Orissa High Court
Surendranath Mohanty And Anr. vs State Of Orissa [Alongwith Criminal ... on 18 June, 1996
Equivalent citations: 1997(1)ALT(CRI)3, 1996(II)OLR56
JUDGMENT R.K. Patra, J.
1. In Criminal. Appeal No. 212 of -1991 Surendranath Mohanty and Prasanna Kumar Mohanty are the two appellants. Criminal Appeal No. 227 of 1991 is at the instance of Taraprasad Mohanty. All the three appellants stand convicted under Section 21 of the Narcotic Drugs and Psvchotropric Substances- Act, 1985 ('NDPS Act'). Each of them has been sentenced to uncargo rigorous imorisonment for 10 years and pay fine of rupees one lac each, in default to undergo rigorous imprisonment for six months. As both the appeals arise out of same Judgment of the learned Sessions Judge, Puri in S.T. No. 290 of 1991, they were heard together and are disposed of by this Judgment.
2. Appellant Surendranath is the father of appellant Prasanna Kumar. Appellant Taraprasad is said to be distantly related to them. Appellant Surendranath stood charged under Section 21 of the NDPS Act for being in illegal possession of 31/2 grams of heroin and cash of Rs. 2828- supposed to be the sale proceeds of the narcotic drugs. Appellants Prasanna Kumar similarly stood charged under Section 21 of the NDPS Act for being in illegal possession of 460 grams of Charas and 11/2 grams of heroin and cash of Rs. 111/- supposed to be the sale proceeds of the narcotic drugs. Appellant Taraprasad also stood charged under Section 21 of the NDPS Act for being in illegal possession of 4 grams of heroin. Along with the afforesaid appellants, Golap Manjari, wife of appellant Surendranath, was charged under Section 25 of the NDPS Act for having knowingly permitted her house to be used for commission of offences punishable under the provision of the NDPS Act. The learned Sessions Judge while acquitting Golap Manjari of the ch3rge, has convicted the appellants as mentioned above.
3. The prosecution case is that on 7-4-1990 at about 7.30 a.m. there was an excise patrolling in Puri town. Pramod Kumar Mohanty (PW 6) being the Excise Sub-Inspector, Puri Sadar was in charge of the patrolling squad. Hrudananda Naik, Deputy Superintendent of Excise, Puri (PW 4) and Binod Kumar Panda, Executive Magistrate PW. 5 were also amongst others in the patrolling squad. PW6 at that time received reliable information to the effect that drug trafficking was going on in the house of appellant Surendranath at Daitapada Sahi, Puri. PW 6 accordingly reported this fact to his superior officer PW 4, the Deputy Superintendent of Excise and on his direction the raiding party proceeded to the spot. On arrival at the house of appellant Surendranath, Lokanath Mohapatra (PW 1) and Jogendra Naik (PW 3) were called as witnesses to the raid. At that time appellant Surendranath was found standing in front of his house. After giving personal search of the witnesses and the officers, the person of appellant Surendranath was searched. But nothing incriminating was recovered from his possession. The raiding party thereafter entered inside the house. The first room was the 'Thakur Ghar' and nothing objectionable was found in that room. The second room was used by the appellant Surendranath as his office (he was working as a Moharrir (Clerk) of an Advocate of the local Bar). In that room the trunk (M.O. II) was found. As it was locked, on being asked appellant Surendanath produced the keywhich he brought out from his shirt pocket. With the help of the said key the trunk was opened from which one paper bag containing 31/2 grams of heroin, G.C. notes and coins amounting to Rs. 2828/- kept in a bag, one small "petal Nikiti"were recovered. Nothing incriminating material was recovered from Room Nos. 3 and 4. In the 5th room appellant Prasanna Kumar was sleeping a cot with his left leg bandaged. From the pillow of the bed a foam bag (M. O. Ill) was recovered. In that bag following articles were found :
(1) two cakes of brown sugar (M. Os. V and Vl) one weighing 250 grams and the other 210 grams;
(2) one paper bag containing 1 1/2 grams of heroin (M. Os. XIX):
(3) one "pitala nikiti" with three batakaras.
Appellant Taraprasad was found in the 6th room. On his personal search, a paper packet containing 4 grams of brown sugar was recovered from his waist. All the articles recovered from different rooms were collected at the court yard and seizure list (Ext. 1) was prepared and after complying with the necessary formalities, the appellants were arrested. Samples from the seized contraband articles were sent for chemical examination and after receipt of the report from the Chemical Examiner the appellants were prosecuted which has ended in their conviction.
4. The plea of the appellants was substantially one of denial. Appellant Taraprasad in his statement recorded under Section 313, Cr PC stated that he had been to the house of appellant Surendranath to pay clerk's fees in connection with bail matter in G. R. Case No. 217 of 1989 in which he himself was involved as accused.
5. The prosecution examined six witnesses to prove the charges. PWs 1 and 3 are the witnesses to the search and seizure. Excise constable (PW 2), Deputy Superintendent of Excise (PW 4) and Executive Magistrate (PW 5) have also stated about the search and seizure. PW 6 is the complainant and Excise Sub-Inspector. On consideration of the evidence, the learned Sessions Judge found the appellants guilt/ under Section 21 of the NDPS Act and convicted them thereunder
6. Learned counsel raised the following contentions in assailing the conviction of the appellants;
(i) Prior information having been not taken down in writing by PW 6. there was non-complinance of mandatory provisions of Section 42 (1) and (2) of the NDPS Act on account of which the trial is vitiated;
(ii) The evidence adduced by the prosecution with regard to search and seizure is wholly discrepant; and
(iii) There is non-compliance of provisions of Section 50 of the NDPS Act with regard to the appellant Taraprasad for which his conviction is illegal.
7. Before considering the contentions raised or behalf of the appellants, I may indicate that as per Ext. 5 report of the Chemical Examiner. samples which were sent for chemical examination were found to be brown suger (diamorphine) and charas, as defined under the relevant provisions of the NDPS Act.
Let me now first consider contention No. (i). It was submitted that PW 6 received information to the effect that drug trafficking was going on in the house of appellant Surendranath and such information was mandatorily required to be taken down in writing and a copy thereof was to be sent forthwith to the superior officer and PW 6 having not done so there is non-compliance of provisions of Section 42 (1) and (2) of the NOPS Act and, as such, the trial is vitiated. In State of Punjab v. Balbir Singh ; AIR 1994 SC 1872, the Supreme Court held inter alia that under Section 42(1) of the NDPS Act the empowered officer if has prior information given by any person that should necessarily be taken down in writing and compliance of this provision is mandatory and contravention of the same would affect the prosecution case and vitiate the trial. It has also been held that under Section 42(2) such empowered officer who takes down any information in writing should forthwith send a copy thereof to his immediate superior official and if there is total non-compliance of this provision, it affects the prosecution case. The clear and categorical Prosecution case is that PW 6, the Sub-Inspector of Excise, while on patrol duty on 7-4-1990 at about 7.30 a. m. received reliable information that drug trafficking was going on in the house of appellant Surendranath at Daitapada Sahi, Puri and on that basis raiding party proceeded to the spot. In the prosecution report submitted before the Sub-divisional Judicial Magistrate, Puri. PW 6 stated as follows :
"On 7-4-1990, while I was patrolling in Puri Town with Dy. Supdt. of Excise, my staff and Mobile staff with the active help of Executive Magistrate and AIR force at about 7.30 a. m. my spy at market chhak informad me regarding sale of Brown Sugar and Charas by the accused persons in the residential house of accused Surendranath Mohanty at Daitapada Sahi.
Then I reported the fact to my superior officer, Dy. Supdt. of Excise and as per his direction I immediately proceeded to the spot and raided the alleged house with DSP and staff."
In his evidence PW 6 stated that on the date of occurrence at about 7.30 a. m. while he was patrolling market chhak area along with the Deputy Superintendent of Excise, his staff. Executive Magistrate and AIR force received reliable information regarding sale of brown suger and charas in the house of appellant Surendranath at Daitapada Sahi, Puri. The Deputy Superintendent of Excise who was examined as PW 4 also stated that at the market crossing PW 6 received information that brown sugar was being sold in the house of the accused persons and he conveyed the information to him (PW 4). In the cross-examination, the Sub-Inspector of Excise (PW 6) admitted that he did not reduce the information received with regard to drug trafficking in the house of appellant Surendranath into writing, but orally informed this fact to the Deputy Superintendent of Excise. He further stated that after detection he informed his immediate authority about the matter but copy of the report sent to his immediate authority was not there in the case diary. PW 4 the Deputy Superintendent of Excise admitted in his evidence that PW 6 received secret information about clandestine drug trafficking by the accused persons in their house and he (PW 6) did not reduce the information received by him into writing in his, presence.
On careful consideration of the evidence of PWs 4 and 6 I have no hesitation to hold that PW 6 did not reduce the information received by him into writing. Had he done so, a copy of the writing would have been found in his case diary and Anr. copy would have been found with his immediate superior as he was obliged to send a copy of such writing to his superior officer as required under Section 42(2) of the NDPS Act. The present is not a case that PW 6 without prior information made search and during such search he stumbled on a chance recovery of narcotic drugs from the appellants. As already indicated, the clear and categorical case of the prosecution is that PW 6 received confidential information that drug trafficking was going on in the house of appellant Surendranath and on the basis of such information raid was conducted and in course of search, the contraband articles were recovered. PW 6 having not reduced the Information received by him into writing, which he was mandatorily required to do, there is noncompliance of Section 42(1) of the NDPS Act. There is also non-compliance of Section 42(2) of the NDPS Act in that copy of the recording of the information was not sent to his immediate official superior. There is thus non-compliance of the provisions of Section 42 (1) and (2) of the NDPS Act, This is definitely fatal to the presecution.
In this connection I may profitably refer to the Judgment of the Supreme Court in Mohinder Kumar v. The State, Panaji, Goa : AIR 1995 SC 1157. In that case, the Court found that the mandatory requirements of the proviso of Section 42(1) and Section 42(2) of the NDPS Act had not been adhered to and on that ground the conviction of the accused was set aside.
8. There is also substance in the second contention of the appellants that there is discrepancy in the evidence with regard to search, seizure and sealing of the contraband articles. Appellant Surendranath has been convicted because of recovery of heroin from the trunk found in the second room. It is the evidence of PW 6 that Surendranath on being asked produced the key of the lock of the trunk by bringing out the same from his shirt pocket. PW 4, the Deputy Superintendent of Excise, deposed that personal search of appellant Surendranath was made at the front door but nothing was recovered from his person. PW 5, the Executive Magistrate was also present at the spot, stated that before entering into the house personal search of appellant Surendranath was done and at that time he was wearing dhoti and shirt and no incriminating article was found from his person. PW 5 further admitted that he did not know wherefrom appellant Surendranath produced the key (MO XVI) with which1 the lock of the trunk was opened. PW 6 himself in his evidence admitted that when personal search of appellant Surendranath was done no incriminating article was recovered from his person. In his cross-examination. PW 6 admitted that when he first made search of the person of appellant Surendranath the key MO XVI was found in his pocket but it was not seized then and there. In view of such inconsistency and contradictory statements in the evidence of PWs 4, 5 and 6, the prosecution story that appellant Surendranath handed over the key to PW 6 by bringing out the same from his own shirt pocket cannot be accepted. Prosecution story becomes further murky if the evidence regarding seizure of lock and key is considered and analysed. PW 1. the seizure witness, in his cross-examination admitted that he cannot say as to what happened to the lock and key of the box and he cannot say if the original lock with which the box was locked was seized or not. In his further cross-examination, he admitted that In the seizure list there is no mention that the lock and key were seized. PW 2, the Excise Constable, who was present at the time of search and seizure stated that the box was sealed without it being locked but the lock and key were not seized. PW 4 the Deputy Superintendent of Excise, stated that there is no mention in the seizure list that lock and key were seized.
So far as the evidence regarding sealing of the contraband articles is concerned, it is equally unworthy of credence. According to the seizure witness PW 1. weighing and sealing of the articles took place 'there' meaning thereby in the respective rooms. The Excise Constable PW 2 stated that the box was sealed without being locked. The second seizure witness PW 3 stated that no paper slip was attached on the trunk but paper slip was attached to the lock which was sealed and the paper slip which was found attached in Court was not that paper slip which was attached at the time of sealing. In his cross-examination, PW 3 further stated that the articles seized were packed in brown papers and their signatures were not taken on the brown papers but were taken on white paper slips which were pasted on the seals. According to his admission in Court, there was no impression of the seals in the paper seal, Ext. 3/4 but 'lac' seal impression was given by its side. PW 4, the Deputy Superintendent of Excise, stated that nothing was written on the original paper packets with which the narcotic drugs were found wrapped but those articles along with the original wrappers were packed with papers and thereafter the paper slips were pasted and sealed. He further stated that those articles were not tied with any rope or thread. Contrary to this evidence, PW 6 stated that the seized articles were first wrapped with papers and tied with threads and on one side wax seals were put and on the other side paper slips were pasted and no seal was put on the paper slips. According to the prosecution the raid was conducted and seizure of incriminating articles was done on 7-4-1990. PW 6 stated that he forwarded the appellants to Court along with the seized articles on the next day (8-4-1990). As the Malkhana Clerk was absent on that day, the Sub-divisional Judicial Magistrate directed him to produce the seized articles on 9-4-1990. When the seized articles were produced by him on 9-4-1990, the Malkhana Clerk refused to receive the same. He brought this fact to the notice of the SDJM who directed him to produce the same on 11-4-1990. On that day, the seized articles were produced and samples were taken out for the purpose of chemical examination. PW 6, however, does not state as to where did he keep the contraband articles from 7-4-1990 till they were produced before the SDJM on 11-4-1990. It was for him to satisfactorily explain that the contraband articles were in safe custody during the entire period. In absence of any explanation by PW 6 in this regard and in view of the unsatisfactory evidence with regard to search, seizure and sealing, it is difficult to accept the prosecution case as presented by it.
Conviction of appellant Prasanna is based on recovery of contraband articles from a foam bag kept under the pillow of the bed in the 5th room of the house. It is the evidence of PW 6 that at the time of raid, the said appellant was sleeping on a cot with his left leg being bandaged. There is no evidence on record to indicate that the 5th room was in the exclusive possession of this appellant. In absence of any such evidence, it cannot be conclusively held that appellant Prasanna was in exclusive and conscious possession of the contraband articles which were recovered from the foam bag.
9. The last contention is with regard to non-compliance of the mandatory provisions of Section 50(1) of the NOPS Act relating to appellants Prasanna Kumar and Taraprasad. It is now well-settled that under Section 50(1) of the NDFS Act, the empowered officer is obliged to inform the person to be searched of his right if he so requires to be searched before the nearest Gazetted Officer or the nearest Magistrate and non-compliance of such mandatory provision would affect prosecution case. It is also equally well settled that burden is on the prosecution to prove due compliance of the aforesaid provision and there is no question of presuming that such requiremant of Section 50(1) of the NDPS Act was complied with. PW6 stated in his evidence that appellant Prasana Kumar and Raraprasad were asked if they wanted to be searched in presence of the nearest Gazetted Officer or the nearest Magistrate to which appellant Prasanna Kumar stated that he might be searched by the excise staff whereas appellant Taraprasad refused to be searched. The Deputy Superintendent of Excise, PW 4 who was present during the entire operation has not corroborated PW 6 in this regard. Similarly, the seizure witnesses PWs 1 and 3 the Excise Constable PW 4 and the Executive Magistrate, PW 5, have not breathed a word that PW 6 asked the appellants Prasanna Kumar and Taraprasad if they wanted to be searched in presence of the nearest Gazetted Officer or the nearest Magistrate. Had PW 6 complied with Section 50(1) of the NDPS Act. he would not have failed to mention the same in the prosecution report which was filed before the Sub-divisional Judicial Magistrate, Puri on 7-8-1990. In the report, PW has stated as follows:
'"... I recovered from the conscious possession; of the accused persons the incriminating articles as per the seizure list prepared on the spot in the presence of. search witnesses and accused persons. I seized the contraband articles after taking the weighment and test by smell, colour, texture and from my long departmental experience that the articles seized are Brown Sugar and Charas.' I sealed the seized articles, separately with my personal seal by wax and paper seal having, the signature of accused persons and the seizure witnesses in whose presence the search, recovery, seizure, test, weighment and seal was made on the spot. By my direction and dictation. Excise Constable Sri Prahallad Swain prepared the seizure list on the spot which was read over out and explained to the witnesses and the accused who signed it. I immediately informed the accused persons, the cause of their arrest and arrested all the three accused persons under Section 20(b)(ii) and 21 of NDPS Act, 1985 and kept them under custody on 7-4-1990......"
Compliance of Section ,50(1) of the NDPS Act being mandatory, he could not have failed to mention such an important aspect in the report which was filed four months after the search. . In view. of. what has been stated above, I am, not inclined to accept the uncorroborated statement of PW 6 that he asked the appellants Prasanna Kumar and Taraprasad if they wanted to be searched before the nearest Gazetted Officer or the nearest Magistrate. There is thus non-compliance of the mandatory provision of Section 50(1) of the NDPS Act which has affected the prosecution case. This is an additional ground to void the conviction of appellants Prasanna Kumar and Taraprasad.
10. For all the aforesaid reasons, the conviction and sentence of the appellants cannot be sustained in law which are hereby set aside. As a consequence, the appellants are acquitted of the charges. They may be set at liberty forthwith if their detention is not required in connection with any other case.
11. In the result, both the appeals are allowed.