Orissa High Court
Kumar Chandra Sitha vs State Of Orissa on 23 August, 2024
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA NO.52 of 1994
(An appeal U/S.374(2) of the Code of Criminal
Procedure, 1973 against the judgment passed by Shri
N.K. Rajguru Mohapatra, 1st Additional Sessions Judge,
Puri Camp at Nayagarh in S.T. Case No.57/331 of 1993
arising out of Nayagarh P.S. Case No.32 of 1993 of the
Court of S.D.J.M., Nayagarh).
Kumar Chandra Sitha .... Appellant
-versus-
State of Orissa .... Respondent
For Appellants : Mr. B.P. Dhal, Amicus Curiae
For Respondent : Mr. T.K. Praharaj, SC
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:23.08.2024(ORAL)
G. Satapathy, J.
1. This appeal U/S.374(2) of the Code of Criminal Procedure, 1973 (in short, "the Code") is directed against the judgment dated 16.12.1993 passed by the learned 1st Additional Sessions Judge, Puri, Camp at Nayagarh in S.T. Case No.57/331 of CRA No.52 of 1994 Page 1 of 18 1993 convicting the appellant for offence Under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, "the Act") and sentencing him to undergo Rigorous Imprisonment (R.I.) for five year and to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand) only in default whereof, to undergo R.I. for a further period of one year with a stipulation setting off the pre-trial detention against the substantive sentence.
2. The prosecution case in precise is on 24.02.1993 at about 7.15 P.M., the O.I.C., Nayagarh Police Station P.W.6-Preyaranjan Patra on receipt of a credible information about a person carrying Contraband Ganja in a Bullet Motorcycle bearing Regd. No.TN-45-Z-1630 from Sarankul side towards Nayagarh, proceeded to the spot along with A.S.I. P.W.5-Narasingh Bhola in the Police Jeep being driven by one Jabar Mahammad and on their way, near Odagaon crossing, they stopped the above motor cycle at 7.30 P.M. while the appellant was coming riding the CRA No.52 of 1994 Page 2 of 18 said motor cycle along with two pillion riders carrying a polythene bag containing Contraband Ganja. The moment the motorcycle was stopped, the two pillion riders suddenly got down from the motor cycle and fled away into nearby dark area and despite hot chase by P.W.5, the pillion riders could not be caught hold of. However, the appellant was detained along with the Contraband Ganja which was weighed at the spot and found to be 10Kgs and thereafter, P.W.6 drew plain paper F.I.R. vide Ext. 2 at the spot and sent the same to Police Station for registration of the case paving the way for registration of Nayagarh P.S. Case No.32 of 1993.
Further, P.W.6 seized the motorcycle and Contraband Ganja in presence of witness as well as arrested the accused-appellant and forwarded him so also made prayer to the Court for drawing of sample. Accordingly, learned S.D.J.M., Nayagarh drew the sample from the bag containing Contraband Ganja and resealed the same. On completion of investigation, CRA No.52 of 1994 Page 3 of 18 charge sheet was placed against the accused-appellant resulting in trial in the present case after denial of the accused to plead guilty to the charge for offence U/S. 20(b)(i) of the Act.
2.1 In support of its case, the prosecution examined altogether six witnesses vide PWs. 1 to 6; proved eight documents vide Exts. 1 to 8 and identified Ganja bag as material object under MO-I as against the sole documentary evidence of the certified copy of the order sheet dated 25.02.1993 in G.R. No.16 of 1993 under Ext.A by the defence. Of the witnesses examined, PWs. 1 to 4 are private independent witnesses, but they have not supported the prosecution case in any manner, however, PW5 and the IO PW6 are the two police officials associated with search, seizure and detection of the case.
2.2. The plea of the convict-appellant was not only complete denial, but also false implication in addition to the specific plea which was stated by him in his statement U/S. 313 of CrPC that he had given free CRA No.52 of 1994 Page 4 of 18 lift to the pillion riders without knowing them to be carrying any Contraband article in the bag and he was thereby ignorant about transportation of Contraband Ganja in his motor cycle.
2.3. After appreciating the evidence upon hearing the parties, the learned trial Court convicted the appellant by mainly relying upon the evidence of PWs. 5 and 6.
3. In assailing the impugned order, Mr. Biswa Prakash Dhal, learned counsel engaged by the Court to conduct this appeal has very strenuously argued that not only there is non-compliance of the mandatory provisions of the Act, but also the oral evidence does not inspire confidence to record a conviction against the appellant. He further submits by referring to the evidence of the A.S.I. and the O.I.C., who are being examined as P.Ws. 5 and 6 respectively that it is the consistent case of the prosecution that the Contraband Ganja recovered when the motorcycle being driven by the appellant was detained at the spot, but the CRA No.52 of 1994 Page 5 of 18 admitted facts remain that two of the pillion riders ran away from the spot and the defence plea which was established to the effect that the pillion riders were being given free lift by the appellant, who does not know them and thereby, on the very score of oral evidence, the prosecution was unable to establish the guilt of the appellant for transporting any Contraband Ganja. Mr. Dhal further submits that the evidence of P.W.6 discloses that the appellant was found carrying Contraband Ganja, but evidence of P.W.5 reveals that the pillion riders were carrying Contraband Ganja which in the circumstance create suspicion in the veracity of prosecution case, especially when the appellant has taken a plea at the spot that he did not know what the pillion riders were carrying and the Contraband Ganja was not found from the exclusive possession of the appellant, rather it was found being dropped from one of the pillion rider, who while fleeing away from the spot dropped it. Mr. Dhal also brings to the notice of the Court that although 50 grams sample of CRA No.52 of 1994 Page 6 of 18 Contraband Ganja was drawn and sent for chemical examination, but the Chemical Examination report reveals about receipt of sample of 500 grams of Contraband Ganja which in the circumstance not only creates further suspicion, but also widens the gap between accusation against the appellant and proof of his guilt beyond all reasonable doubt and thus, the benefit of doubt must be extended to the appellant on the very score of material inconsistencies in the prosecution evidence.
On the contrary, Mr. T.K. Praharaj, learned Standing Counsel, however, by placing reliance on the evidence of PWs. 5 & 6 very strongly submits that the oral evidence not only confirms the appellant to have carried the Contraband Ganja, but also clinchingly establishes that it was the appellant, who was guilty for the offence had been carrying the Contraband Ganja in his motorcycle and P.W.6 had earlier got prior information about transportation of Contraband Ganja in the said motorcycle, which was being detained at the CRA No.52 of 1994 Page 7 of 18 spot with the appellant and the contraband article and, therefore, the guilt of the appellant having been firmly established by the prosecution, the conviction of the appellant calls for no interference. Mr.Praharaj accordingly prays to dismiss the appeal.
4. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of record, the admitted case of the prosecution is that the Contraband Ganja was being transported on a motorcycle which was in terms of the prior secret information as received by P.W.6, but when the Police raiding party detained the motorcycle, it was being ridden by the appellant with two pillion riders, who fled away from the spot. It is also not in dispute that the plea of the appellant was that he had given free lift to two unknown persons on his motorcycle. Sub-Sec.1 of Sec. 42 of the Act as it stood prior to its amendment by the Act of 9 of 2001 that the empowered officer on receipt of prior information as in this case should necessarily take it down in writing before proceeding to CRA No.52 of 1994 Page 8 of 18 carryout search, seizure and arrest without warrant between sunrise and sunset. Proviso thereto, mandates that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Although the learned trial Court has held that compliance of Sec 42 of the Act is not required, but it has observed so without noticing the aforesaid provision.
5. Indisputably, the testimony of PWs. 5 & 6 transpires that the secret information was received by PW6 at 7.15 PM and the case was detected at about 7.30 PM and thereby, the case was detected after sunset, but neither PW6 had recorded any grounds of his belief in terms of the proviso to Sec 42(1) of the Act, nor any evidence is tendered to overcome the aforesaid impediment mandated under law. The CRA No.52 of 1994 Page 9 of 18 admitted evidence of the prosecution discloses about transportation of Contraband Ganja by a private bullet motor cycle which is a conveyance within the meaning of Sec 42 of the Act and thereby attracting the compliance of Sec 42 of the Act. However, the evidence of PW6 neither indicates his recording the prior information in any concerned Register/Station Diary nor sending of any copy recording such information to his immediate official superior, notwithstanding to the provision U/S. 42(2) of the Act which makes it obligatory/mandatory to send a copy thereof (secret information given by any person and taken down in writing) "forthwith" to the immediate official superior, however, the word "forthwith" was replaced by "within 72 hours" by the Act of 09 of 2001. Admittedly, PW6 had neither taken down the secret information into writing in terms of Sec 42(1) of the Act nor recorded his grounds of belief in terms of proviso thereto. In the aforesaid situation, this Court is constraint to hold about non-compliance of Sec 42(1) & (2) of the Act CRA No.52 of 1994 Page 10 of 18 which are mandatory in nature. In this regard, this Court gainfully refers to the paragraph(d) of the conclusion of the decision of the constitutional Bench of five judges of Apex Court in Karnail Singh Vrs. State of Haryana; (2009) 8 SCC 539 wherein it has been held that while total non-compliance of requirements of Sub-Sec(1) & (2) of Sec 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Sec 42. In this case, the total failure of the prosecution to comply with these mandatory requirements thus affects its case and, therefore, vitiates the trial.
6. On coming back to the oral testimony of the witnesses, P.W.1 being the weighman has not supported the prosecution case by simply testifying in the Court that he does not know anything about the case. Similarly, P.W.2 being an independent and private seizure witness has also not supported the prosecution case by simply testifying in the Court that he does not know anything about the case. Further, P.W.3 has not CRA No.52 of 1994 Page 11 of 18 supported the prosecution case on material aspect about the recovery of Contraband Ganja from the possession of the appellant. Besides, P.W.4 being another independent witness has not supported the prosecution case. In the aforesaid circumstance, the prosecution case only rests only on the basis of the evidence of PWs. 5 & 6, who are not only the Police Officers, but also have done everything in this case starting from detection to submission of charge sheet. Adverting to re-appreciate the evidence of P.W.5, who was the A.S.I. of Police then, it transpires that on 24.02.1993, the O.I.C. got secret information regarding transportation of Contraband Ganja on a motorcycle and, therefore, he took him to Odagaon chhack of Nayagarh and while they were there, one Bullet motorcycle came from Odagaon side with two pillion riders with the appellant being its rider, but the moment they stopped the vehicle, the two pillion riders fled away and he chased them, but could not trace them out. On his return, P.W. 5 found P.W.6 to have CRA No.52 of 1994 Page 12 of 18 detained the appellant along with the polythene bag which was kept behind the accused, by the time they stopped the motorcycle. The evidence of P.W.5 further transpires that the bag was found with Contraband Ganja which came to 10 Kgs on weighment and the bag was seized and sealed at the spot. The defence, however, has made inroad in the cross-examination of P.W.5 by eliciting from him that one of the pillion riders was holding the bag when the accused stopped the motorcycle.
7. In the above situation, the evidence of P.W.6 appears to be significant, but his evidence transpires that on receipt of a credible information that a person carrying Contraband Ganja on a motorcycle bearing Regd. No-TN-45-Z-1630 from Sarankul side towards Nayagarh, he and P.W.5 proceeded to the spot and detained the vehicle. One of the interesting facts in this case is that although P.W.6 has got secret information, but admittedly he has not made any Station Diary with regard to the receipt of such secret CRA No.52 of 1994 Page 13 of 18 information. Normally, the Police on receipt of secret information use to record it on Station Diary. Neither any document was produced in the evidence to indicate about receipt of any secret information by P.W.6, nor was any evidence led to substantiate such claim. More is the punishment; strict is the standard of proof. Had P.W.6 received any reliable information, he should have reduced it into writing in the concerned Station Diary, but it is not established that P.W.6 has made any Station Diary entry with regard to receipt of secret information. It is also elicited from the mouth of P.W.6 that the bag under MO-I was kept on the tanki of the motorcycle and nobody was holding the bag, but P.W.5 says that the bag was being carried by the pillion riders which is contrary to each other. Further, P.W.6 has admitted in the cross-examination that neither he informed the Magistrate after getting the secret information, nor did he take the accused to any Magistrate immediate after arrest of the accused and from the accused he ascertained that the two pillion CRA No.52 of 1994 Page 14 of 18 riders, who escaped from the spot were given free lift from Darpada.
8. Cross-examination of P.W.6 further transpires that on 03.05.1993, he for the first time tried to enquire about those two persons who fled away from the spot and his investigation discloses that those two persons were only given free lift by the accused on his motorcycle. Further, the evidence of P.W.6 does not disclose about submitting any report to any higher authority with regard to arrest or seizure of the Contraband Ganja, but Section 57 of the Act makes it very clear that whenever any person makes an arrest or seizure under this Act, he shall within 48 hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate official superiors. However, this provision is although directory in nature, but P.W.6 has not at all complied the provision of Section 57 of the Act as his evidence is totally silent with regard to submission of any detail report, no matter P.W.6 has stated in his evidence that CRA No.52 of 1994 Page 15 of 18 he informed the matter to his immediate authorities, which is not the compliance as required U/S.57 of the Act.
9. One of the glaring discrepancies in this case is that the forwarding report under Ext.5 discloses about sending of 50 grams. of Contraband Ganja as a sample to the Director of State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for chemical examination, but the Chemical Examination report under Ext.6 transpires about receipt of 500 grams of some plant materials with fruiting and flowering tops said to be Contraband Ganja. In the circumstance, it is not understood as to how the Forensic Laboratory received a sample packet of 500 grams, when a sample of 50 grams was sent to it. This not only contributes to the discrepancies, but also a glaring inconsistency attached to the case, which has not been explained by the prosecution by leading any evidence. Further, Section 55 of the Act prescribes procedure for the Police to take charge of article seized and delivered to it CRA No.52 of 1994 Page 16 of 18 and in this case, the sample which was sent to the Forensic Laboratory had fair chance of being tampering in view of the aforesaid discrepancies.
10. In view of the aforesaid discussion of facts and evidence together with the failure of the prosecution to establish the safe custody of sample from the Court to the Forensic Laboratory coupled with failure of the prosecution to lead any independent and cogent evidence to prove the conscious possession of Contraband Ganja by the appellant coupled with total non-compliance of provisions of Sec 42 which is mandatory in nature as well as non-compliance of Sec 52 of the Act, this Court considers that the benefit of doubt as forthcoming in this case must be extended to the appellant for the reasons stated hereinabove and, therefore, the conviction of the appellant is found to be unsustainable in the eye of law.
11. In the result, the appeal is allowed on contest, but in the circumstance, there is no order as to costs. Consequently, the judgment of conviction and CRA No.52 of 1994 Page 17 of 18 order of sentence passed by the learned 1st Additional Sessions Judge, Puri, Camp at Nayagarh in S.T. Case No.57/331 of 1993 are hereby set-aside.
Consequently, the appellant is acquitted of the offence U/S. 20(b)(i) of the Act and he is discharged of his bail bonds.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 23rd day of August, 2024/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 27-Aug-2024 11:03:37 CRA No.52 of 1994 Page 18 of 18