Orissa High Court
Prasanta Kumar Behera vs State Of Orissa on 4 March, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMINAL APPEAL NO. 210 OF 2010
From judgment and order dated 09.04.2010 passed by the
Additional Sessions Judge -cum- Special Judge under N.D.P.S.
Act, Khurda in T.R. Case No.45/13 of 2008.
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Prasanta Kumar Behera ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellant - Mr. Sangram Kumar Das
For Respondent - Mrs. Saswata Patnaik
Addl. Govt. Advocate
CRIMINAL APPEAL NO. 213 OF 2010
Dinabandhu Moharana ......... Appellant
-Versus-
State of Orissa .......... Respondent
For Appellant - Mr. Saroj Kumar Dash
For Respondent - Mrs. Saswata Patnaik
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
...................................................................................................
Date of Argument- 27.01.2016 Date of Judgment- 04.03.2016
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2
S. K. SAHOO, J.The appellants faced trial in the Court of learned Addl. Sessions Judge -cum- Special Judge under N.D.P.S. Act, Khurda in T.R. Case No. 45/13 of 2008 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter "N.D.P.S. Act") for illegal possession and transportation of 342 kgs. of ganja on 12.06.2008 at Balugaon on N.H.No.5 at about 6 p.m. to 6.15 p.m. in a TATA Safari Car bearing Registration No. OR-02-N- 1368 in contravention of the provisions of the N.D.P.S. Act.
The appellants were found guilty of the said charge and were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default, to undergo rigorous imprisonment for two years.
2. It is the prosecution case that on 12.06.2008 at about 1.00 to 1.30 p.m. while P.W.4 Pradipta Ranjan Pattnayak, Inspector-in-Charge, E.I & E.B., Unit-I, Cuttack was performing patrol duty with other Excise staff at Balugaon Bazar area and checking suspected vehicles indulged in transporting excisable articles, he deputed two of the Excise Constables namely Rudra Charan Mohapatra and Pradeep Kumar Behera to remain present at Railway level crossing situated outside Balugaon Bazar towards Berhampur to inform him over mobile phone about the 3 movement of suspected vehicles. According to the information of those two Excise Constables, P.W.4 checked two to three vehicles but could not find any excisable articles in those vehicles. At about 1.30 p.m., as per information received from the aforesaid Excise Constables, P.W.4 detained one white coloured TATA Safari bearing Registration No.OR-02-N-1368 on suspicion in front of Andhra Bank situated at Balugaon Bazar. P.W.4 directed the driver of the vehicle to open the door but he did not comply. P.W.4 requested two persons from among the crowd gathered namely Surendra Swain (P.W.1) and Tanuj Kumar Panda (P.W.2) to remain present for the purpose of search of the vehicle and both of them accepted the request of P.W.4., who again directed the driver of the vehicle to open the door and this time the driver opened the door and both the appellants were found inside the vehicle. Appellant Prasanta Kumar Behera was the driver of the vehicle and appellant Dinabandhu Moharana was the owner of the vehicle. P.W.4 found the smell of ganja emitting from inside the vehicle. P.W.4 gave his identity to both the appellants and expressed his intention to search the vehicle. He took personal search of both the appellants after giving notices to both of them under section 50 of the N.D.P.S. Act. Both the appellants agreed to be searched by P.W.4., who after observing all the formalities searched the 4 vehicle in presence of P.W.1 and P.W.2 and recovered seventeen gunny bags containing ganja. On weighment, out of the seventeen gunny bags, three gunny bags were found each containing 20 kgs. of ganja, two plastic gunny bags were also found each containing 20 kgs. of ganja, two gunny bags were found each containing 10 kgs. of ganja, two plastic gunny bags and one gunny bag were found each containing 16 kgs. of ganja, five gunny bags and one plastic gunny bag were found each containing 24 kgs. of ganja and one gunny bag was found containing 30 kgs. of ganja. P.W.4 seized the driving license of the appellant-driver and the documents of the vehicles along with the gunny bags containing ganja and prepared seizure list Ext.1/2. P.W.4 prepared a weighment chart vide Ext.6. Both the appellants also signed the seizure list. P.W.4 opened the gunny bags containing ganja and from the texture, smell and from his experience of twenty six years, he found that all the seventeen gunny bags were containing ganja. He sealed all the gunny bags containing ganja separately putting paper slips containing his signatures and that of the appellants and the witnesses. P.W.4 put his personal brass seal containing his specimen signature on each of the paper slips. The brass seal was handed over to P.W.1 under Zimanama Ext.5/1. P.W.4 made over the copies of the seizure list to the appellants who put their signatures 5 acknowledging the receipt of such copies. P.W.4 prepared sketch map vide Ext.4/2 in presence of the appellants and the witnesses. The statements of the appellants were also recorded separately. P.W.4 arrested both the appellants explaining them the grounds of arrest.
P.W.4 took the appellants, the vehicle and seized gunny bags containing ganja to Balugaon Police Station which is the nearest police station to the place of seizure. P.W.4 found only one Constable present in the police station who reported that the Inspector-in-charge and other police officers have left for duty. P.W.4 then brought the appellants, the vehicle along with gunny bags to Bhubaneswar for production before the District and Sessions Judge, Khurda at Bhubaneswar. On reaching at Bhubaneswar, P.W.4 found that the concerned Court was closed and therefore he came to Kharvel nagar police station and gave requisition to the I.I.C. of the said police station to keep the gunny bags in the police station Malkhana. The appellants and the vehicle were taken to the Headquarters at Cuttack as the IIC, Kharvel nagar police station did not agree to keep the appellants and the vehicle. On the next day i.e. on 13.06.2008, P.W.4 took the appellants and the vehicle from Cuttack to Kharvela nagar police station, received the gunny bags from the Malkhana-in-charge and found the seals were 6 intact. P.W.4 produced the appellants, seized articles and relevant documents before the learned District and Sessions Judge, Khurda at Bhubaneswar. P.W.4 made a prayer to the Court for collecting sample from each of the gunny bags for chemical examination. As per the direction of the learned District Judge, the gunny bags were produced before S.D.J.M, Bhubaneswar who collected samples from each gunny bag which was duly sealed by learned S.D.J.M., Bhubaneswar. The sealed sample packets along with requisition were produced by P.W.4 before the Chemical Examiner. The broken seals were kept inside an envelope which was also sealed with the seal impression of the S.D.J.M, Bhubaneswar.
The chemical examiner to Govt. of Orissa, S.D.T. & R.L., Bhubaneswar after analysis gave his opinion under Ext.11 that all the seventeen samples produced before him were found to be ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act. On the next day of seizure, P.W.4 intimated the Commissioner of Excise regarding the search, seizure and arrest of the appellants as required under section 57 of the N.D.P.S. Act. Since prima facie case under section 20(b)(ii)(C) of the N.D.P.S. Act was found against both the appellants, P.W.4 submitted prosecution report against them on 08.10.2008. 7
As the learned District and Sessions Judge, Khurda at Bhubaneswar found that the cause of action had taken place at Balugaon and Additional Sessions Judge -cum- Special Judge under N.D.P.S. Act, Khurda has been empowered to try the case, the case records were transferred to the said Court. On 30.03.2009 charge was framed against the appellants by the Trial Court under section 20(b)(ii)(C) of N.D.P.S. Act. The appellants refuted the charge, pleaded not guilty and claimed to be tried.
3. In order to prove its case, the prosecution examined four witnesses.
P.W.1 Surendra Swain and P.W.2 Tanuja Kumar Panda who were the independent witnesses did not support the prosecution case, for which they were declared hostile by the prosecution.
P.W.3 Sankarsan Behera was the ASI of Excise, E.I. & E.B., Unit-I, Cuttack who accompanied the Inspector of Excise to Balugaon on patrol duty and he stated about the detection of the vehicle and its search and also the seizure of seventeen bags of ganja from the possession of the appellants in the vehicle.
P.W.4. Pradipta Ranjan Pattnayak was the Inspector- in-charge, E.I. & E.B., Unit-I, Cuttack who detected gunny bags 8 carrying Ganja in the vehicle in which the two appellants were the occupants. He is the Investigating Officer of the case.
The prosecution exhibited fourteen documents and also proved two material objects.
Ext.1/2 is the seizure list, Ext.2/2 and Ext.3/2 are the notices served on the appellants Dinabandhu Moharana and appellant Prasanta Kumar Behera respectively under section 50 of the N.D.P.S. Act, Ext.4/2 is the rough sketch map, Ext.5/1 is the Zimanama, Ext.6 is weighment chart of gunny bags containing ganja, Ext.7 is the statement of appellant Dinabandhu Moharana, Ext.8 is the statement of appellant Prasanta Kumar Behera, Ext.9 is the requisition given by P.W.4 to IIC, Kharvel nagar police station, Ext.10 is the requisition of SDJM, Bhubaneswar to chemical examiner, S.D.T. & R.L, Ext.11 is the chemical examination report, Ext.12 is the requisition given by P.W.4 to R.T.O., Bhubaneswar, Ext.13 is the intimation received from R.T.O., Bhubaneswar and Ext.14 is the report submitted to the Commissioner of Excise in Form No. C/4.
The prosecution marked one envelope containing broken seals as M.O.I and one gunny bag containing ganja as M.O.II.
4. The defence plea of the appellants is that on the date of occurrence, both of them were returning from Berhampur and 9 they were at Balugaon petrol pump to fill up oil and at that time some persons who were in civil dresses came there and took their signatures in some blank papers and foisted a case against them.
One witness namely Pranab Kumar Panigrahi who was working as officer-in-charge of Balugaon Police station at the relevant point of time was examined as D.W.1 who stated that the station diary entry of the date of occurrence did not reveal that the excise people had come to the police station with contraband articles like ganja with any accused persons.
The defence exhibited the station diary entry of Balungaon Police station as Ext.A.
5. The learned Trial Court formulated the point for determination as to whether on 12.06.2008 at about 1.30 p.m, the appellants were transporting ganja (Cannabis) and seventeen gunny bags containing 342 kgs. of Ganja were recovered and seized from their possession.
The learned Trial Court held that even though P.W.1 and P.W.2, the two independent witnesses are not the local inhabitants of Balugaon at which place the contraband articles were seized, no prejudice has been caused to the accused persons because of non-compliance of provision under section 100 (4) of Cr.P.C. as those witnesses have not supported the 10 prosecution case regarding search and seizure. The learned Trial Court further held that the seizure list can be relied upon as corroborative evidence and nothing has been elicited from the cross examination of the two official witnesses i.e. P.W.3 and P.W.4 that they had deliberately lodged a false case against the appellants due to their previous enmity and therefore their evidence are worthy of credence which can be safely relied on. The learned Trial Court further held that there is no violation of section 52 of the N.D.P.S. Act and on that score, the accused persons are not entitled to an order of acquittal. The learned Trial Court further held that violation, if any of section 52 of the N.D.P.S. Act cannot be a bonus and on that score, the accused persons are not entitled to an order of acquittal and section 57 of the N.D.P.S. Act is directory and nothing has been brought out as to how the accused persons were prejudiced because of its non-compliance. The learned Trial Court further held that the evidence of P.W.3 and P.W.4 relating to search and seizure is found to be cogent, convincing and the same inspires confidence. It is further held that the non-examination of Excise Constables does not affect the credibility of the prosecution case. The learned Trial Court further held that the appellant Prasanta Kumar Behera was the driver and appellant Dinabhadnu Moharana was the owner of the vehicle which was transporting 11 huge quantity of ganja i.e., 342 kgs. and accordingly the appellants were convicted under section 20 (b)(ii)(C) of the N.D.P.S. Act.
6. Mr. Sangram Kumar Das, learned counsel appearing for appellant Prasanta Kumar Behera contended that the two material witnesses namely Rudra Mohapatra and Pradeep Kumar Behera on whose information the offending vehicle was detained and searched were not examined during trial. While conducting search, P.W.4 has not complied with the provisions laid down under section 100 (4) of the Criminal Procedure Code as he had not called two or more independent and respectable inhabitants of the locality to remain present when the offending vehicle was searched. It is further contended that section 52 (3) of the N.D.P.S. Act has not been complied with inasmuch as after the appellants were arrested, they were not forwarded to the Officer in-charge of Balugaon Police Station with the seized ganja. The learned counsel emphasized that the statement of P.W.4 that on the date of occurrence when they produced the appellants, the vehicle and the seized gunny bags in Balugaon Police Station, the Inspector in-charge and the other officers were absent is not correct in view of the statement of D.W.1, the Officer in-charge of Balugaon Police Station that the station diary did not reveal that the Excise people had come to the police station with 12 contraband articles like ganja and with the appellants. The learned counsel further emphasized that even though several police stations were there by the side of N.H. No.5 from Balugaon Police Station to Bhubaneswar but the contraband articles and the appellants were not produced in any of those police stations which create grave doubt regarding the actual place of seizure of the contraband articles. The learned counsel urged that neither the Officer in-charge of Kharavel nagar Police Station nor the Malkhana in-charge of that police station has been examined to substantiate that the contraband articles were kept in safe custody. The brass seal has not been produced by the witness who was given zima of such seal by P.W.4 at the time of production of contraband articles in Court for verification and therefore it cannot be said with certainty that the seal has not been tampered with or the articles which were produced in Court and sent for chemical examination were the very articles which were seized. The learned counsel contended that since the entire process of search, seizure and arrest appears to be suspicious and shrouded in mystery, benefit of doubt should be extended in favour of the appellant.
Mr. Saroj Kumar Dash, learned counsel appearing for appellant Dinabandhu Moharana contended that when P.W.4 had conducted search and seizure, he should not have investigated 13 the matter and submitted charge sheet and therefore investigation cannot be said to be impartial, unbiased and unmotivated. There were shops, petrol pump and bank nearer to the spot but none of the persons of the locality were made witness to the search and seizure on the other hand P.W.1 and P.W.2 who belonged to distance places have been cited as witnesses. He emphasized that the conduct of P.W.4 in keeping the contraband articles at Kharavel nagar Police Station, Bhubaneswar and taking the appellants and the vehicle to Cuttack is suspicious. The Malkhana register of Kharavel nagar Police Station should have been produced to substantiate that the contraband articles were kept in safe custody. The learned counsel further contended that the statement of P.W.4 that he sent the full report in compliance with section 57 of the N.D.P.S. Act to the Commissioner of Excise vide Ext.14 should not be accepted as the original was not seized from the office of the Commissioner. The learned counsel further submitted that when P.W.4 received the sample packets from S.D.J.M., Bhubaneswar on 13.6.2008, he should have produced it immediately before the chemical examiner and not on 17.6.2008 and since P.W.4 kept the sample packets with him for about four days without delivering to the chemical examiner, the possibility of tampering with the sample packets cannot be ruled out. While concluding 14 his argument, the learned counsel emphasized that the punishment being stringent in nature, it was the duty of the Investigating Officer to comply with the provisions of the N.D.P.S. Act in its letter and spirit and having not done so, benefit of doubt should be extended in favour of the appellants.
Mrs. Saswat Patnaik, learned Addl. Government Advocate on the other hand placed the relevant parts of the impugned judgment and contended that the learned Trial Court has dealt with all the aspects and it cannot be said that there is any illegality or infirmity in the impugned judgment and when the appellants were found transporting huge quantity of ganja in the vehicle which were seized by P.W.4 in presence of the official and independent witnesses, the same should be accepted and merely because independent witnesses did not support the prosecution case, that cannot be a ground to throw away the entire case in view of the settled position of law that in such type of cases the version of official witnesses can be acted upon to adjudicate the guilt of the accused.
7. Law is well settled that the provisions of sections 100 and 165 of the Code of Criminal Procedure, 1973 which are not inconsistent with the provisions of the N.D.P.S. Act are applicable for effecting search and seizure under the N.D.P.S. Act. 15
Section 165 Cr.P.C. deals with search by an officer in charge of a police station or by a police officer making an investigation into any offence which he is authorized to investigate. Sub-section (4) of section 165 of the Code states that the provisions of the Code as to search-warrants and the general provisions as to searches contained in section 100 of Cr.P.C. shall, so far as may be, apply to a search made under section 165 Cr.P.C. Sub-section (4) of section 100 of Cr.P.C. states that before making a search under Chapter-VII, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and the officer may issue an order in writing to such persons or any of them to be a witness to the search.
Even though sub-section (4) of section 100 Cr.P.C. states that such provision is applicable to Chapter-VIII but in view of sub-section (4) of section 165 of Cr.P.C., the procedure has to be followed in all cases of search by either the officer in charge of the police station or a police officer making an investigation into any offence which he is authorised to investigate. If any subordinate officer is entrusted by the officer 16 in charge to carry out such search by an order in writing, then such subordinate officer has also to follow the procedure laid down under section 100 Cr.P.C. Even though section 100 Cr.P.C. states about the search of a closed place but in view of definition of 'place' as per section 2 (p) of Cr.P.C., it includes a house, building, tent and vessel.
Contentions were raised by the learned counsel for the appellants that the independent witnesses P.W.1 and P.W.2 are not the inhabitants of the locality in which place the vehicle was detained and searched and there is also no evidence that they were respectable persons and therefore section 100(4) of the Cr.P.C. has not been followed. It is the further contentions of learned counsel for the appellants that P.W.1 has stated that his village is at a distance of 5 kms. away from Balugaon and similarly P.W.2 states that his village is at a distance of about 1 km. away from petrol pump at Balugaon. It was urged that when it was a market area and number of shops, bank and two petrol pumps were available in the locality, P.W.4 should have taken the assistance of the persons of the locality while conducting search and seizure and not cited two persons like P.W.1 and P.W.2 as witnesses who are neither of that locality nor they are respectable persons.
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Adverting to the contentions raised, it is found that the search and seizure were made on 12.6.2008 in the afternoon. The time and place was such that P.W.4 could have easily got independent and respectable persons of the locality as witnesses to the search and seizure. The location of the spot was at Balugaon market which was also nearer to bank and petrol pumps. P.W.4 states that he has not mentioned about the status of P.W.1 and P.W.2. There is no evidence that P.W.4 approached any independent inhabitants of the locality to be the witnesses but they refused or it was such an odd time that it was practically impossible for P.W.4 or his team to procure the attendance of independent and respectable inhabitants of the locality. There is also no evidence that nobody came forward to join the search party as witness.
The timing of search and seizure, non-availability of independent and respectable witnesses of the locality and non- inclination of such persons even though available to become witnesses to the search and seizure are the factors to be taken note of while assessing the non-compliance of sections 100 (4) and 165 (4) of Cr.P.C. If after making reasonable efforts, the police officer is not able to get public witnesses to associate with the raid or arrest of the accused, the arrest and the recovery made would not be necessarily vitiated.
18
If no such inhabitants of the locality were available or were willing to be witnesses to the search, then P.W.4 could have issued an order in writing to the persons of any other locality to attend and witness the search. Since there is no evidence that P.W.4 and his team made any effort/ attempt to get independent and respectable persons of the locality or that it was practically impossible to get such witnesses or that such witnesses even though present were not inclined to be the witnesses, I am of the view the I.O. has deliberately flouted the statutory provisions. An officer conducting search and seizure under N.D.P.S. Act is bound to follow the procedure envisaged under law and cannot act at his sweet will, whim and fancy.
Both the independent witnesses have not supported the prosecution case and they have been declared hostile by the prosecution. P.W.1 has stated that his signatures were obtained on blank papers near Hanuman Mandir which was situated at a distance of about 1 km. away from Andhra Bank, Balugaon Branch and he put his signatures being directed out of fear and he had not seen the accused persons when his signatures were taken. Similarly P.W.2 has stated that the contents of the papers which were written were not read over and explained to him before he was asked to sign and he did not voluntarily put his signature but on being compelled, he signed on the papers and 19 he was also threatened. P.W.1 is a cultivator and P.W.2 was having a hotel as per their statement. Therefore the evidence of these independent witnesses are no way helpful to the prosecution and accordingly those are to be discarded.
However it is the settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be a ground to discard the prosecution case in toto. On the other hand if the statements of the official witnesses relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence and determine whether the evidence of the Police Officer/Excise Officer is believable after taking due care and caution in evaluating their evidence.
8. It is the prosecution case that on the date of occurrence P.W.4 had deputed two excise constables namely, Rudra Charan Mohapatra and Pradip Kumar Behera to remain present at the railway level crossing situated outside Balugaon Town towards Berhampur to inform him over mobile phone about the movement of the suspected vehicles and that basing on their information, the offending vehicle was detained in front of Andhra Bank situated at Balugaon Bazar. P.W.4 stated that 20 after the vehicle was detained and ganja was found inside, he telephoned to the two excise constables who were deputed to perform duty near the Railway level crossing and they returned after getting information from him. However P.W.4 states that the documents exhibited in the case do not indicate that two of the excise constables were deputed to perform duty near Railway level crossing or that those two constables intimated over mobile phone to him. Those two excise constables who were the informers have not been examined as witnesses.
It is the case of P.W.4 that he received the phone call from the excise constables in between 1.00 p.m. to 1.30 p.m. and the railway level crossing would be at distance of about two and half kilometers from the place where they were performing patrol duty. In view of such distance between the two places i.e. the place where the two excise constables were posted to give information and the place where P.W.4 and other excise staffs were performing patrol duty, the statement of P.W.4 that the Tata Safari reached near Andhra Bank about 10 to 15 minutes after he received the telephone from the excise constables appears to be a suspicious feature.
P.W.4 has not stated that either he or any of his excise staff gave their personal search before conducting search of the vehicle.
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P.W.4 has stated that he made over the brass seal of the specimen impression which was put on the seal of the gunny bags to P.W.1 who executed a zimanama to that effect but P.W.1 has not supported such evidence. P.W.4 states that the zimadar himself did not write in his own hand that he received zima of the personal seal. The brass seal was not produced in Court on 13.6.2008 when the accused persons and seized articles were produced in Court which is evident from the order sheet. Handing over the brass seal to an independent, reliable and respectable person and asking him to produce it before the Court at the time of production of the seized articles in Court for verification are not the empty formalities or rituals but is a necessity to eliminate the chance of tampering with the articles.
Sub-section (3) of section 52 of the N.D.P.S. Act states that every person arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to the officer-in- charge of the nearest Police Station or the officer empowered under section 53 of the N.D.P.S. Act.
Once the seized articles are produced in the nearest police station, the Officer in charge of such police station has to follow the procedure laid down under section 55 of the N.D.P.S. Act. P.W.4 states that he took the appellants, the vehicle and the 22 seized gunny bags containing ganja to Balugaon Police Station but found one constable to be present in the Police Station who reported that IIC and other police officers had left for duty and therefore he brought the accused persons, the vehicle along with the gunny bags containing ganja to Bhubaneswar. In that respect the evidence of D.W.1 who was the Officer in-charge of Balugaon Police Station at the relevant time is very much important. D.W.1 has stated that from 9.30 a.m. of 12.06.2008 to 9.00 a.m. of 13.06.2008, Sri S.N. Purohit, A.S.I. of Police was in charge of the station diary but the station diary dated 12.06.2008 does not reveal that excise people had come to the police station with contraband articles like ganja and with any accused persons. He further stated that had any such instance of coming to the police station with ganja and accused persons was there, there would have been entry in the station diary entry Ext.A. Thus the evidence of P.W.4 regarding production of the appellant with the seized articles at the nearest police station to the spot i.e. Balugaon Police Station on the date of occurrence is not corroborated either by documentary evidence or by the evidence of D.W.1. P.W.4 has stated that Tangi Police Station, Jankia Police Station, Khandagiri Police Station, Nayapalli and Sahidnagar Police Station fall by the side of N.H.5 while coming from Balugaon to the Sessions Court at Bhubaneswar but the 23 appellants and the seized articles were not produced in any of those Police Stations and it was produced only at Kharvel Nagar Police Station. Thus the contentions raised by the learned counsels for the appellants that P.W.4 deliberately flouted the provisions under section 52(3) of the N.D.P.S. Act appear to have sufficient force.
In case of Gurbax Singh -Vrs.- State of Haryana reported in AIR 2001 SC 1002, it is held that it is true that provisions of Sections 52 and 57 of the N.D.P.S. Act are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In case of State of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283, it is held that the provisions of sections 52 and 57 of the N.D.P.S. Act which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 24
P.W.4 stated that the ganja found inside the bags were mixed with leaves, seeds and small branches but he has not noted the percentage of seeds, leaves and branches of the seized ganja. In view of definition of "ganja" under section 2(iii)(b), the seeds and leaves when those were not accompanied by the tops should have been excluded. Even though the same was not done in this case before taking the weight but in view of the huge quantity of ganja seized in this case, it would not create much difference for assessing the 'commercial quantity.' Even though P.W.4 stated to have handed over the gunny bags containing ganja to the Inspector-in-Charge of Kharavel Nagar Police Station and the Malkhana in-charge of Kharavel Nagar Police Station received the gunny bags as per the direction of the Inspector-in-Charge on the date of occurrence and kept it till next day when P.W.4 again received the same back but neither the Inspector-in-Charge nor Malkhana in-charge of Kharavel Nagar Police Station has been examined nor the Malkhana register has been seized and produced in Court to substantiate the prosecution case that the seized ganja was kept in safe custody after seizure till it was produced before the Court. In case of Sinic Patricia -Vrs.- State reported in (1994) 7 Orissa Criminal Reports 277, it is held that it is for the prosecution to establish and cover the entire path by 25 adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets during the retention of those packets at the police station and the seized articles were very articles produced before the Magistrate for sending them to the Chemical Examination.
P.W.4 is the Officer who conducted search and seizure and he also investigated the matter and submitted prosecution report finding prima facie case against the appellants. In case of State by Inspector of Police -Vrs.- Rajangam reported in (2010) 15 Supreme Court Cases 369, it is held as follows:-
"8. The short question which falls for consideration of this Court is whether P.W.6 who registered the crime could have investigated the case or an independent officer ought to have investigated the case.
9. The learned Counsel appearing for the accused submitted that the controversy involved in this case is no longer res integra. In Megna Singh v. State of Haryana 1995 CriLJ 3988 , this Court has taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under:
4. ...We have also noted another disturbing feature in this case. P.W.3, Sri Chand, Head Constable arrested the accused and on 26 search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.
10. The ratio of Megna's case has been followed by other cases.
11. In another case in Balasundaran v. State 1999 (113) ELT 785 (Mad), the Madras High Court took the same view. The relevant portion reads as under:
16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case.
P.W. 5 was the person who had searched the appellants in question and he being the 27 investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated.
12. In this view of the legal position, as crystallized in Megna Singh's case (supra), the High Court was justified in acquitting the accused."
In view of the principle decided by the Hon'ble Supreme Court in case of Rajangam (supra) case, P.W.4 should not have investigated the case as he conducted search and seizure of the contraband articles.
The contentions were raised by the learned counsels for the appellants that even though the samples were handed over to P.W.4 on 13.06.2008 by the Court but P.W.4 kept the samples with him and produced it at the S.D.T & R.L. on 17.06.2008 and therefore the chance of tampering with the same cannot be ruled out. P.W.4 has stated that the samples were handed over to him in the evening hours on 13.06.2008 and thereafter there were three Government Holidays for which he kept the samples with him and produced it on 17.06.2008 at the S.D.T. & R.L. The samples were received at the S.D.T. & R.L. on 17.06.2008 and the seals on the sample cartoon and seventeen numbers of sample envelopes were found intact and 28 identical with the specimen impression of the seal given on the forwarding memo. Therefore, the submissions of the learned counsels for the appellants which is based on surmises and conjectures cannot be accepted.
The contentions were raised by the learned counsels for the appellants regarding non-seizure of original of Ext.14 which was the full report in compliance of section 57 of the N.D.P.S. Act. P.W.4 has stated that on the next day of seizure, he intimated the Commissioner of Excise in Form No.C-4 regarding the search, seizure and arrest of the appellants in connection with the case as required under section 57 of the N.D.P.S. Act. Any arrest or seizure made under the N.D.P.S. Act has to be reported to the immediate official superior of the person making such arrest or seizure within forty-eight hours and a full report indicating all the particulars of arrest or seizure is envisaged under section 57 of the N.D.P.S. Act. Such a report is the safeguard to prevent any concoction or fabrication regarding arrest or seizure at a later stage. This is one of the external checks which not only protects the interest of the accused but also put forth before the Court the initial case of the prosecution.
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On perusal of Ext.14 which is in Form No.C-4, it indicates that in the column No.5, 6, 7 and 8 where name and address of the witness, points to prove, whether personally detected or on information and order of superior officer are required to be mentioned here have not been filled up. Similarly on the reverse side of C-4 where date and hour of submission of report, explanation of delay, if any in submission, date of receipt of the report in Excise Superintendent's office and brief history of the case are required to be mentioned and date have been left blank. No endorsement of Excise Commissioner regarding receipt of the report and date is available in Form No.C-4. Nobody has been examined from the office of Commissioner of Excise to prove the receipt of such report. The copy of the report which was sent to the Office of Commissioner of Excise has not been seized.
Thus I am of the view that Ext.14 is not a full report as envisaged under section 57 of the N.D.P.S. Act and a reasonable doubt is created regarding submission of such report in the office of Commissioner of Excise.
9. In view of the glaring inconsistencies in the evidence of prosecution witnesses, non-compliance of provisions under section 100(4) of Cr.P.C., sections 52 (3) and 57 of the N.D.P.S. 30 Act, absence of any clinching materials that the seized articles were kept in safe custody till its production in the Court, non- examination of relevant witnesses, non-production of brass seal in Court and other suspicious features as discussed above, I am of the view that it would be very risky to uphold the impugned judgment and order of conviction.
10. Accordingly, Criminal Appeal No. 210 of 2010 filed by appellant Prasanta Kumar Behera and Criminal Appeal No. 213 of 2010 filed by appellant Dinabandhu Moharana are allowed. The impugned judgment and order of conviction and sentence passed by the learned Trial Court is hereby set aside and the appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellants who are in jail custody shall be released forthwith if their detention is otherwise 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 and necessary action.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 4th March, 2016/Pravakar