Orissa High Court
Sanjaya Kumar Tiwari And Another vs State Of Orissa on 16 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 416
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 551 Of 2011
An appeal under section 374(2) of the Code of Criminal
Procedure from the judgment dated 29.06.2011 passed by the
Addl. Sessions Judge -cum- Special Judge, Jeypore in Criminal
Trial No.36 of 2010.
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Sanjaya Kumar Tiwari
and another ......... Appellants
-Versus-
State of Orissa ......... Respondent
For Appellant No.1: - Mr. Manoj Kumar Panda
For Appellant No.2: - Mr. Dayananda 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: 16.11.2017
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S. K. SAHOO, J.The appellants Sanjaya Kumar Tiwari and Sailendra Saha faced trial in the Court of the learned Addl. Sessions Judge
-cum- Special Judge, Jeypore in Criminal Trial No.36 of 2010 for the offence punishable under section 20(b)(ii)(C) of the Narcotic 2 Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act'). The appellant no.1 Sanjaya Kumar Tiwari was further charged under sections 279/337/307 of the Indian Penal Code and sections 181/184/187/190(2)/196 of the Motor Vehicles Act, 1988 (hereafter 'M.V. Act'). The appellant no.2 Sailendra Saha was further charged under sections 279/337/307/109 of the Indian Penal Code.
The learned trial Court vide impugned judgment and order dated 29.06.2011 found both the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced each of them to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1,00,000/- (rupees one lakh only) each, in default, to undergo further R.I. for a period of two years each. The appellant Sanjaya Kumar Tiwari was acquitted of the charges under section 307 of the Indian Penal Code and section 190(2) of the M.V. Act but he was found guilty under sections 279/337 of the Indian Penal Code and sections 181/184/187/196 of the M.V. Act and sentenced to undergo S.I. for six months on each count for the offences punishable under sections 279/337 of the Indian Penal Code and S.I. for three months on each count for the offences under sections 181/187/196 of the M.V. Act and to undergo S.I. for six months for the offence under section 184 3 of the M.V. Act and the substantive sentences were directed to run concurrently. The appellant Sailendra Saha was not found guilty of any other offences except under section 20(b)(ii)(C) of the N.D.P.S. Act.
2. The prosecution case, as per the first information report lodged by one Soubhagya Kumar Swain (P.W.12), officer in charge of Kotpad police station is that on 19.09.2008 at 9.50 a.m. he received information from reliable source that one sky colour Mahindra Scorpio vehicle bearing registration no.CG 04 B 2815 was proceeding in a high speed along N.H.43 from Jeypore side towards State of Chhattisgarh via Kotpad which was suspected to have contained contraband articles. P.W.12 made the station diary entry no.361 dated 19.09.2008 and intimated the information to C.I of police, Borigumma Circle who was present at Kotpad on NAC election duty and handed over an extract of S.D. Entry No.361 to him. He also intimated the fact to S.D.P.O., Jeypore and S.P., Koraput over cell phone and VHF message was sent to them vide D.R. No.1410 dated 19.09.2008 along with extract of the station diary entry. P.W.12 had reason to believe that the delay in causing to obtain search warrant may facilitate the accused persons to escape and therefore, he decided to conduct the search without warrant and recorded the 4 ground of belief in the Station Diary. P.W.12 commanded some police officials to Chandili forest check gate and directed them to remain there in high alert to intercept the suspected Scorpio vehicle. P.W.12 left the police station to have a close watch over the suspected Scorpio vehicle. At about 2.00 p.m. while P.W.12 was performing patrolling in Kotpad town along N.H.43, he found that the Mahindra Scorpio vehicle was passing the town speedily. He immediately telephoned the A.S.I. Kamdev Nayak who was at Chandili forest check gate to intercept the vehicle and he also followed the said vehicle in the police jeep. A.S.I Kamdev Nayak called P.W.12 back and intimated that the Scorpio vehicle seeing the check gate bar down to ground, turned back and rushed towards Kolpad side and in that process, it caused injury to a Havildar. In order to obstruct the movement of the Scorpio vehicle, P.W.12 made one truck parked covering the N.H.43 near village Dongri and the jeep of the Kotpad police station was also parked on the National Highway on the earthen part of the road at a safe distance from the truck. It was found that the Scorpio vehicle was coming speedily and it was going to dash against three cyclists who jumped from their cycles to the paddy field and then the Scorpio vehicle dashed against the P.S. jeep and ultimately it stopped. Three persons were there in the vehicle 5 and they tried to flee away through the paddy field and two of them were caught hold of and one managed to escape and they disclosed their names as Sanjaya Kumar Tiwari (appellant no.1) and Sailendra Saha (appellant no.2). When P.W.12 expressed his intention for their personal search and search of the vehicle in presence of a Gazetted Officer or Executive Magistrate as per the section 50 of the N.D.P.S. Act, both the appellants consented to be searched in present of the Executive Magistrate. Accordingly, P.W.12 sent a requisition to S.D.M., Jeypore for deputation of an Executive Magistrate to remain present at the spot during search and seizure of contraband ganja. Two respectable persons of the locality were called to the spot and Sri Benjamin Prasad Deogam, OAS, B.D.O., Kotpad reached at the spot at about 5.15 p.m. and in his presence when the appellants were asked, they confessed to have procured the contraband ganja from Chitrakonda (Malkangiri) for the purpose of sale at Raipur. Both the appellants gave their consent to the searched before the Executive Magistrate in writing and accordingly, first personal search was taken and subsequently the Scorpio vehicle was searched and seven numbers of full gunny bags and six numbers of half gunny bags all total thirteen gunny bags were found to have contained ganja and weight of ganja in different bags were 6 taken by the weighman and the total quantity came to be 234 kgs. Samples of 25 grams in duplicate were taken from each of the bags and it was marked as A-1 to M-1 and A-2 to M-2. The sample ganja packets were separately packed in polythene packets and each packet was again packed in separate individual cloth made packets. Papers slips containing the signature of the Executive Magistrate, witnesses, the appellants, weighman and P.W.12 along with Station Diary entry reference who were prepared. The signatures containing paper slips were kept inside the ganja sample packets and in the ganja bulk bags were properly sealed with the brass seal of P.W.12 in presence of the witnesses, appellants and Executive Magistrate and seizure lists were prepared. The Mahindra Scorpio vehicle was also seized. The appellants failed to produce R.C. book, driving licence, insurance papers and other connected papers. The personal brass seal of P.W.12 was handed over to the Executive Magistrate for safe custody with an instruction to produce the same in Court during trial and zimanama was prepared. P.W.12 arrested both the appellants, drew up the plain paper F.I.R. at the spot and returned to Kotpad police station with the vehicle, the bulk ganja packets, sample ganja packets and presented the F.I.R., on the basis of which Kotpad P.S. Case No.88 of 2008 was 7 registered on 19.09.2008 under section 20(b) of the N.D.P.S. Act and sections 279/237/307/109 of the Indian Penal Code and sections 177/180/181/184/187/190(2)/196 of the M.V. Act against the two appellants.
The seized materials were entered in the P.S. Malkhana register and a station diary entry (Ext.27) was also made to that effect. Since the appellants had received injuries, they were sent for medical examination P.W.12 prepared a detail report in compliance of section 57 of the N.D.P.S. Act and sent it to the official superior vide Ext.28. The seized vehicle was inspected by the M.V.I., Koraput inside the police station campus and he submitted his report vide Ext.30. On 21.09.2008 the appellants were forwarded to the Court of learned Sessions Judge -cum- Special Judge, Koraput at Jeypore along with seized ganja and sample packets. On 22.09.2008 the sample packets were produced before the learned J.M.F.C., Kotpad as per the direction of the learned Special Judge, Koraput, Jeypore for sending the same for chemical examination and accordingly, the order was passed and the sample packets were sent to R.F.S.L. Berhampur on 23.09.2008 for chemical analysis. The chemical examiner's report indicated that the exhibits marked as A-1 to M-1 were containing flowering and fruiting tops of cannabis 8 plants, commonly known as ganja. P.W.12 made over the charge of investigation to Bijay Kumar Gochhayat, Circle Inspector of Police, Boriguma and then it was taken over by Pramod Kumar Panigrahi (P.W.11) who was the Inspector in charge of Kotpad Police Station who submitted charge sheet against the appellants.
3. The defence plea of the appellant Sanjaya Kumar Tiwary was that he had parked the Scorpio vehicle by the side of the road due to break down. The police officials demanded bribe from him and as he did not oblige, he has been falsely implicated in the case. The appellant Sailendra Saha took a plea that he was not going in the Scorpio vehicle and he got down from Payal bus at about 4.00 a.m. at Kotpad in order to go to Girla for treatment of the right shoulder fracture and the police took him to police station and falsely implicated in the case.
4. In order to prove its case, the prosecution examined twelve witnesses.
P.W.1 Gangadhar Majhi stated that while he along with others were going in a bicycle carrying fertilizer, one four wheeler vehicle came from the backside in a high speed and dashed against them for which he sustained injuries. 9
P.W.2 Subash Harijan and P.W.3 Diptiram Kati did not support the prosecution case.
P.W.4 Ch. Venketeswar Rao also did not support the prosecution case for which he was declared hostile by the prosecution. He stated that the police called him to the police station and asked him to sign some papers and accordingly, he signed in fifteen papers.
P.W.5 P. Ramesh stated that on being called by one police official, he came to Kotpad police station where he weighed thirteen bags containing ganja which was found to be 23.34 kgs. and one gold smith P. Ravi Kumar (P.W.6) also came to the police station with a small weighing balance and he also weighed the ganja for the sample packets. He was declared hostile by the prosecution.
P.W.6 P. Ravi Kumar stated that at the police station he was asked to take out sample of 25 grams from each of the bags in two packets which were seized by the investigating officer. He was also declared hostile by the prosecution.
P.W.7 Manbodh Bhotra stated that while he was going along with others in bicycle, a four wheeler vehicle came from the backside speedily and dashed against him for which he sustained injuries.
10
P.W.8 K. Narayana Swamy was the A.S.I. of Police, Kotpad Police Station who stated about the seizure of six numbers of documents including the extracts of station diary entry.
P.W.9 Benjamin Prasad Deogam was the B.D.O.
-cum- Executive Magistrate, Kotpad who on the direction of S.D.M., Jeypore proceeded to the spot and he stated about the search of the Scorpio vehicle in his presence and seizure of thirteen packets of ganja from the vehicle. He further stated to have taken the brass seal (M.O.I) from the police.
P.W.10 Kamdeb Nayak who the A.S.I. of Police, Kotpad police station who was present at Chandili forest gate as per the direction of P.W.12 and he stated about the Scorpio vehicle coming to the forest gate but turning back and dashing against the cyclists and also the police jeep. He further stated about the apprehension of the appellants, search of the vehicle and seizure of ganja packets from the vehicle in the presence come B.D.O. -cum- Executive Magistrate.
P.W.11 Promod Kumar Panigrahi and P.W.12 Soubhagya Kumar Swain are the Investigating Officers.
The prosecution exhibited thirty two documents. Exts.1, 2, 3, 4, 5, 8 and 22 are the seizure lists, Exts.6, 7, 10, 11 23, 24 and 25 are the zimanama, Exts.9 is the copy of the order of S.D.M., Jeypore, Ext.11 is the weighmans report, Ext.12 is the command certificate, Exts.13, 14 and 15 are the medical examination report, Ext.16 is the copy of the station diary entry, Exts.17 and 18 are the written consent of the appellants, Ext.19 is the daily report copy of station diary entry, Ext.20 is the radio message sent to S.D.M., Jeypore, Ext.21 is the spot map, Ext.26 is the F.I.R., Ext.27 is the copy of the station diary entry, Ext.28 is the carbon copy of detail report, Ext.29 is the relevant entry of Malkhana register, Ext.30 is the M.V.I. report, Ext.31 is the command certificate and Ext.32 is the chemical examination report.
The prosecution also proved thirty nine material objects. M.O.I is the brass seal, M.O.II to M.O.XIV are the ganja bags, M.O.XV to XXVII are the sample packets, M.O.XXVII to XXXIII are the six photographs and M.O.XXXIV to XXXIX are the six negatives.
No witnesses were examined on behalf of the defence.
5. The learned trial Court after analyzing the evidence on record came to hold that the prosecution has well proved that the appellants were transporting ganja in the Scorpio vehicle. 12 The learned trial Court further came to hold that the defence has not adduced any evidence to prove the defence plea and therefore, the plea was not held to be tenable.
6. Mr. Manoj Kumar Panda, learned counsel appearing for appellant no.1 Sanjay Kumar Tiwari contended that there is no clinching material available on record as to who was driving the offending vehicle at the relevant point of time and therefore, the conviction of the appellant under sections 181/184/187/196 of the M.V. Act so also under sections 279/337 of the Indian Penal Code is not sustainable in the eye of law. It is further contended that there is non-compliance of mandatory provisions under sections 42(1) and 42(2) of the N.D.P.S. Act for which the appellants are entitled to be given benefit of doubt. It is further stated that the safe custody of the seized articles is also a doubtful feature and there is non-compliance of provision under section 57 of N.D.P.S. Act. He further contended that the officer (P.W.12) who conducted search and seizure has also conducted major part of the investigation which was not proper and the same has caused prejudice to the appellant. He further contended that the preparation of different documents at the spot is doubtful and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. 13
Mr. Dayananda Mohapatra, learned counsel appearing for the appellant no.2 Sailendra Saha adopted the argument of Mr. Panda and submitted that since the contraband articles have not been seized from the conscious/exclusive possession of the appellant no.2, benefit of doubt should be extended in his favour.
Mr. Prem Kumar Patnaik, learned Addl. Govt.
Advocate on the other hand submitted that since the vehicle was 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 the Malkhana register as well the station diary entry which have been proved by the prosecution would indicate that after the seized contraband ganja and the sample were brought to Kotpad police station, the same was kept in the police malkhana and relevant entries in that respect was also made in the Malkhana register. He further contended that as per the orders of the learned Special Judge, the bulk ganja and one part of the sample packets were kept in Court Malkhana and other part of the sample packets were sent for chemical analysis and the chemical examiner's report would indicate that the sample packets were in a parcel which consisted of one cardboard box 14 enclosed within cloth cover which was sealed. It is contended that when the samples packets were prepared and sealed at the spot in the presence of an Executive Magistrate and it was produced in Court as well as before the chemical examiner in the sealed condition, the hypothetical argument that there was possibility of tampering with the sealed packets cannot be accepted. The learned counsel further contended that not only the appellant no.1 Sanjaya Kumar Tiwari was driving the vehicle speedily but due to such rash and negligent driving, it has dashed against a number of persons and caused injuries to them which has also been duly proved and therefore, the learned trial Court was justified in convicting the appellant no.1 also under some sections of the Indian Penal Code and M.V. Act. It is further contended that when the appellants were caught at the spot while trying to escape from the vehicle which was carrying commercial quantity of ganja, it would be presumed that they were in the conscious/exclusive possession of the contraband articles and therefore, the learned trial Court was justified in convicting the appellants and the appeal should be dismissed.
7. Adverting to the contentions raised by the learned counsels for the respective sides and coming first to the conviction of the appellant no.1 Sanjaya Kumar Tiwari under 15 sections 279/337 of the Indian Penal Code as well as sections 181/184/187/196 of the M.V Act, for proving the ingredients of all these offences, it is one of requirement of law that the prosecution has to prove that the appellant no.1 was driving the vehicle at the relevant point of time. In the first information report, P.W.12 has mentioned that when the vehicle was detained and the appellants were caught while trying to escape, on personal search of the two appellants, cash of Rs.1,110/- was seized from appellant no.1 who declared to have driven the Scorpio vehicle. None of the witnesses examined during trial including P.W.12 have stated that they have seen the appellant no.1 Sanjaya Kumar Tiwari was driving the vehicle at the relevant point of time. None of them have also stated that the appellant no.1 declared himself to be the driver of the Scorpio vehicle when the cash of Rs.1,110/- was seized from his possession. The seizure list of the cash of Rs.1,100/- from the possession of the appellant no.1 which has been marked as Ext.3 is also silent about any such declaration made by appellant no.1 to be the driver of the Scorpio vehicle. The contents of the F.I.R. regarding the declaration of appellant no.1 as the driver of the Scorpio vehicle cannot be treated as substantive piece of evidence. Moreover such confessional statement of appellant 16 no.1 which is stated to have been made to a police officer cannot be used against him in view of section 25 of the Evidence Act. It is the prosecution case that there were three persons in the vehicle, out of which one escaped and two persons who are the appellants were caught hold of at the spot while escaping. Therefore, in absence of any positive evidence that the appellant no.1 was driving the vehicle at the relevant point of time, his conviction under sections 279/337 of the Indian Penal Code and sections 181/184/187/196 of the 1988 Act is not sustainable in the eye of law.
8. 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, though it is the submission of the learned counsel for the State that it was not necessary, it is contended by the learned counsel for the appellants that it is necessary as there is no evidence that Scorpio vehicle was a 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 17 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.12 suddenly carried out search at a public place. P.W.12 himself stated that he had received the reliable information 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 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.
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 18 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 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 section 42(1) 19 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 .
(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, 20 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 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 21 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.12 has mentioned in the first information report that while he was at the police station, he received information from one reliable source that one sky colured Mahindra Scorpio vehicle bearing registration no.CG 04 B 2815 was proceeding in a high speed along N.H.43 form Jeypore side towards Chhattisgarh via Kotpad with contraband articles and accordingly, he made station diary entry no.361 dated 19.09.2008 at 9.50 a.m. and he intimated the information to C.I. Police, Borigumma Circle and also to the S.D.P.O., Jeypore and S.P., Koraput over cell phone and VHF message was sent vide D.R. No.1410 dated 19.09.2008 along with extract of SDE No.361. He has further mentioned in the F.I.R. since he had reason to believe that delay in cause to obtain search warrant may facilitate the accused persons to escape, he decided to 22 conduct the search without warrant and accordingly, recorded the ground of belief in the station diary. In his evidence P.W.12 has stated that on getting reliable information on 19.09.2008 regarding illegal transportation of ganja from Orissa towards Chhattisgarh in Scorpio vehicle, he made station diary entry no.361, dated 19.09.2008 and he proved the station diary entry as Ext.16. Whatever P.W.12 has mentioned in the first information report regarding send of the information to C.I of Police, Borigumma Circle, S.D.P.O., Jeypore and S.P., Koraput has not been stated by him during his evidence. Though Ext.19 has been proved to be such report but on a plain reading of Ext.19 it reveals as follows:-
"Extract of S.D.E. No.361 dated 19.09.2008 of Kotpad P.S.- 09.50 a.m. -At this hour, I received information from reliable source that one sky coloured Mahindra Scorpio car bearing Regd. No.CG-04-B-2815 is proceeding in high speed from Jeypore side towards Kotpad which is suspected to contain contraband articles. Getting such reliable information, I commanded ASI K.D. Nayak, Hav/739 S.S. Pradhan, WC/16 Pranati Nayak and C/132 P.K. Machha to forest check gate, Chandili to check the Scorpio vehicle No.CG-04-B-2815, approaching from Borigumma side towards C.G., suspected to have contraband articles, vide C.C. No.26.
23 A copy of this S.D.E. is being sent to my immediate superior officer, C.I. of police, Boriguma with copy thereof to S.D.P.O., Jeypore and S.P., Koraput as per provision of section 42(2) of N.D.P.S Act.
Sd/-
True Copy OIC, Kotpad P.S. Therefore, even though in Ext.19, it is mentioned that copy of the S.D.E. No.361 dated 19.09.2008 was sent to the immediate superior officer i.e. C.I. of Police, Borigumma with a copy to S.D.P.O., Jeypore and S.P., Koraput as per the provision of section 42(2) of N.D.P.S. Act but P.W.12 has stated that there is no acknowledgement of C.I., Borigumma on Ext.19. Neither the C.I. of police, Borigumma nor the S.D.P.O., Jeypore nor S.P., Koraput has been examined to substantiate such aspect.
Thus except mentioning in Ext.19 that a copy of the S.D. entry was sent to different superior officials, there is no corresponding documentary evidence regarding receipt of such S.D. entry by any of the superior officials and there is also no oral evidence that any such copy of the S.D. entry was received by any of them.
When it is the requirement of law that the copy of the information reduced into writing has to be sent to the 24 immediate superior official before proceeding to take any action in terms of clauses (a) to (d) of section 42(1) of the N.D.P.S. Act and the total non-compliance is impermissible and when P.W.12 received such information while at the police station and reduced the same into writing in the station diary book, in absence of any clinching documentary and oral evidence that such writing has been sent to the immediate superior officer, I am of the view that the contention which has been raised by the learned counsel for the appellants that there is non-compliance of section 42(1) and 42(2) of the N.D.P.S. Act has got sufficient force.
9. Coming to the non-compliance of section 57 of the N.D.P.S. Act, in the case of Balbir Singh (supra), it has been held that the provisions of sections 52 and 57 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 the evidence regarding arrest or seizure as well as on the merits of the case.
In the case in hand, P.W.12 has stated that he sent a detailed report in compliance with section 57 of the N.D.P.S Act 25 to the superior authority and Ext.28 with the carbon copy of the said detailed report.
Section 57 of the N.D.P.S. Act states that whenever any person makes any arrest or seizure under the Act, within forty-eight hours next after such arrest or seizure, he shall make a full report of all the particulars of such arrest or seizure to his immediate official superior.
Looking at Ext.28 which is dated 19.09.2008 and stated to be a detailed report prepared as per the provision under section 57 of the N.D.P.S. Act, it contains in the concluding paragraph as follows:-
"The two accused persons were forwarded to the Court of Sessions, Jeypore and the bulk ganja along with samples from A/2 to M/2 were deposited in the Sessions Court Malkhana and order was obtained to despatch the sample sealed ganja to R.F.S.L., Berhampur for chemical examination through J.M.F.C., Kotpad".
The accused persons were forwarded to the Court of learned Sessions Judge -cum- Special Judge, Koraput at Jeypore on 21.09.2008 at the residence office and the bulk ganja along with the samples were deposited in the Sessions Court Malkhana 26 on that day as per the Court's order and the order to dispatch the sealed sample ganja packets to R.F.S.L., Berhampur for chemical examination was obtained from learned J.M.F.C., Kotpad on 22.09.2008. Therefore, the mention of these aspects regarding forwarding of the accused persons to the Court, deposit of bulk ganja and sample packets in the Sessions Court Malkhana as well as obtaining order through J.M.F.C., Kotpad to dispatch the sealed sample ganja to R.F.S.L., Berhampur in Ext.28 which is dated 19.09.2008 makes it clear that Ext.28 was not prepared on 19.09.2008 but it was prepared subsequently at least after 22.09.2008 and it has been ante-dated.
The conduct of P.W.12 in creating such document like Ext.28 to show compliance of section 57 of the N.D.P.S. Act is blameworthy and it can be said that his investigation is not free from doubt and impartial. The investigating officer who is supposed to conduct a free, fair and impartial investigation has tried to create false evidence against the appellants regarding compliance of provisions under the N.D.P.S. Act. Therefore, I am of the view that creating a document like Ext.28, P.W.12 has conducted a serious lapse on his part towards fair investigation.
10. Coming to the safe custody of the seized articles and sample packets, it is the prosecution case that the weighmen 27 were called to the spot and they weighed the contraband ganja and sample packets were prepared at the spot in duplicates, seizure lists were prepared and then it was sealed with the brass seal of P.W.12 which was handed over to the Executive Magistrate (P.W.9) and thereafter, P.W.12 came to the police station and lodged the first information report on 19.09.2008. In the F.I.R. dated 19.09.2008, P.W.12 has mentioned that his personal brass seal was handed over to P.W.9 for safe custody with instruction to produce the same in the Court during trial and zimanama was obtained from him. P.W.9 stated that the brass seal (M.O.I) was given in zima under zimanama Ext.10. The zimanama Ext.10 indicates that it was executed on 20.09.2008. Therefore, the recitation made in the first information report that by the time of lodging of the first information report on 19.9.2008 at 11.50 p.m. at Kotpad Police Station, the personal brass seal of P.W.12 was handed over to P.W.9 is not correct. This is another suspicious conduct of P.W.12 which creates doubt about his fairness in the investigation.
P.W.12 has stated that on 20.09.2008, he forwarded both the appellants to the Court of learned Sessions Judge -cum- Special Judge, Koraput-Jeypore along with the seized ganja and sample packets. On going through the lower Court records, it 28 appears that neither the appellants nor the seized ganja or the sample packets were produced in Court on 20.09.2008 but it was produced on 21.09.2008 in the residence office of learned Sessions Judge -cum- Special Judge, Koraput-Jeypore. On perusal of the order dated 21.09.2008 of the learned Special Judge, it reveals that the investigating officer filed two petitions, one was to deposit the bulk ganja packet and one set of sample ganja packet in the Sessions Court Malkhana at Jeypore and another petition was to send the sample packets marked as A-1 to M-1 to R.F.S.L., Berhampur for chemical examination and report and the sample packets stated to have contained contraband Ganja. The learned Sessions Judge -cum- Special Judge has mentioned in the order dated 21.09.2008 that the sealed packets as well as the sealed sample packets were produced before him for perusal and he directed the learned J.M.F.C., Kotpad to send the sample ganja packets such as A-1 to M-1 to the Deputy Director, R.F.S.L., Berhampur for chemical examination and opinion and to open a part file case record and the said part file case record was to be sent to the Special Court for reference in the case. The learned Special Judge further directed the in charge of Malkhana District Court, Jeypore to receive the bulk ganja packets marked as 'A' to 'M' and the 29 sealed sample packets marked as A-2 to M-2 in the District Court, Malkhana. The order dated 22.09.2008 of the learned J.M.F.C., Kotpad in the part file indicates that the seized sample ganja packets such as A-1 to M-1 were forwarded with office memo No.1179 dated 22.9.2008 to the Deputy Director, R.F.S.L., Berhampur for chemical examination and opinion. Therefore, not only the statement given by P.W.12 that on 20.09.2008 the accused persons along with seized ganja and sample packets were forwarded to the learned Sessions Judge - cum- Special Judge, Koraput at Jeypore is contrary to the order sheets of the Courts but also it appears that the sample packets were produced before the leaned Special Judge on 21.09.2008 and again before the learned J.M.F.C., Kotpad on 22.09.2008. The prosecution has proved the copy of Malkhana register as Ext.29 which indicates that even though the bulk ganja and sample ganja were received at Kotpad Police Station on 19.09.2008 but the bulk ganja were sent to the sessions Court on 21.09.2008 whereas the sample packets marked as A/1 to M/1 were sent to RFSL, Berhampur on 23.9.2008. If the sample packets were produced before the learned Special Judge on 21.09.2008, there should have been a specific entry to that effect in the Malkhana register regarding taking out of such 30 packets for its production. Similarly, if as per the order dated 21.9.2008, the sample packets were again produced before the learned J.M.F.C., Kotpad on 22.9.2008, there should have been an entry on dated 21.9.2008 in the Malkhana register to have received the sample packets in the Malkhana and again another entry should have been made on 22.09.2008 that those sample packets were taken out for its production before the learned J.M.F.C., Kotpad and again another entry should have been made to have received the same on 22.9.2008 for sending it to the RFSL, Berhampur. Therefore, four relevant entries which should have been there in the Malkhana register regarding dispatch of the sample packets to the Courts of learned Special Judge and J.M.F.C., Kotpad and receiving back the sample packets are absent in the Malkhana register.
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 31 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 the articles seized during investigation of a case before its production in Court. In the present case, the order sheets of the Court indicate that the sample packets were produced twice before the Court firstly on 21.09.2008 and secondly on 22.09.2008 but the Malkhana register is totally silent on such aspect.
The Malkhana entry register indicates that the sample packets marked as A-1 to M-1 were sent to R.F.S.L., Berhampur on 23.09.2008. The chemical examiner's report indicates that the parcel was received in the office of R.F.S.L., Berhampur on 23.09.2008. It was dispatched from the Kotpad police station on 23.09.2008 as mentioned in the Malkhana register through Havildar G.S. Majhi who has not been examined in the case.
The chemical examination report further reveals that the parcel consisted of one cardboard box enclosed within cloth cover which was sealed, was received and it contained thirteen 32 numbers of sealed cloth packets marked as Exts. A-1 to M-1 and a sheet of paper with specimen seal impression marked as Ext. S. The order sheet of the learned J.M.F.C., Kotpad is totally silent regarding any parcel consisting of any cardboard box was enclosed within cloth cover was sealed and it was directed to be sent for chemical examination. The order sheet of the learned J.M.F.C., Kotpad dated 22.09.2008 reveals that the sealed sample ganja packets such as A-1 to M-1 were forwarded. The forwarding letter is also silent about the sending of any sheet of paper with specimen seal impression marked as Ext. S. P.W.12 has not stated to have prepared any sheet of paper containing specimen seal impression or it was sent along with the sample packets A-1 to M-1. The personal brass seal of P.W.12 was handed over to the Executive Magistrate (P.W.9) as per the F.I.R. on 19.09.2008 and as per the zimanama on 20.09.2008 and P.W.9 produced the seal for the first time in Court on the date of his deposition i.e. 18.11.2010. If that be so, then the forwarding of a sheet of paper containing specimen seal impression to the chemical examiner in the cardboard box which got tallied with the seal impressions on Exts. A-1 to M-1 creates doubt as to whether P.W.12 had handed over his personal brass seal to P.W.9 as per the zimanama either on 19.09.2008 or 33 20.09.2008 rather it indicates that in spite of preparation of zimanama, the brass seal was with P.W.12 and it was utilized for putting the seal impression in a sheet of paper and marked as Ext. S to be dispatched along with the sample packets Exts. A-1 to M-1 for chemical analysis. Even though in the F.I.R. as well as in the evidence of P.W.12, it is mentioned that paper slips containing the signatures of Executive Magistrate, witnesses, suspects, both the weighmen and also of P.W.12 along with SDE reference were prepared and the signatures containing paper slips were kept inside the ganja sample packets and the same were properly sealed with the brass seal of P.W.12 but when it was opened by the chemical examiner, no such paper slips containing the signatures were found in it which leads to two inferences that either the sample packets have been tampered with or the samples packets which were sealed at the spot containing in paper slips were not sent for chemical examiner.
11. Law is well settled that it is the duty of the prosecution to prove beyond all reasonable doubt that the contraband articles which were sent for chemical analysis were the very articles which were seized from the possession of the accused persons and the entire path right from the point of seizure till its arrival before the chemical examiner has to be 34 travelled by adducing reliable and cogent evidence excluding any chance of tampering in the midway. In view of the aforesaid discussions, it appears that the safe custody of the contraband articles after its seizure is doubtful.
Regarding the contention of the learned counsels for the appellants that the investigation conducted by P.W.12 is per se illegal as he was the officer who conducted search and seizure, in case of Panchanan Das -Vrs.- State of Orissa reported in (2016) 65 Orissa Criminal Reports 702, it is held that in a case under 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 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.
I have already discussed that P.W.12 has not only tried to create evidence but also mentioned incorrect facts in the F.I.R. and other documents. There are several loopholes and 35 potholes in the investigation. Therefore, the conduct of investigation by P.W.12 has certainly caused prejudice to the appellants.
In view of the above discussion, when the investigation is perfunctory, there is non-compliance of provision under section 42 of the N.D.P.S. Act, the investigating officer has created documents to show the compliance of sections 42 and 57 of the N.D.P.S. Act, the safe custody of the contraband articles before its production with the chemical examiner is doubtful, it is a fit case where benefit of doubt should be extended in favour of the appellants.
12. Accordingly, the impugned judgment and order of conviction passed by the learned trial Court in convicting the appellants under sections 20(b)(ii)(C) of the N.D.P.S. Act and the appellant no. 1 Sanjaya Kumar Tiwari under sections 279/337 of the Indian Penal Code and sections 181/184/187/196 of the Motor Vehicle Act and the passing the sentence thereunder is hereby set aside.
The appellants who are in jail custody shall be released forthwith if their detention is otherwise not required in any other case.
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Lower Court records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action.
Accordingly, the Criminal appeal is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 16th November, 2017/Pravakar/Kabita