Orissa High Court
Radha Krishana Singhari And Ors. vs State Of Orissa on 21 February, 1995
Equivalent citations: 1995CRILJ3083
ORDER D.M. Patnaik, J.
1. In the above two appeals the appellants challenge their conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short 'the Act') and sentence of R.I. for 10 years and fine of Rs. 1,00,000/- each in default to undergo R.I. for one year.
2. Prosecution case is, on 5-3-1993 at 7-00 P.M. P.W. 1 Officer-in-charge of Puri Town Police Station after receiving intelligence report that the appellants were trafficking in narcotic substances, made a station diary entry to that effect and proceeded with the raiding party to Condua Chaura crossing. At a distance from the Chandini (Mandap) near the crossing they found these appellants with some others on the Monday. Seeing the raiding party, some of them escaped from that place where these two appellants were caught red-handed. On search in presence of the D.S.P., P.W. 1 recovered two polythene packets each containing 260 m.gs. of heroin from the possession of each of the appellants. After recovery he seized and sealed the same in presence of the witnesses. Prosecution having been lodged, the appellants faced their trial and were convicted as stated above.
The appellants denied the indictment.
3. Learned Additional Sessions Judge being satisfied with the truthful version of the prosecution witnesses held that the above quantity of heroin was in fact recovered from their possession.
Though Mr. R. K. Mishra, learned counsel for the appellants raised several contentions touching the illegality in the seizure, non-compliance with the mandatory provisions Under Sections 41,42, 50, 51 and 52 of the Act and absence of total evidence with regard to the custody of the substance seized and inconsistency in the evidence relating to sealing of the packets, the main thrust of his argument is with regard to non-compliance of the mandatory provisions of the Act which vitiated the trial.
Mr. D. Das, learned Additional Government Advocate, on the other hand, supported the judgment of conviction and sentence by submitting that the court below did not commit any mistake/error in finding that in fact the above quantity of Heroin was seized from the person of the appellants.
4. The trial Court in para 8 of the judgment held that the I.O. admitted in his evidence that he had neither mentioned in the case diary nor in the seizure list that the two appellants were given the option to be searched before the Gazetted Officer or the Magistrate. Mr. Mishra was critical that in view of this material omission in not mentioning that the 1.0. had complied with the mandatory provisions of the Act in searching the person of the appellants, it must be held that in fact no such offer was at all made. There is great force in the contention. When the law prescribes stringent procedure for compliance in case of such serious nature of offence, it is always obligatory on the part of the investigating agency to strictly comply with the mandatory provisions so as to enable itself to prove the prosecution case to the hilt. It should always be necessary for them to keep contemporaneous record in writing the nature of compliance made while effecting search and seizure. This having been admittedly not done, it can be legtimately held that there was no offer either partial or whole.
However, assuming that such an offer was made, it is found from the evidence of the witnesses particularly the I.O. (P.W. l) and P.W. 4 that the appellants were only given option to be searched before a Gazetted Officer and the offer for being searched in presence of the Magistrate is conspicuously found to be absent. This being a partial offer is found to be rather non-compliance of the mandatory provisions of Section 50 of the Act as has been held by this Court in case of Gopal Reddy v. State reported in 1994 (VII) OCR 920. The contention of the learned counsel for the State that this also amounts to sufficient compliance cannot be accepted in view of the above decision and the reason given above.
5. The trial court observed and held that in fact when the appellants were searched in presence of the D.S.P., there was no prejudice caused and therefore, the search cannot be held to be illegal. This is totally against the principle laid down by the apex Court in the case of State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299 wherein it has been held that non-compliance with the mandatory provisions of Section 50 by an empowered police officer would vitiate the trial. This has also happened in the present case.
6. As a corollary to this, it may be pointed out that the D.S.P. Sri Narasingh Panda in whose presence the appellants were searched was none also other than a member of the raiding party, as has been admitted by P.Ws. 1 and 4 in their evidence. This Court in the case of Rijay Kumar Subudhi v. State of Orissa (Criminal Appeal No. 239 of 1991 decided on 27-1-1995) has held that it is no compliance of the mandatory provisions of the Act to get the accused persons searched in presence Of a police officer though gazetted, who happens to be a member of the raiding party. This is also an additional feature to hold that the search of the appellants in question was nor permissible under law in the manner so conducted.
7. The other important feature highlighted by Mr. Mishra is with regard to dealing of the packets in question.
It is found from the evidence of P.Ws. 1 and 2 vide paras 3 and 7 respectively that the sealing of the packets were done at the spot, whereas the evidence of P.W. 6 in para 3 clearly indicates that such sealing was done at the P.S. Thus the sealing being an important part of the investigation, should have been absolutely area from any suspicion and there should have been consistent and satisfactory proof that in fact the substances in question were properly sealed so as to wipe out say doubt in the mind of the Court about the same being tampered with at any stage of the investigation and even subsequent to that. The inconsistency in the evidence of P.Ws. 1 and 2 on one hand and that of P.W. 4 on the other, empty costs a doubt in the mind of the Court that there was no proper sealing and custody of the substances in question. It was incumbent on the part of the trial Judge to give a finding with regard to this aspect of this case which he has set done. The possibility of the substance being tampered with in such case could not have been ruled out.
8. For the reasons aforesaid, the conviction and sentence passed against the appellants cannot be maintained and therefore the same are set aside. The appellants be set at liberty forthwith.