Herasha Majhi vs State Of Odisha on 22 October, 2019

[Cites 15, Cited by 0]

Orissa High Court

Herasha Majhi vs State Of Odisha on 22 October, 2019

Equivalent citations: AIRONLINE 2019 ORI 216, (2019) 76 OCR 728

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLA No. 489 Of 2014

From the judgment and order dated 05.08.2014 passed by the
Sessions Judge -cum- Special Judge, Rayagada in C.T. Case No.
08 of 2011.
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Herasha Majhi
@ Hiresa Majhi & Anr. ......... Appellants

-Versus-

State of Odisha ......... Respondent

For Appellants: - Mr. Satyabrata Pradhan

For State: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
-----------------------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 22.10.2019
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S. K. SAHOO, J. The appellants Herasha Majhi @ Hiresa Majhi and

Jejanga Majhi faced trial in the Court of learned Sessions Judge

-cum- Special Judge, Rayagada in C.T. Case No. 08 of 2011 for

offence punishable under section 20(b)(ii)(C) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereafter

'N.D.P.S. Act') on the accusation that on 06.02.2011 at about
2

5.00 a.m. in front of Kenduguda outpost under Padmapur police

station in the district of Rayagada, they were found in possession

of contraband ganja weighing 10 kgs. 640 grams and 13 kgs.

860 grams in two bags for selling purpose at Berhampur.

The learned trial Court vide impugned judgment and

order dated 05.08.2014 found the appellants guilty of the

offence charged and sentenced each of them to undergo rigorous

imprisonment for ten years and to pay a fine of Rs.1,00,000/-

(rupees one lakh only) each, in default, to undergo further

rigorous imprisonment for a period of one year each.

2. The prosecution case, as per the first information

report lodged by Alekha Chandra Dalei (P.W.2), S.I. of Police,

Kenduguda outpost, in short, is that on 05.02.2011 at about

9.00 p.m. some of the police officials of Kenduguda police

outpost and CRPF personnel were performing blocking and area

domination duty in front of Kenduguda outpost road. At about

5.00 a.m. on 06.02.2011, they found two persons coming from

Sardhapur side in a Hero Honda Splendor motorcycle bearing

registration no.OR-07-F-3000. The informant and his team

stopped the motorcycle and found the pillion rider was carrying a

jerry bag and another jerry bag was loaded on the carrier of the

motorcycle and acute smell of ganja was coming from both the
3

jerry bags. The informant suspected that the jerry bags might be

containing ganja. On being confronted by the informant, the

rider of the motorcycle identified himself as Herasha Majhi

(appellant no.1) and the pillion rider identified himself as Jejanga

Majhi (appellant no.2). Both the appellants confessed that they

were transporting ganja for sale at Berhampur. After giving his

identity, the informant offered the appellants with the option of

being searched by a Gazetted Officer or in presence of an

Executive Magistrate. The appellants opted in writing that they

wanted to be searched in presence of an Executive Magistrate.

The informant sent intimation about the detention of the

appellants with jerry bags to his official superior over phone and

also sent requisition of the Sub-Collector, Gunupur for deputation

of an Executive Magistrate to remain present at the spot during

search and seizure and the appellants were detained. Khirabdhi

Behera (P.W.12), Tahasildar, Padmapur arrived at the spot on

06.02.2011 at about 01.00 p.m. as per the order of A.D.M.,

Rayagada and after giving his personal search before the

appellants as well as taking the personal search of other

witnesses, in their presence, the appellants were searched and

the contraband ganja found in the two bags were weighed by

weighman Jitendra Mohapatra (P.W.7) and net quantity of ganja
4

found in one bag was 10 kgs. 640 grams and in the other bag, it

was 13 kgs. 860 grams and accordingly, a weighment chart was

prepared. From each of the bag, sample ganja of 50 gms. in

duplicate was collected in two packets after homogenous mixture

separately. The sample packets collected from the jerry bag

containing 10 kgs. 640 grams were marked as A-1 and A-2 and

the sample packets collected from the jerry bag containing 13

kgs. 860 grams were marked as B-1 and B-2 respectively. The

sample packets so collected were sealed with wax and personal

seal impression of the informant was put on it and similarly the

bulk quantity of ganja found in the jerry bags after collection of

samples were also sealed and a seizure list was prepared in

presence of the witnesses, P.W.12 and the weighman. The

informant seized the weighing machine in presence of the

witnesses as per seizure list and left it in the zima of the

weighman (P.W.7). The brass seal which was used for sealing

and packing of the ganja packets was also left in the zima of

P.W.7 under proper zimanama. The informant found prima facie

case under section 20(b)(ii)(C) of the N.D.P.S. Act against the

appellants for illegal possession and transportation of commercial

quantity of ganja in a motorcycle and accordingly, prepared the

written report and sent the report to the Inspector in charge of
5

Padmapur police station for registration of the case through a

constable.

3. The Inspector in-charge of Padmapur police station

namely, Smt. Jyotsnna Kaunri (P.W.13) on receipt of the written

report through constable, registered Padmapur P.S. Case No. 08

of 2011 against the appellants under section 20(b)(ii)(C) of the

N.D.P.S. Act and took up investigation.

During course of investigation, the I.O. examined the

constable who carried the written report, visited the spot,

examined the informant, took charge of the seized articles and

prepared the spot map (Ext.14). She examined the appellants

and arrested them and returned to the police station with the

appellants and the seized articles and kept the seized articles in

the P.S. Malkhana after making necessary entry in the Malkhana

and the seized bulk ganja packets and sample packets were also

produced in Court and prayer was made by the I.O. for sending

the seized sample packets for chemical analysis and also to keep

the seized bulk ganja packets in Court Malkhana. The learned

Special Judge, Rayagada directed for production of the sample

packets before the learned S.D.J.M., Rayagada for sending it to

R.F.S.L., Berhampur and accordingly, the I.O. produced the
6

sample packets before the learned S.D.J.M., Rayagada who

forwarded the same for chemical analysis through constable

along with specimen seal impression marked as Ext.C in a sheet

of paper. A separate petition was filed to receive the bulk ganja

packets marked as Exts.A and B in the Court Malkhana along

with the sample packets marked as Exts.A-2 and B-2. The prayer

was allowed. A query was made while forwarding the sample

packets for chemical analysis as to whether the brass seal

impression on the inner cover of exhibits A-1 and B-1 tallies with

that of specimen seal impression of Ext.C. The I.O. also seized

the station diary of Kenduguda outpost and the message for

deputation of Executive Magistrate to A.D.M., Rayagada under

seizure list Ext.11/1. The station diary entry book and Malkhana

Ext.12 and those were left in the zima of S.I. of police Krushna

Chandra Rout executing zimanama Ext.21. On 07.02.2011 the

I.O. made a full report of all the particulars of arrest and seizure

to the Superintendent of Police, Rayagada and on 07.03.2011

she seized the full report as per seizure list Ext.10. On

25.03.2011 the I.O. received the chemical examination report

(Ext.23) which indicated that the exhibits marked as A-1 and B-1

were found to contain fruiting and flowering tops of cannabis
7

plants (ganja) and the seal impression of exhibits A-1 and B-1

were found tallied with the specimen seal impression of Ext.C.

On 22.06.2011 on completion of investigation, charge sheet

under section 20(b)(ii)(C) of the N.D.P.S. Act was submitted

against the appellants.

4. The learned trial Court framed charge under section

20(b)(ii)(C) of the N.D.P.S. Act on 01.11.2011 and the

appellants refuted the charge and pleaded not guilty and claimed

to be tried.

5. The defence plea of the appellants was one of denial.

6. In order to prove its case, the prosecution examined

thirteen witnesses.

P.W.1 Lingaraj Palka was the constable attached to

Kenduguda outpost who accompanied the informant (P.W.2) for

patrolling duty. He stated about carrying of ganja in two gunny

bags by the appellants in a motorcycle and search and seizure of

ganja from the possession of the appellants in presence of the

Executive Magistrate.

P.W.2 Alekh Chandra Dalai, S.I. of Police of

Kenduguda outpost is the informant in the case who detected the

appellants carrying ganja in two bags on a motorcycle, seized it
8

after complying the required procedure in presence of the

witnesses.

P.W.3 Pradeep Kumar Rath was the A.S.I of Police

attached to Kenduguda outpost who accompanied P.W.2 for

patrolling duty. He also stated about the search and seizure of

ganja from the possession of the appellants.

P.W.4 Surendra Sabar was the police constable

attached to District Police Office, Rayagada who is a witness to

the seizure of detailed report regarding seizure of ganja as per

seizure list Ext.10 on being produced by the steno to S.P.,

Rayagada.

P.W.5 Rabinarayan Acharya, P.W.6 Debendra Panda

and P.W.7 Jitendra Mohapatra who are the independent

witnesses did not support the prosecution case and they were

declared hostile by the prosecution and cross-examined.

P.W.8 Simanchala Sahu was the constable attached

to Padmapur Police Station who stated about the seizure of one

command certificate and one RFSL receipt under seizure list

Ext.9.

P.W.9 A. Kamaraju Patra was the Havildar and

P.W.10 Ratnakar Bhanja was the Sepoy of CRPF Camp at

Kenduguda respectively who accompanied P.W.2 for patrolling
9

duty and they stated about search and seizure of ganja from the

possession of the appellants in presence of the Executive

Magistrate.

P.W.11 Rabi Pradhan was a constable attached to the

Padmapur Police Station who is a witness to the seizure of

detailed report regarding seizure of ganja as per seizure list

Ext.10 on being produced by the steno to S.P., Rayagada and

one Malkhana register vide Ext.12.

P.W.12 Khirabdhi Behera was the Tahasildar,

Padmapur, who on receipt of a message from A.D.M., Rayagada

proceeded to the spot and he stated about the search and

seizure of contraband ganja in two bags from the possession of

the appellants, collection of sample packets from the bags,

sealing of the bags and sample packets and preparation of the

seizure lists in which he put his signatures.

P.W.13 Smt. Jyotsnna Kaunri was the Inspector in

charge of Padmapur police station, who registered the case on

receipt of the written report from P.W.2. She is also the

investigating officer.

The prosecution exhibited twenty seven documents.

Ext.1 is the option of appellant no.1 Hiresa Majhi, Ext.2 is the

option of appellant no.2 Jejanga Majhi, Ext.3 is the message sent
10

to S.D.M. for deputation of an Executive Magistrate, Exts.4, 5, 9,

10, 11/1, 12 and 13 are the seizure lists, Exts.6, 20 and 21 are

the zimanama, Ext.7 is the certificate of the Executive

Magistrate, Ext.8 is the F.I.R., Ext.14 is the spot map, Ext.15 is

an application by the I.O. to Court for sending exhibits to

R.F.S.L., Berhampur for chemical examination and opinion,

Ext.16 is another application by the I.O. to Court to keep the mal

items in the Court Malkhana, Ext.17 is the forwarding report of

exhibits to R.F.S.L., Ext.18 is the command certificate, Ext.19 is

the acknowledgement receipt, Ext.22 is the detailed report,

Ext.23 is the chemical examination report, Ext.24 is the

statement of R.N. Acharya (P.W.5), Ext.25 is the statement of

Debendra Panda (P.W.6) and Ext.26 is the statement of Jitendra

Mahapatra (P.W.7) recorded by the I.O. during investigation and

Ext.27 is the extract of station diary entries nos.124, 125 dated

06.02.2011 and 142 dated 07.02.2011.

The prosecution also proved six material objects.

M.O.I is the sample packet, M.O.II is the seized ganja, M.O.III is

the sample packet of ganja (A-2), M.O.IV is the sample packet of

ganja (B-2) and M.Os.V and VI are the gunny bags containing

seized ganja.

No witness was examined on behalf of the defence.
11

7. The learned trial Court after analysing the evidence

on record came to hold that the evidence of P.Ws. 1, 2, 3, 8 and

9 that the appellants were carrying ganja in two jerry bags have

not been discredited and there was nothing to disbelieve them

merely because they were official witnesses. The confession of

the appellants before the Executive Magistrate (P.W.12) was

accepted and it was held by the learned trial Court that the

conscious possession of the bags M.Os.V and VI can safely be

attributed to the appellants. It was further held that non-

compliance of the provision under section 42(2) of the N.D.P.S.

Act has no bearing on the merits of the case as there was no

occasion for P.W.2 or his party coming to know about the arrival

of the appellants or transportation of contraband ganja. The

learned trial Court further held that there is no material on

record that there was any tampering of the seal or displacement

of the seized articles while keeping the same in the police station

Malkhana and there is no missing link in the chain of

circumstances from the point of seizure till the arrival of the

seized articles in Court. It was further held that the presence of

ganja leaves would not rule out the presence of flowering and

fruiting tops and that there was substantial compliance of section

57 of the N.D.P.S. Act which is not mandatory. It was further
12

held that the prosecution has successfully proved that the

appellants were transporting 24.5 kgs. of ganja and they have

failed to rebut the legal presumption arising under section 54 of

the N.D.P.S. Act and accordingly the appellants were found guilty

under section 20(b)(ii)(C) of the N.D.P.S. Act.

8. Mr. Satyabrata Pradhan, learned counsel appearing

for the appellants strenuously argued that the independent

witnesses to the search and seizure of contraband ganja have

not supported the prosecution case for which they have been

declared hostile and since the version of the official witnesses

are doubtful, the learned trial Court was not justified in

convicting the appellants. He further argued that there are

discrepancies regarding date and time of search and seizure as

per the statements of the prosecution witnesses. The ownership

of the motorcycle in which the appellants were stated to be

carrying contraband ganja has not been established by the

prosecution and therefore, it is doubtful as to how the

motorcycle in question came into the possession of the

appellants. Challenging the safe custody of the contraband ganja

after its seizure till its production in Court, it was argued that

when neither the Malkhana register nor its extract has been

produced in the trial Court and the brass seal of the informant
13

with which the contraband ganja and the sample packets were

sealed was not produced in Court at the time of production of the

seized articles for verification, it is a serious lacuna in the

prosecution case. It was further argued that the compliance of

section 57 of the N.D.P.S. Act has not been satisfactorily proved

by the prosecution which has a bearing on the appreciation of

the evidence. Placing reliance in the cases of Ramakrushna

Sahu -Vrs.- State of Orissa reported in (2018) 70 Orissa

Criminal Reports 340, Gurbax Singh -Vrs.- State of

Haryana reported in A.I.R. 2001 S.C. 1002, State of

Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa

Criminal Reports (SC) 283, Prasanta Kumar Behera -Vrs.-

State of Orissa reported in (2016) 64 Orissa Criminal

Reports 40, Ghadua Muduli -Vrs.- State of Orissa reported

in (2018) 71 Orissa Criminal Reports 413, Zwinglee Ariel

-Vrs.- State of M.P. reported in A.I.R. 1954 S.C. 15,

Paramahansa Jadab -Vrs.- The State reported in A.I.R.

1964 Orissa 144 and Makhan Singh -Vrs.- State of Haryana

reported in (2015) 61 Orissa Criminal Reports (SC) 532

while canvassing different points, it was argued that benefit of

doubt should be extended in favour of the appellants.
14

Mr. Prem Kumar Patnaik, learned Addl. Govt.

Advocate on the other hand supported the impugned judgment

and contended that even though the independent witnesses have

not supported the prosecution case relating to the search and

seizure of contraband ganja from the possession of the

appellants but since all the official witnesses have consistently

stated in that respect which has not been shaken in the cross-

examination and their version is clear, cogent and trustworthy

and they have no axe to grind against the appellants to falsely

entangle them in a case of this nature, the learned trial Court

rightly accepted such evidence and found the appellants guilty of

the offence charged. He argued that immediately after the

detention, the appellants disclosed before P.W.2 that they were

taking the gunny bags containing ganja for sale at Berhampur

and they also confessed before P.W.12 and their conduct is

admissible as res gestae under section 6 of the Evidence Act and

in view of section 26 of the Evidence Act, the confessional

statements made by the appellants before P.W.12 is admissible

and merely because the prosecution has not adduced any

evidence relating to the ownership of the motorcycle in question

and how such motorcycle came into the possession of the

appellants, it would not ipso facto be a ground to discard the
15

transportation of contraband ganja in that motorcycle. It was

further argued that after the contraband ganja was seized and

sealed, it was properly stored in the P.S. Malkhana before its

production in Court and as per the order of the Court, it was also

produced before the chemical examiner in sealed condition and

the defence has not challenged the factum of safe custody of the

contraband ganja after its seizure by cross-examining the

relevant witness (P.W.13) and therefore, the hypothetical

argument that there was possibility of tampering with the seized

contraband ganja cannot be accepted. He argued that there is

substantial compliance of the provision under section 57 of the

N.D.P.S. Act and placing reliance on the Division Bench decision

of Punjab and Haryana High Court in the case of State of

Haryana -Vrs.- Padam @ Parmod reported in 2019 (2)

Crimes 13 (P & H), it was argued that since there is no

infirmity in the impugned judgment, the appeal should be

dismissed.

9. It is true that the independent witnesses like P.Ws.5,

6 and 7 have not supported the prosecution case for which they

have been declared hostile by the prosecution and allowed to be

cross-examined by the learned Special Public Prosecutor under

section 154 of the Indian Evidence Act, 1872. Merely because
16

the independent witnesses have turned hostile, the evidence of

the police witnesses cannot be disbelieved. Conviction can be

based solely on the testimony of official witnesses; condition

precedent is that the evidence of such witnesses must be

reliable, trustworthy and must inspire confidence. There is

absolute no command of law that the testimony of the police

officials should always be treated with suspicion. Of course while

scrutinising the evidence, if the Court finds the evidence of the

police officials as unreliable and untrustworthy, the Court may

disbelieve them but it should not do so solely on the presumption

that a witness from the department of police should be viewed

with distrust. This is based on the principle that quality of the

evidence weighs over the quantity of evidence. The rule of

prudence requires a more careful scrutiny of the evidence of the

police officials, since they can be said to be interested in the

result of the case projected by them. Absence of any

corroboration from the independent witnesses does not in any

way affect the creditworthiness of the prosecution case. Non-

supporting of the prosecution case by independent witnesses in

N.D.P.S. Act cases is a usual feature but the same cannot be a

ground to discard the entire prosecution case. If the evidence of

the official witnesses which is otherwise clear, cogent,
17

trustworthy and above reproach is discarded in such cases just

because the independent witnesses did not support the

prosecution case, I am afraid that it would be an impossible task

for the prosecution to succeed in a single case in establishing the

guilt of the accused. Therefore, the Court has got an onerous

duty to appreciate the relevant evidence of the official witnesses

and determine whether the evidence of such witnesses is

believable after taking due care and caution in evaluating their

evidence. In case of Prasanta Kumar Behera (supra), it is held

as follows:-

"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."

10. Now it is to be seen how far the evidence of the

official witnesses are reliable and trustworthy. P.W.2, the
18

informant has stated that while he along with the other police

officials were performing patrolling duty near Kenduguda

outpost, they found two persons coming in a motorcycle carrying

two gunny bags containing something. They detained those two

persons and since ganja smell was emanating from the gunny

bags, on being confronted by P.W.2, those two persons not only

disclosed their identity as appellants but also told that they were

carrying the gunny bags containing ganja for sale at Berhampur.

The Hero Honda Splendor motorcycle which the appellants were

riding was having registration no.OR-07-E-3000. P.W.2

communicated regarding detention of contraband goods to the

Inspector in-charge of Padmapur police station, S.D.P.O. and

Superintendent of Police. When the appellants were asked by

P.W.2 as to whether they wanted to be searched by the police

officials or by an Executive Magistrate, the appellants exercised

their option in writing to be searched by an Executive Magistrate.

Letters of option have been proved by P.W.2 as Exts.1 and 2.

P.W.2 sent intimation to Sub-Collector, Gunupur for deputation

of an Executive Magistrate to the spot to remain present during

search and seizure. The copy of the message has been marked

as Ext.3.
19

The evidence of P.W.2 on the above aspect gets

support from the evidence of other official witnesses like P.W.1,

P.W.3, P.W.9 and P.W.10.

The learned counsel for the appellants contended

that P.W.3 admitted that he had not signed on the seizure lists

or any other documents in token of his presence at the spot at

the relevant time of search and seizure. P.W.9 has also stated

that no document relating to the fact that he was on duty at the

spot on the relevant date of seizure was seized from him by the

S.I. of police. P.W.10 has stated that he has not signed in any

seizure lists and no document in token of the fact that he was on

duty on the relevant date of seizure was seized from him by the

police. It is contended by the learned counsel for the appellants

that since there is no documentary evidence to support that

P.Ws.3, 9 and 10 were present at the spot at the time of

detention of the motor cycle or at the time of search and seizure,

their evidence should be taken out of consideration as there was

every chance of including those official witnesses as the

witnesses to the search and seizure at a belated stage.

Sub-sections (4) and (5) of section 100 of Cr.P.C.

read with section 165(4) of Cr.P.C. nowhere indicate that all the

persons witnessing a search are required to sign on the seizure
20

list. Even they shall not be required to attend the Court as

witnesses to the search unless specifically summoned by it as

per provision under section 100(5) of Cr.P.C. Signing of the

seizure list is not a part of witnessing the search. The officer

making search shall as far as practicable call upon two or more

independent and respectable persons of the locality to remain

present at the time of search and seizure and sign the

search/seizure list. Where there are number of persons present,

the officer concerned may in his discretion make two or more of

them as witnesses to the search and seizure and obtain their

signatures on the relevant documents. Therefore, a seizure list is

not required to be signed by all the witnesses present at the time

of search and seizure and the evidence of a witness to the search

and seizure which is otherwise reliable and trustworthy and his

presence at the relevant time cannot be brushed aside merely

because he is not a signatory to the seizure list. In other words,

even if the officer making search fails to obtain the signature of a

person who is a witness to the seizure in the seizure list, it may

amount to an irregularity and the effect of the same would

depend upon the facts and circumstances of each case.

Even if for the sake of argument, the evidence of

P.Ws.3, 9 and 10 are taken out of consideration on the ground
21

that there is no documentary evidence to show their presence at

the spot at the relevant time, there remains two official

witnesses like P.Ws. 1 and 2 who have deposed regarding the

detention of the appellants while coming on the motorcycle

carrying two gunny bags and option being given by the

appellants to be searched by an Executive Magistrate. The

investigating officer (P.W.13) seized the station diary of

Kenduguda outpost, message for deputation of Executive

Magistrate to A.D.M., Gunupur, Message of A.D.M., Rayagada for

deputation of Executive Magistrate and command certificate for

deputation of staff for Naka duty of Kenduguda outpost on

production by S.I. of police Alekha Chandra Dalai as per the

seizure list Ext.11/1. The command certificate of the constable

(P.W.1) has also been seized under seizure list Ext.9. Though it

has been elicited in the cross-examination of P.W.2 that there is

no document to show that he was directed to remain present for

the blocking which was going on at the spot, nothing further has

been elicited to discard the evidence of the police officials that

they were performing patrolling duty near the outpost and that

they detained the appellants while carrying two gunny bags in a

motorcycle from which smell of ganja was emanating and that as

per the option given by the appellants, request was made by
22

P.W.2 to the A.D.M., Gunupur for deputation of an Executive

Magistrate to remain present at the time of search and seizure.

Regarding discrepancies of the date and time of

search and seizure in the evidence of the prosecution witnesses

as contended by the learned counsel for the appellants, it is

highlighted that P.W.2 gave prevaricating statements. However,

on a careful scrutiny of the evidence of P.W.2, it appears that

though he along with other police officials were performing

patrolling duty near the outpost on 05.02.2011 but the detection

was made on 06.02.2011 at 5.00 a.m. whereafter intimations

were sent to different authorities and ultimately the seizure was

effected after the arrival of the Executive Magistrate at 2.00 p.m.

P.W.1 has also stated that the Executive Magistrate arrived at

the spot at about 1.00 p.m. P.W.12, the Executive Magistrate

stated that he reached at the spot at about 1.00 p.m. whereafter

the formalities of search and seizure were conducted. P.W.3 has

stated that the patrolling duty started at 9.00 p.m. on

05.02.2011 and the appellants were detained while coming on

the motor cycle at 5.00 a.m. on 06.02.2011 and the Executive

Magistrate arrived at the spot at 1.00 p.m. P.W.9 and P.W.10

have stated that they were performing patrolling duty on

05.02.2011 night and the appellants were detained with their
23

motorcycle on 06.02.2011 at about 5.00 a.m. and the Executive

Magistrate arrived at the spot at about 1.00 p.m. on 06.02.2011.

Thus there are no discrepancies in the evidence of the official

witnesses relating to the date and time of the search and seizure

rather it indicates that the patrolling duty was being performed

by P.W.2 and his team during the night on 05.02.2011 near

Kunduguda outpost and the appellants with their motorcycle

were detained on 06.02.2011 at about 5.00 a.m. and then

intimations were sent to different authorities and when P.W.12

arrived at the spot on 06.02.2011 at about 1.00 p.m., in his

presence the search and seizure took place. In the seizure list

(Ext.4), the timing of seizure is reflected as 06.02.2011 at 2.00

p.m. P.W.13, the Inspector in-charge of Padampur police station

has stated that Kenduguda outpost was under her control and its

staff used to act as per her direction but NAKA duty and area

domination duty were not performed as per her direction but it

was as per the direction of the S.I. of police of Kenduguda

outpost. Therefore, the contention of the learned counsel for the

appellants regarding discrepancies of the date and time of search

and seizure has no merit and liable to be rejected.

11. The next aspect which is to be dealt is the

confessional statement of the appellants before P.W.2 and
24

P.W.12. The learned trial Court has placed reliance on the

confession of the appellants before P.W.12.

P.W.2 has stated that after the detention, the

appellants disclosed before him that they were taking the gunny

bags containing ganja for sale at Berhampur and when P.W.12

came to the spot at 2.00 p.m. and two local witnesses namely

Debendra Panda and Rabinarayan Acharya also came there, on

being asked by P.W.12, the appellants confessed before him that

they were taking gunny bags containing ganja for sale.

It is not disputed that the evidence of P.W.2 relating

to confession of the appellants gets corroboration not only from

the evidence of P.W.1 and P.W.9 but also from the evidence of

P.W.12. There is no cross-examination on such aspects and even

no suggestion has been given to any of these witnesses that the

appellants have made no confession either before P.W.2 or

P.W.12.

The learned counsel for the appellants placing

reliance on the decision of the Hon'ble Supreme Court in the

case of Zwinglee Ariel (supra) and of this Court in the case of

Paramhansa Jadab (supra) contended that such confessional

statements are inadmissible.
25

Under section 25 of the Evidence Act, no confession

made by an accused to a police officer can be admitted in

evidence against him. Section 26 states that no confession made

by any person whilst he is in the custody of a police officer,

unless it be made in the immediate presence of a Magistrate,

shall be proved as against such person. Therefore, section 26 is

an exception by which a confessional statement made in the

immediate presence of the Magistrate is made provable and

becomes admissible in evidence against an accused

notwithstanding the fact that he was in the custody of the police

when he made the incriminating statement.

In case of Indra Dalal -Vrs.- State of Haryana

reported in (2015) 61 Orissa Criminal Reports (SC) 1001,

the Hon'ble Supreme Court while discussing section 26 of the

Evidence Act held as follows:-

"16. The philosophy behind the aforesaid
provision is acceptance of a harsh reality that
confessions are extorted by the police officers by
practicing oppression and torture or even
inducement and, therefore, they are unworthy of
any credence. The provision absolutely excludes
from evidence against the accused a confession
made by him to a police officer. This provision
applies even to those confessions which are
made to a police officer who may not otherwise
26

be acting as such. If he is a police officer and
confession was made in his presence, in
whatever capacity, the same becomes
inadmissible in evidence. This is the substantive
rule of law enshrined under this provision and
this strict rule has been reiterated countlessly by
this Court as well as the High Courts.
17. The word 'confession' has no where been
defined. However, the courts have resorted to
the dictionary meaning and explained that
incriminating statements by the accused to the
police suggesting the inference of the
commission of the crime would amount to
confession and, therefore, inadmissible under
this provision. It is also defined to mean a direct
acknowledgment of guilt and not the admission
of any incriminating fact, however grave or
conclusive. Section 26 of the Evidence Act
makes all those confessions inadmissible when
they are made by any person, whilst he is in the
custody of a police officer, unless such a
confession is made in the immediate presence of
a Magistrate. Therefore, when a person is in
police custody, the confession made by him even
to a third person, that is other than a police
officer, shall also become inadmissible."

In case of Zwinglee Ariel (supra), it is held that if

the confessional statement is not recorded by the Magistrate in
27

the manner prescribed by section 164 of Cr.P.C., the same will

not be admissible in evidence under section 26 of the Evidence

Act even if such confession is made in the immediate presence of

the Magistrate. In case of Paramhansa Jadab (supra), it is

held that "police custody" for purpose of section 26 does not

commence only when the accused is formally arrested but would

commence from the moment when his movements are restricted

and he is kept in some sort of direct or indirect police

surveillance. As soon as an accused or suspected person comes

into the hands of a police officer, he is, in the absence of any

clear and unmistakable evidence to the contrary, no longer at

liberty and is therefore in "custody" within the meaning of

section 26 of the Evidence Act. Even indirect control over the

movements of suspects by the police would amount to 'police

custody' within the meaning of section 26. The learned counsel

for the State placed reliance in the case of Padam @ Parmod

(supra) in which a Division Bench of Punjab and Haryana High

Court held that the expression 'Magistrate' in section 26 of the

Evidence Act includes 'Executive Magistrate' and not only the

'Judicial Magistrate'.

Even though P.W.2 has stated that after their

detention, the appellants confessed before him that they were
28

taking the gunny bags containing ganja for sale at Berhampur

but in view of section 25 of the Evidence Act, it is not admissible.

P.W.12 stated that when he arrived at the spot at about 1.00

p.m., he found the appellants were present near a motorcycle

and two gunny bags were kept on the motorcycle and the police

persons were present surrounding them. He disclosed his identity

and on being asked, the appellants disclosed their names and

told that they were taking ganja for sale. P.W.12 has not

reduced the confessional statement into writing. Except giving

his identity, P.W.12 has not followed any of the requirements as

laid down under section 164 of Cr.P.C. for recording of

confession by the Magistrate. Even if it is not a confession made

before a Magistrate which was reduced into writing but since it is

sought to be utilized against the maker thereof, prudence

requires that not only the Magistrate must disclose his identity

before the maker but also explain to the person concerned that

he is not bound to make a confession and if he does so, it may

be used against him. There must be also material that the

Magistrate has reason to believe that confessional statement is

being made voluntarily. If these minimum requirements are not

adhered to and the confessional statement made before the

Magistrate which is not reduced to writing, is used against the
29

maker thereof, it is likely to cause serious prejudice to him. In

the present case, the appellants were detained in police custody

since 5.00 a.m. and P.W.12 arrived at the spot at about 1.00

p.m. which is almost eight hours after their detention. In such a

scenario when they were surrounded by police, it is very difficult

to accept that the confession, if any, was made in a free mind.

There was every possibility of influence of the police to the

appellants by way of threat, inducement or promise. Therefore, it

would not be proper to place reliance on the so-called

confessional statements made by the appellants before P.W.12.

Moreover, it is a joint confessional statement and it is not known

which appellant spoke what words and what sequence. Another

interesting feature is that in the first information report, it is

mentioned that when the Executive Magistrate interrogated, the

appellants disclosed that they were carrying ganja in their

motorcycle after procuring the same at the cost of Rs.500/- per

bag with a view to sale in higher price. Thus, there are

discrepancies relating to the exact nature of disclosure made by

the appellants before P.W.12. The appellants specifically denied

in their statements recorded under section 313 of Cr.P.C. to have

made any such confession. In view of the foregoing discussions,

I am of the humble view that the learned trial Court was not
30

justified in placing reliance on the confessional statements of the

appellants.

Even otherwise, the confessional statements made

by the appellants before P.W.12 cannot be utilized as res gestae

under section 6 of the Evidence Act as it is not a spontaneous

statement but was given after eight hours of police detention. To

form particular statement as part of the same transaction as

required under section 6 of Evidence Act, it must be

simultaneous with the incident or substantial contemporaneous

that is made either during or immediately before or after the

occurrence. In the case of Gentela Vijayavardhan Rao -Vrs.-

State of Andhra Pradesh reported in (1996) 6 Supreme

Court Cases 241, while discussing section 6 of the Evidence

Act, the Hon'ble Supreme Court held that the principle or law

embodied in section 6 of the Evidence Act is usually known as

the rule of res gestae recognised in English Law. The essence of

the doctrine is that fact which, though not in issue, is so

connected with the fact in issue "as to form part of the same

transaction" becomes relevant by itself. This rule is, roughly

speaking, an exception to the general rule that hearsay evidence

is not admissible. The rationale in making certain statement or

fact admissible under section 6 of the Evidence Act is on account
31

of the spontaneity and immediacy of such statement or fact in

relation to the fact in issue. But it is necessary that such fact or

statement must be part of the same transaction. In other words,

such statement must have been made contemporaneous with

the acts which constitute the offence or at least immediately

thereafter. But if there was an interval, however slight it may be,

which was sufficient enough for fabrication then the statement is

not part of res gestae.

Thus the contention of the learned counsel for the

State that conduct of the appellants is admissible as res gestae,

is not acceptable.

12. Let me now analyse the evidence on record relating

to the search and seizure of contraband ganja from the

possession of the appellants.

P.W.2 has stated that P.W.7 was called with weighing

machine and P.W.12 took personal search of all the staff present

and did not recover anything from any person. The first gunny

bag was weighed and it was found to be 10 Kgs. 710 grams and

the second gunny bag was found to be 13 Kgs. 800 grams. After

measurement, the contents of gunny bags were mixed together

and sample of 50 grams each was collected from each gunny

bag. He further stated that the sample packets were properly
32

sealed and the personal seal of P.W.2 was put on the sample

packets. The bulk quantity of ganja contained in the two packets

were also sealed with the personal seal of P.W.2 and then the

signatures of P.W.12 and other persons present at the spot were

obtained on the paper slips which were affixed to the sample

packets.

P.W.12 has not stated anything relating to taking of

personal search of anyone in the chief examination. However,

the learned defence counsel without being conscious of the oft-

quoted principle that a counsel cross-examining a witness should

first know what not to ask than what to ask, has elicited in the

cross-examination of P.W.12 that prior to the search of the

appellants, their personal search was taken and nothing was

recovered from their possession and then the personal search of

three police personnel were also taken and nothing was

recovered. P.W.12 without stating what quantity of ganja was

found from each of the bag has stated that opening the gunny

bags, ganja was found and on weighment, the ganja along with

the gunny bags came to 24 Kgs. 655 grams and the net weight

of ganja was 24 Kgs. 500 grams. He further stated that P.W.2

collected two sample packets from each gunny bag each

containing 50 grams and sealed the same by using wax and
33

brass seal and marked the sample packets as A-1, A-2, B-1 and

B-2. He further stated that P.W.2 also sealed the gunny bags

containing bulk ganja by using wax and brass seal and thereafter

seized the jerry bags containing bulk ganja as well as sample

packets under seizure list Ext.4 and signed the seizure list. He

further stated that P.W.2 seized the weighing machine and

obtained the signatures of the witnesses, appellants and his own

signature on the paper slips and kept one paper slip in each

sample packets and on the gunny bags containing ganja. P.W.12

gave certificate to the fact that two packets of seized ganja

marked as A and B were weighed, packed, sealed and labeled in

his presence as per seizure list so also the sample packets vide

A-1, A-2, B-1 and B-2 were prepared. P.W.2 left the seized

weighing machine and his personal brass seal under the zima of

P.W.7 by executing a zimanama. Thus the evidence of P.W.2

gets corroboration from the evidence of P.W.12.

P.W.7 has not supported the prosecution case. No

weighment chart was proved during trial. P.W.2 should not have

mixed the contents of the two gunny bags together before

collecting the sample. Samples should have been collected from

the individual gunny bag separately and it should have also been

separately marked. What was the content of one bag cannot be
34

known once it is mixed with the content of the other bag and

thereafter sample is taken. The statement of P.W.2 regarding

collection of sample appears to be a little confusing. Though on

the one hand, he states that the contents of gunny bags were

mixed together whereas on the other hand, he states that

sample of 50 grams each was collected from each gunny bag. It

seems that the contents of each gunny bag were homogeneously

mixed but separately and then the samples were collected in

duplicate from each gunny bag separately. P.W.12 has stated

two sample packets were collected from each gunny bag and it

was marked as A-1 and A-2 so far as the first bag is concerned

and B-1 and B-2 so far as the second bag is concerned.

It appears that A-1 and B-1 were sent for chemical

examination whereas A-2 and B-2 were kept in Court Malkhana

along with the bulk quantity of ganja. The exhibits marked as

A-1 and B-1 on chemical examination were found to contain

fruiting and flowering tops of cannabis plant (ganja).

P.W.2 has stated that his personal brass seal was left

in the zima of P.W.7 by executing zimanama (Ext.6). P.W.12 has

also stated that P.W.2 left the seized weighing machine and his

personal brass seal under the zima of weighman (P.W.7) on

execution of a zimanama. P.W.3 has stated that P.W.2 left the
35

brass seal under the zima of P.W.7 on execution of a zimanama.

The zimanama (Ext.6) clearly indicates that the brass seal along

with weighing machine were handed over in the zima of P.W.7.

Even though P.W.7 has not supported this aspect for which he

was declared hostile but since three official witnesses have

stated in that respect and nothing has been brought out in the

cross-examination to disbelieve such aspect, I find no constraint

in accepting the prosecution case that the personal brass seal of

P.W.2 was handed over to P.W.7 after the bulk ganja packets

and sample packets were sealed.

Now coming to the safe custody of the contraband

ganja after its seizure, P.W.2 has stated that when the Inspector

in charge (P.W.13) came to the spot, he handed over the seized

articles, the appellants and all the papers to her. P.W.13 has

stated that after she took charge of the seizure list and the

seized items from P.W.2, she resealed the seized bulk ganja and

sample packets of ganja and after she returned to the police

station at 10.00 p.m. on 06.02.2011 along with the appellants

and the seized articles, she kept the seized articles at P.S.

Malkhana vide Malkhana Register Entry No.1 of 2011 and on

07.02.2011, the appellants were sent to the learned Special

Judge, Rayagada along with the seized bulk ganja and sample
36

packets. P.W.13 has further stated that there was a Malkhana at

Padmapur police station and S.I. of police K.Ch. Rout was the in-

charge of P.S. Malkhana but she has not cited K.Ch. Rout as a

witness in the charge sheet. She admits that she had not sent

the Malkhana register of the police station or even the extract of

it to the Court. Suggestion has been given that she has not

deposited the seized bulk ganja and sample packets at P.S.

Malkhana on 06.02.2011. She admits that she has left Column

No.4 blank in respect of P.S. property registration number in the

final form. The extract of the station diary entry nos.124, 125

dated 06.02.2011 and 142 dated 07.02.2011 of Padmapur police

station has been marked as Ext.27. S.D. Entry No.124 reveals

that P.W.13 resealed the seized articles after taking charge. S.D.

Entry No.125 reveals that P.W.13 took the Malkhana key from

S.I. of police K.Ch. Rout and she kept the sealed jerry bags

containing bulk quantity of ganja and sample packets in the

Malkhana and it was entered in the Malkhana register bearing

no.1/2011. S.D. Entry No.142 reveals that after the lock of the

Malkhana was opened in presence of constable, the mal items

marked as A, A-1, A-2, B, B-1 and B-2 were found intact and it

was brought out of the Malkhana. There is virtually no cross-

examination on the station diary entries.
37

Learned counsel for the appellants placing reliance in

the case of Ramakrushna Sahu (supra) contended that since

the Malkhana register or its extract has not been produced in

Court, the safe custody of the seized articles after its seizure and

before its production in Court is doubtful. In the said case, it has

been held as follows:-

"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 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.
When the malkhana registers of Jarada
police station as well as Baidyanathpur police
38

station have not been proved in the case and
the officers in charge of malkhana of the
respective police stations have not been
examined, it is difficult to believe that the seized
articles along with the sample packets were in
safe custody before its production in Court for
being sent for chemical analysis."

In the case in hand, the Malkhana register of

Padmapur police station or its extract has neither been seized

during investigation nor produced during trial. The person in

charge of P.S. Malkhana namely K.Ch. Rout has neither been

cited as a charge sheet witness nor examined in Court. Except

P.W.13, no other witness has stated about keeping the seized

articles in the P.S. Malkhana. Except the extract of station diary

entry, there is no other document to show that the seized

articles were kept in the P.S. Malkhana. The detailed report

(Ext.22) which was submitted on 07.02.2011 by P.W.13 to the

Superintendent of Police, Rayagada nowhere indicates that the

seized articles were kept in Malkhana before those were sent to

Court with the forwarding of the appellants. Neither in Ext.15 nor

in Ext.16, it was mentioned that the bulk ganja packets and

sample packets were kept in Malkhana. No reason has been

assigned by P.W.13 as to why the vital document like Malkhana

can be said that the prosecution has failed to adduce cogent

evidence that the seized bulk ganja packets and the sample

packets were in safe custody before its production in Court.

The personal brass seal of P.W.2 was handed over to

P.W.7 under zimanama (Ext.6) but the order sheet of the Court

indicates that the said seal was not produced in Court either at

the time of production of the seized contraband ganja and the

sample packets at the first instance or at the time of trial.

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 seized

articles while in police custody.

P.W.2 has stated that the signatures of P.W.12 and

other persons present at the spot were obtained on the paper

slip which was affixed on the sample packet A-1 which was

collected from one bag. He has also stated that the other sample

packet was collected from the second bag and the signatures of

P.W.12 and others were taken on the paper slip which was

affixed on such sample packet. P.W.12 however stated that

paper slip containing the signatures of the witnesses, appellants,
40

P.W.2 and his own signature was kept in each sample packet and

also in the gunny bags containing ganja. During examination of

P.W.12, one sample packet marked A-2 was opened in Court in

presence of the witnesses and it was found that no paper slip

containing the signature of any person was inside the alleged

sample packet. No such paper slip was found in exhibits A-1 and

B-1 sent for chemical analysis. Therefore, the so-called paper

slips containing the signatures of the witnesses was neither there

on the sample packets nor found inside it which is a suspicious

feature. Though Ext.C which contained specimen seal impression

in a sheet of paper was sent along with sample packets Ext.A-1

and Ext.B-1 for chemical examination but none has stated Ext.C

was prepared from the personal brass seal of P.W.2 which was

handed over to P.W.7. This missing link weakens the prosecution

case and tilts the balance in favour of the appellants.

13. Coming to the non-compliance of section 57 of the

N.D.P.S. Act, it was argued by the learned counsel for the

appellants that there is no receipt or acknowledgement of the

detailed report Ext.22 in the office of the Superintendent of

Police, Rayagada. P.W.13, the I.O. admits that there is no

receipt or acknowledgement in token of the fact that the detailed

report was received by the office of Superintendent of Police,
41

Rayagada. Though P.W.4, P.W.11 as well as P.W.13 have stated

that the detailed report was seized from the steno of

Superintendent of Police namely Sisir Kumar Swain under seizure

list Ext.10 but P.W.13 has stated that he has not examined steno

Sisir Kumar Swain and he has also not cited him as a witness in

a charge sheet. In case of Gurbax Singh (supra), it is held that

it is true that the provision under section 57 of the N.D.P.S. Act

is directory and violation of such provision would not ipso

facto violate the trial or conviction. However, I.O. cannot totally

ignore the provision and such failure will have a bearing on

appreciation of evidence regarding arrest of the accused or

seizure of the article. In case of Balbir Singh (supra), it is held

that if there is non-compliance of the provision under section 57

of the N.D.P.S. Act 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. In the case of Ghadua Muduli (supra), it is

held that when the original report has not been produced and no

competent witness from the S.P. office has been examined and

no corresponding documents from the office of S.P. has been

proved relating to receipt of the full report under section 57 of
42

the N.D.P.S. Act, it is very difficult to accept that there is

substantial compliance of such provision.

Therefore, in absence of any documentary evidence

like receipt or acknowledgement of the detailed report in the

S.P.'s office and non-examination of the steno namely Sisir

Kumar Swain from whom such report was seized, it cannot be

said that the prosecution has proved the substantial compliance

of the provision under section 57 of the N.D.P.S. Act.

14. It is contended by the learned counsel for the

appellants that since the ownership of the motorcycle in question

has not been established by the prosecution and it is doubtful as

to where from the motorcycle came into the possession of the

appellants, benefit of doubt should be given to the appellants.

Reliance was placed in the case of Makhan Singh (supra)

wherein the Hon'ble Supreme Court analysing the facts came to

hold that the Courts below erred in attributing to the appellants

the onus to prove that wherefrom fitter-rehra (a vehicle) had

come, especially when ownership/possession of fitter-rehra has

not been proved by the prosecution.

There cannot be any settled principle that wherever

the prosecution has failed to establish the ownership of a vehicle

in which the accused was carrying contraband articles and how
43

the vehicle came into his possession, benefit of doubt should be

extended in his favour. An accused may commit theft of a

vehicle and thereafter changing its colour and tampering with its

registration number, engine and chassis number may use it for

committing the offence in the event of which it would be difficult

for the prosecution to establish the ownership of the vehicle.

Therefore, possession of the vehicle with the accused at the time

of commission of crime is an important aspect which is to be

carefully considered by the Court.

15. Law is well settled that the prosecution has to prove

that the articles which were produced before the Court were the

very articles which were seized and the entire path has to be

proved by adducing reliable, cogent, unimpeachable and

trustworthy evidence. Since the punishment is stringent in

nature, any deviation from it would create suspicion which would

result in giving benefit of doubt to the accused.

In view of the foregoing discussions, when the

confessional statements of the appellants before P.W.2 and

P.W.12 cannot be acted upon, the safe custody of the seized

articles before its production in Court is doubtful, the P.S.

Malkhana register or its extract has not been produced during

trial in support of keeping the seized articles in safe custody, the
44

personal brass seal of P.W.2 with which the seized articles were

sealed was not produced in Court at the time of production of the

seized articles and even during trial and there is no satisfactory

compliance of the provision of section 57 of the N.D.P.S. Act, it

cannot be said that the prosecution has successfully established

the charge under section 20(b)(ii)(C) of the N.D.P.S. Act against

the appellants beyond all reasonable doubt.

Therefore, the impugned judgment and order of

conviction of the appellants under section 20(b)(ii)(C) of the

N.D.P.S. Act and the sentence passed thereunder is not

sustainable in the eye of law.

Accordingly, the Criminal Appeal is allowed. 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 set at liberty forthwith if their detention is 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.

.................................
S.K. Sahoo, J.

Orissa High Court, Cuttack The 22nd October 2019/Pravakar/Sisir/RKM/Sukanta

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