Orissa High Court
Aswini Alias Ashoka Kumar Behera vs State Of Orissa on 11 October, 1995
Equivalent citations: 1996CRILJ900
JUDGMENT R.K. Dash, J.
1. This Criminal Appeal is directed against the judgment of the learned Second Additional Sessions Judge, Pari, in S. T. Case No. 36/346 of 1990 passed under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') whereby he convicted and sentenced the accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh, in default to undergo rigorous imprisonment for a further period of one year.
2. The prosecution case unfolded during trial is that on 23-10-1988 at about 6.45 PM Laxmidhar Mohapatra (P.W. 2), Officer-in-charge of Kumbharpada P.S. getting reliable information that the accused was selling brown sugar/heroin at Market Chhak near studio Blue Heaven in Puri town, he along with A.S.I., B. D. Routray (not examined) and Navildar Biswanath Naik (not examined) hastened to the spot. Seeing the Police party the accused made good his escape. He was, however, chased and apprehended. On search, three packets of heroin and cash of Rs. 53/- were recovered from his possession. P.W. 2 seized the same under seizure list Ex. 1/1 and brought the said articles along with the accused to the police station, draw up the F.I.R., Ext. 2 on his own information, registered a case under Section 18 of the NDPS Act and sent the seized articles for chemical examination and on completion of investigation placed charge-sheet against the accused to stand his trial.
3. The plea of the accused was denial simpliciter.
4. The prosecution in order to bring home the charge to the accused examined two witnesses and the learned Additional Sessions Judge solely relying upon the evidence of P.W. 2 convicted and sentenced the accused as hereinbefore stated.
5. Shri P. K. Mishra, learned counsel for the accused assailing the findings of conviction and sentence raised two fold contentions :
(i) That there had been non-compliance of Section 50 of the NDPS Act and the said provision being mandatory one, non-compliance thereof vitiates the trial; and
(ii) That evidence is lacking that what was alleged to have been seized from the possession of the accused had been sent Ibrchemical examination.
6. It is well known a proposition of law as enunciated by the Hon'ble Supreme Court in the case of State of Punjab v. Balbir Singh, (1994) 7 OCR (SC) 283, that the provisions of Section 50 of the NDPS Act are mandatory and it is obligatory of the officer concerned to inform the person of his right to be searched either before a Gazetted Officer or a Magistrate. In a recent decision, their Lordships of the Supreme Court reiterated the same view in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, 1995 Cri LJ 2662 (SC) and observed :
"Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case (1994 AIR SCW 1802) that the provisions in this behalf arc mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate."
7. Keeping in view the dictum of the apex Court referred to above, let me examine whether in the present case the Investigating Officer, P.W. 2 complied with the statutory requirements of Section 50. In chief examination he stated that he gave option to the accused to be searched before a Gazetted Officer but he declined. He, however, admitted during cross-examination that he did not mention about the fact of giving option to the accused to be searched before a Gazetted Officer in the case diary. Since mandatory provisions of Section 50 are to be strictly followed by the Investigating Officer conducting search, he was required to mention in the case diary that he gave option to the accused to be searched either before a Gazetted Officer or before a Magistrate. Since P.W. 2 admittedly did not note this material fact in the case diary, it is difficult to accept and rely upon his testimony that he had given option to the accused to be exercised while conducting his personal search. Added to it, accepting the evidence of P.W. 2 that he had informed the accused of his right to be searched before a Gazetted Officer to be true, yet the same cannot be said to be full compliance of the statutory requirement. Since the accused is authorised to require the search to be conducted either in presence of a Gazetted Officer or a Magistrate, P.W.2's statement as aforesaid amounts to partial compliance and not full compliance of Section 50. In this view of the matter, there being non-observance of the statutory provisions of Section 50 of the NDPS Act, the benefit thereof must go to the accused.
8. Coming to the second submission of Shri Mishra, there are suspicious circumstances to doubt the veracity of P.W. 2 as regards sealing and despatch of the alleged contraband article. The article was alleged to have been seized on 23-10-1988. It is the version of P.W.2 that he kept the seized article in P.S. Malkhana and only on 5-1-89 he produced before the S.D.J.M.. Puri praying to send the same for chemical examination. To satisfy the court that the contraband article had been properly preserved he stated in examination-in-chief that he wrapped and scaled the packets and look the signatures of the witnesses thereon. This part of his evidence was challenged in cross-examination and it was elicited that he did not mention the fact of sealing of the seized article in the case diary. As regards the seal that was used in sealing the packets, it is in his evidence that it was his own seal which all along remains in his custody. Needless to mention that law requires that it is for the prosecution to prove by leading cogent and reliable evidence that it was the very same article that was seized had been sent for chemical examination. In the present case P.W 2 being the Officer-in-charge scaled the alleged contraband article with his own seal and kept the sealed packets in the P.S. Malkhana. Even if this part of his evidence is accepted, it cannot be said with certainty that the seal affixed to the packets had not been tampered with. Another circumstance which militates against the prosecution case is as to whether the seized article had in fact been sealed by the seal of P.W. 2. Reference in this contract may be made to the order-sheet of the Magistrate. On the dale of sending the alleged seized article for chemical examination the Magistrate passed the order was under:
"I.O. prays to send the seized brown sugar to Director FSL for C.E. The seized brown sugar was produced before me packed and sealed in my presence in my seal. The sealed packet was made over to I.O. to send the same to Director FSL Rasulgarh through special messenger. Put up on the date fixed."
(Emphasis supplied) From the aforesaid order it is crystal clear that the alleged contraband article had not at all been kept in sealed cover by P.W.2. Had it been so, the Magistrate would have specifically mentioned that sealed packets were produced before him which he again packed and scaled with his own seal and sent for chemical examination. From the above I seriously doubt that what was alleged to have been seized was actually sent for chemical examination.
9. This Court had occasion to deal with a similar question in the case of Laxmidhar Mohapatra v. State of Orissa, (1994) 7 OCR 108, where P. R. Patra, J. relying upon the apex Court's decision in Valsala v. State of Kerala, (1993) 6 OCR 457 and on consideration of the evidence that the Police Inspector did not deposit the seized articles in the Police Station and that there was delay in producing the same before the Magistrate came to a conclusion that it could not be held beyond reasonable doubt that .what was seized from the possession of the accused was the very same article sent for chemical examination.
10. On analysis of the evidence of the prosecution and keeping in view the dictums of the apex Court and of this Court referred to above. I would hold that the prosecution could not be able to bring home the charge to the accused beyond reasonable doubt. In this view of the matter, the judgment and order of conviction passed by the learned trial court cannot be upheld.
11. In the result, the appeal is allowed and the conviction and sentence recorded against the accused are set aside. The accused, if in custody, be released forthwith, if not required in any other case and the fine amount, if realised, be refunded to him.