 482/34 of the Indian Penal Code on the accusation that on 06.09.2009 at about 4.00 p.m. at Patrapur bus stand, they were found transporting 595 kgs. 500 grams of contraband ganja in 66 polythene packets through three four wheeler vehicles in contravention of the provisions of section 8(c) of the N.D.P.S. Act and they abetted the commission of offence and were party to criminal conspiracy and used fake number plates in furtherance of their common intention.
The learned trial Court vide impugned judgment and order dated 09.01.2012 acquitted all the appellants of the charge under sections 482/34 of the Indian Penal Code and also the appellants namely, Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda of the charge under section 29 of the N.D.P.S. Act and also the appellant Firoz Alli Khan @ Bulu of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. However the appellants namely, 4 Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda were found guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and each of them was sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.2,00,000/- (rupees two lakhs only), in default, R.I. for five years each. The appellant Firoz Alli Khan @ Bulu was found guilty under section 29 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.2,00,000/- (rupees two lakhs only), in default, to undergo R.I. for five years.
Though co-accused Suchi @ Suchit Sahoo also faced trial along with the appellants under similar charges and was also found guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and accordingly sentenced by the learned trial Court and he preferred a separate appeal bearing CRLA No.124 of 2012, since the said accused absconded while on interim bail, his appeal was delinked from the present appeals as per the order dated 26.10.2016.
Since all the appeals arise out of a common judgment, with the consent of the parties, those were heard analogously and disposed of by this common judgment. 5
2. The prosecution case, as per the first information report (Ext.30) lodged by Sri Trinatha Mishra (P.W.14), Inspector in charge of Jarada Police Station, in short, is that on 06.09.2009 at about 1.00 p.m., he received reliable information to the effect that ganja was being transported in three vehicles i.e. TATA SUMO, INDICA Car and SANTRO Car from Vishakapatnam side towards Bhubaneswar. He entered the said fact in the station diary of the police station vide SDE No.120 dated 06.09.2009 and immediately informed the S.P., Berhampur and S.D.P.O., Chikiti over telephone which was reflected in SDE Nos.121 and 122 dated 06.09.2009 respectively. He also submitted report to the S.P. and S.D.P.O. vide DR Nos.1095 and 1096 respectively which was reflected in SDE No.120. P.W.14 then requested S.D.M., Berhampur over telephone to send one Executive Magistrate to remain present during search and seizure. As there was no sufficient time to obtain search warrant and there was every possibility of escape of culprits, he along with other police officials left the police station in police jeep and SDE No.123 was entered in that respect. After reaching at Samuntiapalli Chhak, P.W.14 called two witnesses namely Raj Gopal Padhi (P.W.1) and Mahendra Kumar Sethi (P.W.2) to remain with them during search and seizure and apprised them regarding the information 6 and raid. At about 3.30 p.m. while the patrolling party members were present at Samuntiapalli Chhak, they found one TATA SUMO, one INDICA Car and one SANTRO Car was coming from B. Nuagaon side in a high speed. Signal was given to stop the vehicles but the drivers of the vehicles did not oblige and drove away towards Patrapur. The patrolling party chased the cars in P.S. Jeep as well as in motor cycles and could be able to detain the vehicles at Patrapur Bus stand. First they guarded the vehicles and it was found that the TATA SUMO, INDICA Car and SANTRO car were bearing Regd. No.OR-05-J-6633, OR-02-Z- 4005 and AP-30-A-7789 respectively. While detaining the vehicles, two persons fled away from the vehicles. Meanwhile Sri Debabrata Sahoo (P.W.11), Tahasildar, Chikiti -cum- Executive Magistrate reached at Patrapur Bazar. They found two persons present inside INDICA Car, two persons inside SANTRO Car and one person inside TATA SUMO vehicle. All the three vehicles were loaded with blue & orange coloured polythene packets. After detaining the vehicles, the patrolling party members along with the Executive Magistrate, Chikiti and witnesses gave their identities and explained the accused persons regarding the purpose of detaining them i.e. search of their vehicles relating to possession/transportation of ganja. P.W.14 asked the two 7 persons present in the SANTRO Car to give their identities and they gave their identities as (1) Suchi @ Suchit Sahoo (2) Kailash Ch. Panda (appellant in CRLA No.330 of 2012). The persons present inside the INDICA Car disclosed their identities as Trilochan Sahoo (appellant in CRLA No.123 of 2012) and Subash Mohapatra (appellant in CRLA No.198 of 2012). The person present inside the TATA SUMO disclosed his identity as Balia @ Rama Krushna Sahoo (appellant in CRLA No.98 of 2012). P.W.14 asked them in writing whether they wanted to be searched in presence of Gazetted police officer or Executive Magistrate but all of them gave their written willingness/consent to be searched in presence of the Executive Magistrate. Before search, the patrolling party members, Executive Magistrate and the independent witnesses gave their personal search to them and accordingly, search lists were prepared. Then the personal search of the accused persons were taken after bringing them from the vehicles. During personal search, two NOKIA 6030 sets and one E-Touch China made Mobile phone were found with Suchi @ Suchit Ku. Sahoo and NOKIA (1650 Model) set found with Kailash Ch. Panda (appellant in CRLA No.330 of 2012) and old NOKIA mobile set with Subash Mohapatra (appellant in CRLA No.198 of 2012). When the TATA Sumo vehicle was searched, 33 8 closed polythene packets containing ganja and two registration number plates bearing registration No.OR-13-4262 were found. The INDICA car was loaded with twenty four closed polythene packets containing ganja. The SANTRO Car was found loaded with nine closed polythene packets containing ganja. Two registration number plates bearing No.OR-02-AJ-7330 were found inside the SANTRO Car. P.W.14 sent N.C. Pati, A.S.I. of police to Patrapur Bazar to bring weighing instrument to weigh the ganja. After prolonged interrogation, the above five accused persons disclosed that they along with Bulu Khan (appellant in CRLA No.259 of 2012), Kapila Sahoo, S/o-Dama Sahu of Vill- Jagannathpur, Gudum, P.S./Dist-Khurda, Satya Swain of Balimela and one Fakira of Nayagarh were dealing with ganja business since about last two years and they were bringing ganja from village Gudum near Vishakhapatnam (Andhra Pradesh) and selling the same at Khurda, Bhubaneswar, Cuttack and Puri towns under the leadership of Bulu Khan and Kapila Sahu. They further disclosed that on that day, Bulu Khan (appellant in CRLA No.259 of 2012) was piloting them in one INDICA Car bearing Regn. No. OR-02-X-7803 & transporting ganja from one place to another. Kapil Sahu was driving detained SANTRO Car and Fakir of Nayagarh was driving the detained TATA SUMO and both of 9 them fled away leaving the vehicles. Meanwhile, A.S.I. of police N.C. Pati came with one K Tripati Kumar Patro, S/o-K. Koti Patro of Main road, Patrapur who was dealing in rice business and he came with his electronic weighing machine.
P.W.14 brought out twenty four packets from the INDICA Car through the labourers and his staff and opened it in presence of the witnesses and Executive Magistrate, Chikiti and it was found that all those packets were containing ganja. He made homogeneous blending of all ganja and K. Tripati Kumar Patro weighed the ganja and the total ganja came to 186 Kg. 400 grams (One hundred eighty six Kg. and four hundred grams). He prepared two samples of 250 gms each from all the blending ganja and packed the ganja in eight bags and marked the bags as Exts. A to H. The empty polythene packets and gunny bags which were containing ganja were packed in another bag and marked as Ext.I. The two sample packets were marked as Exts.1 and 2.
P.W.14 then brought out thirty three closed polythene packets from the TATA SUMO car, opened it in presence of the witnesses and Executive Magistrate, Chikiti and found ganja inside it. He made homogeneous blending of all the ganja and it was weighed and found to be 346 kg. 800 grams 10 (three hundred forty six Kgs. and eight hundred grams). The ganja was packed in eighteen separate bags and those were marked as Exts.J to Z and A1. He prepared samples of 250 grams in two polythene packets each, sealed it and marked as Exts.3 and 4. The empty polythene and gunny bags were kept in another bag and marked as Ext.A2.
P.W.14 then brought out nine polythene packets from the SANTRO car and opened it and those packets were found to be containing ganja. After homogeneous blending, the ganja were kept in four bags and marked as Exts.A3 to A6 and the total weight became 62 kg. 300 gm. He prepared two sample packets of 250 gms. each and marked it as Exts.5 and 6. The empty polythene and gunny bags were kept in a separate bag and marked as Ext.A7.
It is further stated in the F.I.R. that all the bags containing ganja and marked as Exts.A to Z and A1 to A7 were stitched and sealed with the personal brass seal of P.W.14. The sample ganja were first packed in polythene packets and sealed. Then the sealed sample packets were kept inside cloth packets and sealed with the personal brass seal of P.W.14. All the stitching, packing and sealing were done in presence of the witnesses, Executive Magistrate and the appellants gave their 11 signatures on the exhibits. P.W.14 seized the electronic weighing machine from K. Tripati Kumar Patro in presence of Executive Magistrate and witnesses and left it in his zima after executing proper zimanama. He took the facsimile seal impression of his brass seal on a separate paper in presence of the witnesses and Executive Magistrate and kept in a paper cover and sealed it and the said sealed paper packet was marked as Ext.8. P.W.14 left his personal brass seal used in sealing the exhibits in the zima of Sri Akhila Kumar Patnaik (P.W.15) after executing proper zimanama. P.W.14 seized the exhibit bags containing ganja, sample packets, Nokia mobile phones and TATA Sumo, INDICA car and SANTRO car bearing Regn. Nos. OR-05-J-6633, OR-02- Z-4005 and AP-30-A-7789 respectively and fake number plates in presence of the witnesses, appellants and Executive Magistrate, Chikiti at 9.30 p.m. under proper seizure list. He gave the copy of seizure list to the appellants. The entire process was photographed and video graphed. As the accused persons namely Suchi @ Suchit Sahu, Trilochan Sahu, Subash Mohapatra, Rama Krushna Sahu and Kailash Ch. Panda were in exclusive and conscious possession of contraband ganja and dealing with it illegally, they were arrested by P.W.14 after observing all the formalities of arrest on 06.09.2009 at 10.30 12 p.m. after explaining them the ground of arrest. P.W.14 verified the engine number and chassis number of the seized vehicles and those were found to have been tampered with.
3. P.W.14 drew up a plain paper first information report at the spot and sent it to Jarada police station for registration. The appellants and the seized properties were brought to the police station and the seized properties were kept inside the police station malkhana after entering the same in the property register vide Mal Item No.51/2009 and in that respect station diary entry no. 132 was made.
On the basis of such first information report, Jarada P.S. Case No.100 of 2009 was registered on 06.09.2009 under sections 20(b)/29 of the N.D.P.S. Act against the five appellants and also against accused Suchi @ Suchit Sahoo and Kapila Sahoo.
P.W.14 made over the charge of investigation to Biranchi Prasad Dehury (P.W.16), S.D.P.O., Chikiti on 07.09.2009. P.W.16 examined the informant and visited the spot and he received the exhibits from the Inspector in Charge, Jarada police station. He forwarded the appellants to Court and produced the seized exhibits before the Court. He kept the seized exhibits at Baidanathpur police station malkhana on the 13 direction of the Court after sealing the same properly as it was late. P.W.16 received the seized exhibits from Baidanathpur police station on 08.09.2009 and produced it before the S.D.J.M., Berhampur and as per the direction of the S.D.J.M., the exhibits were sent to R.F.S.L., Berhampur for chemical examination and opinion. He also deposited the remaining seized ganja in the Court Malkhana. He submitted a detail report to the Superintendent of Police, Berhampur regarding search and seizure etc. On 09.09.2009 he seized one INDICA Car bearing registration no.OR-02-X-7802 as per seizure list Ext.17 at Jankia from appellant Firoz Alli Khan @ Bulu (appellant in CRLA No.259 of 2012) for his involvement in the case. He examined the seizure witnesses, arrested appellant Bulu @ Firoz Alli Khan as he was allegedly piloting the other three vehicles in the transportation of ganja. He requested the Superintendent of Police at Berhampur for call details of the seized mobile phones on 23.09.2009. He also seized the malkhana register of Jarada police station under seizure list Ext.18 and the malkhana register was given in the zima of B.D. Parida, S.I. of police as per zimanama (Ext.32). The Tahasildar, Patrapur was issued with requisition for demarcation of the spot. On 16.10.2009 he seized 14 the detailed report submitted to the office of S.P., Berhampur as per seizure list Ext.33 On 20.11.2008 P.W.16 seized the photograph and CD from one Raj Gopal Padhy and prepared the seizure list vide Ext.6/1. On the same day, he received the call details of the seized phones from the office of Superintendent of Police, Berhampur. On 05.12.2009 he received the spot demarcation report from the Tahasildar, Patrapur. On 28.12.2009 he seized the malkhana register of Baidyanathpur police station relating to the month of September 2009 vide page No.428 to SLNo.16/2009 and prepared the seizure list vide Ext.34. He left the seized malkhana register in the zima of S.I. of Police Lalit Mohan Meher under proper zimanama vide Ext.35. On the same day he received the chemical examination report from the R.F.S.L., Berhampur marked as Ext.36 which indicated that the exhibits marked as no.1, 3 and 5 contained flowering and fruiting tops of cannabis plant commonly known as ganja. On 02.01.2010 P.W.16 submitted charge sheet under sections 20(b)/29 of the N.D.P.S. Act and sections 482/34 of the Indian Penal Code keeping the investigation open for further verification of the seized vehicles by Scientific Officer and arrest of the other 15 accused persons. On 27.04.2010 he submitted the supplementary charge sheet.
4. The defence plea of the appellants is one of denial and it is further pleaded that nothing was seized from their possession and they have been falsely entangled in the case.
5. During course of trial, in order to prove its case, the prosecution examined sixteen witnesses.
P.W.1 Raj Gopal Padhi, P.W.2 Mahendra Kumar Sethi, P.W.3 Simanchala Pati, P.W.4 Sankara Mohanty and P.W.5 Narayan Swami did not support the prosecution case for which they were declared hostile.
P.W.6 Narayan Chandra Pati who was the A.S.I. of police attached to Jarada police station was one of the members of the patrolling party and he stated about the detention of the vehicles, presence of the accused persons in those vehicles and seizure of contraband ganja from the vehicles.
P.W.7 Baba Khan and P.W. 8 B. Ujala Patra did not support the prosecution case.
P.W.9 Satyanarayan Mohanty and P.W.10 M. Ramesh Rao were the home guards attached to Jarada police station and they were the members of patrolling party who stated about the 16 arrest of the accused persons and recovery of contraband ganja from the three vehicles.
P.W.11 Debabrata Sahu was the Tahasildar, Chikiti who remained present at the time of search of the vehicles and seizure of contraband ganja by the police.
P.W.12 Rajendra Prasad Ratha was the constable attached to Jarada police station and he stated about the seizure of malkhana register of Jarada police station, extract of station diary entry and command certificate by the investigating officer under seizure list Ext.18.
P.W.13 Radhamadhaba Padhy was the A.S.I. of police attached to the office of the Superintendent of Police, Berhampur and he stated about the release of two letters in his zima under zimanama Ext.19.
P.W.14 Trinath Mishra was the IIC of Jarada police station and he is the informant in the case and he stated about the detention of the vehicles, presence of the accused persons in the vehicles and seizure of contraband ganja from the vehicles.
P.W.15 Akhil Kumar Patnaik stated about the release of brass seal in his zima by P.W.14 vide zimanama Ext.7/3. 17
P.W.16 Biranchi Prasad Dehury was the S.D.P.O., Chikiti and he is the investigating officer who on completion of investigation submitted charge sheet.
The prosecution exhibited thirty six documents. Exts.1/11, 2/2, 3/3, 4/3, 5/3, 6/1, 17/3, 18, 33 and 34 are the seizure lists, Exts.9/3, 10, 11, 12/2, 13/2, 14/2 and 15/2 are the search lists, Exts. 7/2, 8/2, 19, 32 and 35 are the zimanama, Exts.20 to 24 are the written options given to the accused persons, Exts.25 to 29 are the written consent given by the accused persons, Ext.30 is the F.I.R., Ext.31 is the spot map and Ext.36 is the chemical examination report.
The prosecution also proved forty four material objects. M.O.I to M.O.VI are the sample packets, M.O.VII to XI are the mobile phones, M.O.XII to XLIII are the packets containing ganja and M.O. XLIV is the brass seal.
6. The learned Trial Court formulated the following points for determination:-
(I) Whether the accused persons were found
in illegal and unauthorized possession of
contraband Ganja (cannabis) at the alleged time and place of seizure;
(II) Whether the accused persons abetted the commission of offence under Section 20(b)(ii) 18 (C) of the NDPS Act and were the party to a criminal conspiracy to commit such offence in pursuance of such criminal conspiracy at the alleged time and place of seizure;
(III) Whether the accused persons used fake number plates in furtherance of their common intention at the alleged time and place of seizure.
The learned trial Court after analysing the evidence on record has been pleased to hold that the evidence of P.W.14 is quite clear, consistent, convincing, credible and above reproach and his evidence does not suffer from any inherent infirmity or improbability and therefore, there is no cogent reason or ground to doubt his veracity. It has been further held that there is no infraction or non-compliance of the mandatory provisions under sub-section (2) of Section 42 of the N.D.P.S. Act. It is further held that P.W.6, P.W.9, P.W.10, P.W.11, P.W.12, P.W.13, P.W.14 and P.W.16 were the departmental witnesses but their evidence cannot be discarded as it did not suffer from any inherent infirmity or improbability. It is further held that no explanation whatsoever has been offered by the accused persons as to how and under what circumstance such huge quantity of ganja came into their possession and therefore, it is amply established that the accused persons were found in 19 illegal and unauthorized possession of contraband ganja. It is further held that with regard to use of fake number plates which were recovered and seized, there is no evidence in proof of the charge that those number plates were fake and those had been used by the accused persons and therefore, the charge under section 482 read with section 34 of the Indian Penal Code fails.
7. Mr. Biswajit Nayak, learned counsel appearing for the appellant Firoz Alli Khan @ Bulu in CRLA No.259 of 2012 contended that the only material available against the appellant is the confessional statement of co-accused persons before police which has got no evidentiary value and there is no material on record relating to the ownership/possession of seized contraband ganja with the appellant. It is further contended that though as per the disclosure statement of five accused persons, the appellant in his INDICA Car bearing registration OR-02-X-7803 was piloting the three cars from which contraband ganja packets were seized but nobody had seen any such INDICA car piloting the three offending vehicles. It is further contended that relating to the disclosure made by the five accused persons regarding the involvement of the appellant, the evidence of the official witnesses except P.W.14 is completely silent in that respect and 20 therefore, the learned trial Court erred in convicting the appellant under Section 29 of the N.D.P.S. Act.
Mr. Prasant Kumar Sahoo, Mr. Jugal Kishor Panda Mr. Samvit Mohanty and Mr. D.P. Das, learned counsels appearing for the other appellants contended that there has been non-compliance of mandatory provisions under section 42(2) of the N.D.P.S. Act so also the provisions under section 55 of the N.D.P.S. Act. It is further contended that the malkhana registers of the concerned police stations have not been produced during trial by the prosecution to prove the safe custody of contraband ganja before its production in Court and dispatch for chemical analysis. It is further contended that neither the station diary entry nor the dispatch register was also produced during trial. It is further contended that there is no plausible explanation as to why the seized ganja were not produced during Court hours on 07.09.2009 before the learned Special Judge even though the articles were seized on 06.09.2009 and first information report was also lodged on that day. It is further contended that the brass seal which was given on the packets of seized ganja as well as sample packets was not produced in Court at the time of production of the seized ganja for verification and therefore, it is 21 a fit case where benefit of doubt should be extended in favour of the appellants.
Mr. Chita Ranjan Swain, learned Addl. Standing Counsel appearing for the State in all the appeals on the other hand contended that the learned trial Court has not only discussed the evidence of the official witnesses vividly but after analysing the same has come to the opinion that there are no infirmities in their version. It is further contended that since the vehicles were detained and search and seizure was made in a public place, therefore, section 43 of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is applicable in the case. It is further contended that there is compliance of the mandatory provisions of the N.D.P.S. Act and the seized ganja packets and the sample packets were kept in the malkhana of the police station in sealed condition and there was no chance of tampering with the articles. It is further contended that since huge quantity of ganja was seized from the possession of the appellants, for preparation of necessary documents and its production in Court, the delay caused cannot be said to be inordinate so as to create suspicion and therefore, the appeals preferred by the appellants should be dismissed.
22Discussion of evidence against appellant Firoz Alli Khan @ Bulu (CRLA No. 259 of 2012):
8. It is not disputed at the Bar that the appellant Firoz Alli Khan @ Bulu was not present in any of the three vehicles from which contraband ganja packets of commercial quantity were found. As per the F.I.R., after prolonged interrogation, the five persons found in the three vehicles disclosed that they along with the appellant Firoz Alli Khan @ Bulu and Kapila Sahu, Satya Swain and one Fakira of Nayagarh were dealing with ganja business since last two years and that they were bringing ganja from Gudum village near Vishakhapatnam and selling the same in Khurda, Bhubaneswar, Cuttack and Puri districts under the leadership of the appellant Firoz Alli Khan @ Bulu and Kapila Sahu and that the appellant Firoz Alli Khan @ Bulu was piloting them in one INDICA car bearing registration no.OR-02-X-7803.
P.W.14, the informant in his evidence has stated that during interrogation, the five persons present in the vehicles disclosed that they along with the appellant Firoz Alli Khan @ Bulu, Kapila Sahu, Satya Swain and one Fakira of Nayagarh were involved in ganja business since last two years and they used to bring ganja from village Gudum near Vishakhapatnam and selling them at Khurda, Bhubaneswar, Cuttack and Puri town and 23 on the relevant date, appellant Firoz Alli Khan @ Bulu was piloting them in his INDICA car bearing registration no.OR-02-X- 7803.
The said vehicle bearing registration no.OR-02-X- 7803 was seized from the appellant Firoz Alli Khan @ Bulu by P.W.16 as per seizure list Ext.17/3 but the R.C. book of the vehicle in question which was also seized under the same seizure list indicated that such vehicle stood in the name of one Kailash Chandra Panda, son of Baidanath panda of village-Gudum, P.S.- Khurda, Dist-Khurda. The registered owner of the vehicle has not been examined in this case.
The other official witnesses like P.W.6 Narayan Chandra Pati, A.S.I. of police, P.W.9 Satyanarayan Mohanty and P.W.10 M. Ramesh Rao, the two home guards attached to Jarada police station, P.W.11 Debabrata Sahu, Tahasildar, Chikiti who were also present at the spot at the time of search and seizure have not stated about any such disclosure made by the five persons present in the vehicles implicating the appellant in the crime.
Therefore, the only material available on record against the appellant Firoz Alli Khan @ Bulu is the confessional 24 statement of co-accused persons before P.W.14, the Inspector in Charge of Jarada police station.
9. The object of section 25 of the Evidence Act, wherein it is mentioned that no confession made to a police officer, shall be proved as against a person accused of any offence, is that the officer would make every effort to collect the evidence of the commission of the crime and from the power he possesses, he has the capacity to influence, pressurise or subject the person to coercion to extract confession.
A confessional statement made by a person whilst he is in custody of a police officer shall not be proved as against him unless it is made in the immediate presence of a Magistrate in view of section 26 of the Evidence Act. In the present case, the evidence of Tahasildar-cum-Executive Magistrate (P.W.11) as already indicated is silent regarding any confessional statement by the co-accused persons implicating the appellant Firoz Alli Khan @ Bulu.
Confession of a co-accused does not come within the definition of "evidence" as contained in section 3 of the Evidence Act. It cannot be treated as substantive evidence. Law is well settled that the Court cannot start with confession of a co- accused person. It must begin with other evidence adduced by 25 the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. (Ref:- A.I.R. 1964 S.C. 1184, Hari Charan Kurmi -Vrs.- State of Bihar) In case of Raj Kumar Karwal -Vrs.- Union of India reported in A.I.R. 1991 S.C. 45, questions were raised as to whether the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer-in-charge of a police station under section 53 of N.D.P.S. Act are "police officers" within the meaning of section 25 of the Evidence Act and if the answer is "yes", whether the confessional statement recorded by such officer in course of investigation of a person accused of an offence under the said Act, is admissible in evidence as against him? The Hon'ble Court held as follows:--
"19. ............These provisions found in Chapter V of the Act show that there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer-in-charge of a 26 police station under Section 53, for the purpose of investigation of offences under the Act.
xx xx xx xx xx xx 21. For the offences under the Act, the
investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefor, provides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code..............Any person on whom to investigate under chapter XII is conferred can be said to be a 'police officer', no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under Section 173 of the Code. That is why this 27 Court has since the decision in Badku Joti Savant (A.I.R. 1966 S.C. 1746) accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a 'police officer' under Section 25 of Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code.........We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise 'all' the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code."28
In case of Kanhaiyalal -Vrs.- Union of India reported in A.I.R. 2008 S.C. 1044, where a question was raised whether a statement made by accused on being summoned before the Investigating Officer appointed by Narcotic Superintendent taken under section 67 of the NDPS Act can be treated as a confessional statement and whether the accused could be convicted on the basis thereof in the absence of any other corroborative evidence, it was held as follows:-
"36. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances.
While the provisions of the Prevention of Terrorism Act, 2002 and TADA Act, 1987, are much more stringent and excludes from its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the 29 latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made there under. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him, he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. Of course, this Court has also held in Pon Adithan's case (supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or 30 compulsion and if supported by corroborating evidence.
37. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava's case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In addition to the above, in the case of Raj Kumar Karwal -Vrs.- Union of India and Ors. 1991 Cri.L.J. 97, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not 'police officers' within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power 31 conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.
38. Considering the provisions of section 67 of the NDPS Act and the view expressed by this Court in RaJ Kumar Karwal's case (A.I.R. 1991 S.C. 45), with which we agree, that an officer vested with the powers of an Officer-in-charge of a police station under section 53 of the above Act is not a "police officer" within the meaning of Section 25 of the Evidence Act. It is clear that a statement made under section 67 of the NDPS Act is not the same as a statement under section 161 of the code, unless made under threat or coercion. It is this vital difference, which allows a statement made under section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of section 24 to 27 of the Evidence Act."
In case of Tofan Singh -Vrs.- State of Tamil Nadu reported in 2013 (12) SCALE 552, doubting the correctness of the dicta in Kanhaiyalal case (supra), it was held as follows:-
"34. We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the 32 Evidence Act viz. the "influence or authority"
that an officer is capable of exercising over a person from whom a confession is obtained. The term "police officer" has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion on persons who are searched, detained or arrested. The influence exercised has to be, assessed from the consequences that a person is likely to suffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who:
(i) is considered to be a police officer in
"common parlance" keeping into focus the
consequences provided under the Act.
(ii) is capable of exercising influence or authority over a person from whom a confession is obtained."
The matter was referred to a larger Bench for re- consideration of the issue as to whether the officer investigating the matter under N.D.P.S. Act would qualify as police officer or not and whether the statement recorded by the Investigating 33 Officer under section 67 of the N.D.P.S. Act can be treated as confessional statement or not, even if the Officer is not treated as police officer.
10. Since the only material available on record against the appellant Firoz Alli Khan @ Bulu is the confessional statement of co-accused persons before P.W.14, the Inspector in Charge of Jarada police station which is not corroborated by the other official witnesses, in these circumstances, the evidence against the appellant is rather slender and it is not safe to uphold his conviction on such evidence, particularly when there remains no evidence that the appellant was dealing with ganja business or that he had entered into criminal conspiracy with the co- accused persons or abetted the commission of any offence under Chapter IV of N.D.P.S. Act. There is also no clinching substantive evidence that on the relevant day, he was piloting the vehicles of the co-accused persons in an INDICA car which stood in the name of another person.
11. In view of the above analysis, CRLA No. 259 of 2012 is allowed. The impugned judgment and order of conviction of appellant Firoz Alli Khan @ Bulu under section 29 of the N.D.P.S. Act and the sentence passed thereunder by the learned trial 34 Court is not sustainable in the eye of law and accordingly, the same is hereby set aside.
Discussion of evidence against appellants Ramakrushna Sahu (CRLA No.98 of 2012), Trilochan Sahu (CRLA No. 123 of 2012), Subash Mahapatra @ Subash Ch. Mahapatra (CRLA No. 198 of 2012) and Kailash Chandra Panda (CRLA No. 330 of 2012):
12. The evidence of P.W.6 Narayan Chandra Pati, P.W.9 Satya Narayan Mohanty, P.W.10 M. Ramesh Rao, P.W.11 Debabrata Sahoo and P.W.14 Trinath Mishra are relevant so far as the presence of the appellant Rama Krushna Sahoo, Trilochan Sahoo, Subash Mohapatra @ Subash Chandra Mohapatra and Kailash Chandra Panda in the offending vehicles as well as seizure of contraband ganja of commercial quantity from those vehicles.
(i) P.W.6 Narayan Chandra Pati, A.S.I. of Police stated that he accompanied the patrolling party on the date of occurrence and further stated about the approach of the three vehicles from the side of Andhra Pradesh towards Patrapur and about their detention at Patrapur bus stand. He further stated about the fleeing away of two persons from the vehicles and apprehension of five accused persons from the vehicle. He 35 further stated about the detection of ganja packets in the vehicles, weighment of ganja found in those packets, drawal of sample of ganja and its seizure and sealing of ganja packets with the personal seal of the Inspector in charge in presence of P.W.11, the Tahasildar, Chikiti.
It is contention by the learned counsels for the appellants that P.W.6 has not named which of the accused persons were present in which vehicle and he has also not stated about handing over of the personal seal by the Inspector in charge to any person after ganja packets and sample packets were seized. It is further contended that even though P.W.6 stated about the search of the vehicles and seizure of contraband ganja in his presence but he is not a witness to the seizure list and therefore, his evidence cannot be accepted.
Learned counsel for the State on the other hand contended that P.W.6 has corroborated the evidence of P.W.14, the informant who has given the evidence in detail and there are no material discrepancies between the two and therefore, the evidence of P.W.6 cannot be discarded.
Adverting to the contentions raised by the learned counsels for the respective parties, it is apparent that the seizure lists (Ext.1/11) does not indicate that P.W.6 is a witness to the 36 seizure. The seizure list indicates that P.W.1 and P.W.2 are the two seizure witnesses who have not supported the prosecution case. The seizure list further indicates that the time of seizure to be 9.30 p.m. whereas P.W.6 stated that he along with others stayed at the spot till 9.00 p.m. which presupposes that he had left the spot prior to the preparation of the seizure list. P.W.6 stated that they apprehended five persons at Patrapur bus stand by chasing and intercepting the vehicles and those five persons are the accused persons in the case. Six accused persons were facing trial and it is not known as to which five accused persons P.W.6 was referring to as his evidence is silent as to which of the accused persons were present in which vehicle. He has also not stated about the personal search of the patrolling party members and also of the accused persons present in the vehicles before the search of the vehicles.
Therefore, in my humble view, the evidence of P.W.6 cannot be accepted as lending support to the evidence of P.W.14.
(ii) P.W.9 Satya Narayan Mohanty and P.W.10 M. Ramesh Rao were the home guards attached to Jarada police station and they stated to have accompanied the patrolling party on the date of occurrence, approach of the three vehicles from 37 Andhra Pradesh side, interception of the vehicles at Patrapur bus stand, arrest of five accused persons from the vehicles after two of the occupants fled away. He further stated about the recovery of bags containing contraband ganja from the vehicles and its weighment.
Similar contentions were raised by the learned counsels for the respective parties as were raised in case of P.W.6.
Considering the submissions raised at the Bar by the learned counsels for the respective sides, it is found that the evidence of P.W.9 and P.W.10 are silent regarding presence of any of the appellants in the vehicles in question inasmuch as they have stated that they arrested five accused persons but they have not stated who those five accused persons are. They have not stated as to who was present in which vehicle, about the personal search of the patrolling party members and also of the accused persons present in the vehicles, drawal of sample or sealing of the sample packets and the bulk quantity of ganja. They are also not signatories to the seizure list (Ext.1/11) and therefore, the evidence of P.W.9 and P.W.10 are no way helpful to the prosecution and no reliance can be placed on such evidence.
38
(iii) P.W.11 Debabrata Sahu, the Tahasildar of Chikiti stated to have arrived at the spot where the three vehicles were detained and he found the accused persons were sitting inside the vehicles. He disclosed his identities as Executive Magistrate before the accused persons and the accused persons gave their written options for search in his presence. He further stated to have given his personal search and also seizure of five mobile phones from the accused persons under different seizure lists and seizure of contraband ganja in his presence as per seizure list.
It is contended by the learned counsels for the appellants that the evidence of P.W.11 is silent as to which of the accused persons were present in which vehicle and he has not stated about the personal search of the other patrolling party members being taken in his presence and his evidence is totally silent about any weighment of ganja in his presence, drawal of samples of ganja by P.W.14 and also sealing of the bulk ganja packets as well as sample packets or handing over the personal seal of P.W.14 to anybody and therefore, his evidence is far from convincing and as such cannot be accepted as lending corroboration to the evidence of P.W.14.
39
Learned counsel for the State on the other hand contended that even though the evidence of P.W.11 is not elaborate one but it can still be taken as a corroborative piece of evidence as the signatures of P.W.11 find place on the seizure lists (Ext.1/11).
Considering the submission raised at the Bar, I am of the view that even though the signatures of P.W.11 appears on three pages of seven pages seizure list Ext.1/11 but being an important witness on behalf of the prosecution, it was expected of him to adduce evidence in detail as to how the search was made, the nature of articles seized, the procedure followed at the time of search and seizure by P.W.14, the weighment of the contraband ganja, the drawal of samples and the sealing of articles. The evidence of P.W.11 is a cryptic one and the material aspects of the prosecution case like personal search of other patrolling party members being taken, the nature of articles seized from each of the vehicles and its quantity, drawal of samples and also about the sealing of the sample packets and bulk ganja packets at the spot, is conspicuously absent in his evidence. P.W.11 has admitted that he had not given any endorsement or any documents to the effect that polythene bags 40 containing ganja were opened in his presence and that he cannot say which bag containing ganja was seized from which accused.
In view of the nature of evidence adduced by P.W.11, I am of the humble view that his evidence is no way helpful to the prosecution and therefore, not acceptable.
(iv) As discussed above, the evidence of the other official witnesses to the search and seizure is found to be not satisfactory. The only evidence in that respect left out is that of P.W.14 Trinath Mishra, the Inspector in charge of Jarada police station.
P.W.14 has stated about the receipt of reliable information regarding transportation of ganja in three vehicles from Visakhapatanum side towards Bhubaneswar which he entered in the station diary of the police station as S.D.E. No.120 dated 06.09.2009. He further stated about intimating the fact to Superintendent of Police, Berhampur and S.D.P.O., Chikiti over telephone which he entered in the station diary entries no.121 and 122 and he also submitted the report to those authorities which found mentioned in S.D.E. No.120 as per dispatch register no.1095 and 1096 respectively. He further stated that requesting S.D.M., Berhampur to depute one Executive Magistrate to remain present during search and seizure, he immediately along with 41 other police officials left the police station in police jeep without obtaining any search warrant from the Court as there was no sufficient time to obtain search warrant and there was every possibility of escape of the culprits with the contraband articles.
Contentions were raised by the learned counsels for the appellants regarding non-compliance of provision under section 42 of the N.D.P.S. Act by P.W.14. Learned counsel for the State on the other hand contended that the vehicles were detained and search and seizure was made in a public place and therefore, section 43 of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is applicable in the case.
Law is well settled that total non-compliance with the provisions under sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. Section 42 (2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours. Under section 42 (1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. 42 Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search during that period would afford opportunity for the concealment of evidence or facility for the escape of an offender. The copy of information taken down in writing under sub-section (1) or the grounds of belief recorded under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act has to be sent to his immediate superior official within seventy-two hours.
In case of State of Punjab -Vrs.- Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, it is held as follows:-
"10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to 43 believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief.
Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of his belief under the proviso to Sub-section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."44
Regarding compliance of provisions under sections 42(1) and 42(2) of the N.D.P.S. Act in case of seizure of contraband articles from a vehicle in a public place which was based on earlier reliable information, it is apparent that there is no evidence that the three vehicles were of public conveyance.
In case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported 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, a Division Bench of the Hon'ble Supreme Court 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.14 suddenly carried out search at a public place. P.W.14 himself stated that he had received the reliable information while he was at the police station and he has come up with a case of compliance of 45 section 42 of the N.D.P.S. Act. There is no material that the offending vehicles come within public conveyance and when the search was conducted after recording information under section 42(1), therefore, even though the seizure was made in a public place during day time, in my humble view, compliance of the provisions of section 42 of the N.D.P.S. Act is necessary.
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 an 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 46 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 requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 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 47 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.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in 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, 48 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 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 counsels 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.
P.W.14 has come up with a case of compliance of section 42 of the N.D.P.S. Act in his examination in chief but in cross-examination, he has stated that he reduced the 49 information to writing at the police station but he did not remember through whom he sent the written information to his higher authority and that he had not received any information regarding endorsement from his higher authority relating to the receipt of information. He further stated that the office of the S.D.P.O., Chikiti is about 20 kms. from Jarada police station. P.W.16 was the S.D.P.O., Chikiti who took charge of investigation of the case on 07.09.2009 from P.W.14 and he stated that the distance between Jarada police station and his office at Chikiti is 25 kms. and he further stated that there is nothing on record to show on which basis he went to Jarada police station and took charge of investigation of the case. The relevant station diary entries nos.120, 121 and 122 dated 06.09.2009 which were stated to have been made at Jarada police station by P.W.14 after receipt of reliable information regarding transportation of ganja and also regarding intimation given to the official superior have not been proved in the case. The entries of dispatch register nos. 1095 and 1096 regarding sending intimation to the official superior have also not been proved. No report with the copy of the S.D. Entry No.120 dated 06.09.2009 alleged to have been sent by P.W.14 to the office of S.P., Berhampur and S.D.P.O., Chikiti has been proved in the 50 case. Nobody from the office of S.P., Berhampur has been examined to substantiate regarding receipt of any written information from P.W.14. The S.D.P.O., Chikiti who has been examined as P.W.16 is also silent regarding receipt of any written information as contemplated under section 42 of the N.D.P.S. Act from P.W.14.
Therefore, there is no corresponding documentary evidence in support of the oral evidence led by P.W.14 that he made station diary entries after receipt of reliable information relating to transportation of ganja in three vehicles and regarding dispatch of the report with the copy of the station diary entry to S.P., Berhampur and S.D.P.O., Chikiti. Since the total non-compliance of requirements of sub-sections (1) and (2) of Section 42 of the N.D.P.S. Act is impermissible particularly when the information was received when the police officer was in the police station with sufficient time to take action or where the reliable information calls for immediate action and there is no sufficient time to obtain search warrant or authorization and he has reason to believe that delay would result in the goods or evidence being removed or destroyed and it would not be feasible or practical to take down in writing the information given to him, he could take action as per clauses (a) to (d) of Section 51 42(1) of the N.D.P.S. Act and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior as held in case of Karnail Singh (supra). P.W.14 has stated that as there was no sufficient time to obtain search warrant from the Court and there was every possibility of escape of culprits with the contraband articles, he immediately along with other police officers and staff left the police station in the police jeep and in that respect station diary entry no.123 was made. The said station diary entry has not been proved in the case. P.W.14 has not stated about sending the copy of recording of ground of belief to his immediate official superior. Thus mere oral evidence of P.W.14 in absence of proof of corresponding documentary evidence is not sufficient to hold regarding compliance of the mandatory provisions of section 42 of the N.D.P.S. Act.
Coming to the contentions raised by the learned counsels for the appellants regarding non-compliance of the provisions under section 55 of the N.D.P.S. Act, the said section mandates an officer in-charge of the police station to take charge and keep in safe custody of articles seized under the Act within the local area of that police station which may be delivered to him and shall allow any officer who may accompany such article 52 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.
In the present case P.W.14 himself was the Inspector in Charge of Jarada police station and the contraband articles were seized within the local limits of his police station. He has stated that the seized properties were kept inside the malkhana of the police station after entering the same in the property register vide mal item no.51/2009 and kept in safe custody vide S.D. Entry No.132. He has stated that he had entered in the station diary book that he had kept the seized properties in the malkhana. Neither the relevant station diary entry nor the malkhana register has been proved in the case. P.W.16 has stated that on 07.09.2009 he produced the seized exhibits before the Court and on the same day at night, he kept the seized exhibits at Baidyanathpur police station on the direction of the Court as it was late and that the seized exhibits were kept in safe custody in Baidyanathpur police station malkhana after sealing the same properly. He further stated to have received the seized exhibits from Baidyanathpur police station on 08.09.2009 at 11.00 a.m. and produced the same before the 53 S.D.J.M., Berhampur at 12.00 noon. Neither the Inspector in Charge of Baidyanathpur police station has been examined to prove regarding safe custody of the seized articles in the malkhana nor the malkhana register of Baidyanathpur police station has been proved in the case. P.W.16 has stated that he has not seized the malkhana register of Jarada police station on the day he took charge of investigation. He further stated that Benudhar Parida was in charge of malkhana of Jarada police station but he has not examined him. He further stated that the I.I.C. of Baidyanathpur police station did not put his official seal on the seized sample ganja and bulk ganja. The order sheet of the learned Special Judge, Berhampur indicates that the seized articles were produced on 07.09.2009 in his residential office at 10.05 p.m. and a prayer was made by the S.D.P.O., Chikiti for sending the samples already drawn for chemical analysis to the R.F.S.L., Berhampur and to receive the seized articles in the Court malkhana. The learned Special Judge directed for production of the samples before the S.D.J.M., Berhampur on 08.09.2009 for sending the same for chemical analysis and to produce the seized articles to be kept in Court malkhana. The I.O. was directed to keep the seized articles and the samples drawn in safe custody till then. When the articles were seized on 54 06.09.2009 and the first information report was lodged on that day itself and P.W.16 took charge of investigation of the case on 07.09.2009 at 8.45 a.m., it is not understood as to why the seized articles along with the sample packets were produced in the night at 10.05 p.m. in the residential office of the learned Special Judge, Berhampur. It was the duty of the prosecution to adduce cogent evidence regarding safe custody of the seized articles along with sample packets in the malkhana of Jarada police station as well as Baidyanathpur 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 while taking it out, the entry should also be made in such register. This would indicate the safe custody of 55 the articles seized during investigation of a case before its production in Court.
When the malkhana registers of Jarada police station as well as Baidyanathpur police station have not been proved in the case and the officers in charge of malkhana of the respective police stations have not been examined, 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.
According to the prosecution case, the brass seal used by P.W.14 for sealing the seized ganja as well as sample packets was kept with P.W.15. Except P.W.14, no other official witnesses have stated about handing over the brass seal to P.W.15. The brass seal was not produced in Court when the seized ganja and sample packets were produced for verification. It is also the requirement of law that when the contraband articles are seized and sealed with the seal impression then the brass seal has to be left in the zima of a reliable person under zimanama and instruction is to be given to such person to produce it before the Court for verification at the time of production of articles. During trial, the brass seal was produced by P.W.15 and it was marked as M.O. LXIV.
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13. In view of the glaring inconsistencies in the evidence of prosecution witnesses, absence of clinching evidence relating to compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, absence of any cogent materials that the seized articles along with sample packets were kept in safe custody till its production in the Court, I am of the view that it would be very risky to uphold the impugned judgment and order of conviction in respect of the appellants Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda under section 20(b)(ii)(C) of the N.D.P.S. Act. Accordingly, the CRLA No.98 of 2012, CRLA No. 123 of 2012, CRLA No. 198 of 2012 and CRLA No. 330 of 2012 filed by the respective appellants are allowed. 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 by the learned trial Court is hereby set aside.
14. In the result, the CRLA No.98 of 2012 filed by appellant Ramakrushna Sahu, CRLA No. 123 of 2012 filed by appellant Trilochan Sahu, CRLA No. 198 of 2012 filed by appellant Subash Mahapatra @ Subash Ch. Mahapatra, CRLA No. 259 of 2012 filed by appellant Firoz Alli Khan @ Bulu and CRLA No. 330 of 2012 filed by appellant Kailash Chandra Panda are 57 allowed. The appellants who are in custody shall be released 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.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 5th March,2018/Pravakar/Sisir/Sukanta