Orissa High Court
Sumit Kumar Behera vs State Of Odisha on 24 April, 2019
Equivalent citations: AIRONLINE 2019 ORI 56, (2019) 2 CRIMES 273, (2019) 2 ORISSA LR 49, (2019) 4 CRIMES 65, (2019) 74 OCR 848
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL No. 452 Of 2013
From the Judgment and Order dated 23.08.2013 passed by the
Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a)
C.C. No. 02 of 2011 (N).
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Sumit Kumar Behera
& another ......... Appellants
-Versus-
State of Odisha ......... Respondent
For Appellants: - Mr. Soura Ch. Mohapatra
For Respondent: - Mr. Purna Chandra Das
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 12.04.2019 Date of Judgment: 24.04.2019
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S. K. SAHOO, J. The appellants Sumit Kumar Behera and Babu Gouda
faced trial in the Court of learned Sessions Judge -cum- Special
Judge, Ganjam, Berhampur in 2(a) C.C. No. 02 of 2011 (N) for
offence punishable under section 20(b)(ii)(C) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereafter
2
'N.D.P.S. Act') on the accusation that on 18.02.2011 at about
07.00 a.m. they were found in possession of three quintals of
contraband ganja in front of Iswari Dhaba at Podamari under
Pattapur police station in the district of Ganjam carrying it in an
Ambassador Car bearing registration number OR-02-AE-0200 in
contravention of the provision under section 8(c) of the said Act.
The learned trial Court vide impugned judgment and
order dated 23.08.2013 found the appellants guilty of the
offence charged and sentenced each of them to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.1,00,000/- (rupees one lakh) each, in default, to undergo
further rigorous imprisonment for period of two years each.
2. The prosecution case, in short, is that on 17.02.2011
at about 8.00 p.m. Sarat Chandra Bhanja (P.W.4), S.I. of Excise,
E.I. and E.B., Unit-II (S.D.), Berhampur received reliable
information about illegal transportation of ganja in between
Digapahandi and Luhagudi State Highway. He entered the fact in
the information register and gave a letter to the Inspector in
Charge, E.I. and E.B., Berhampur who directed him to detect the
case. On 18.02.2011 at about 4.30 a.m. P.W.4 along with his
staff proceeded to Podamari and in front of Iswari Dhaba, they
found one Ambassador Car bearing registration number OR-02-
3
AE-0200 was coming towards Digapahandi. When they detained
the car, the appellant Babu Gouda was found in the driver's seat
and appellant Sumit Kumar Behera was also found in the car.
Jerry bags were found loaded on the rear seat of the car. When
the appellants were asked about the contents of the jerry bags,
they remained silent. P.W.4 asked the appellants to give option if
they would like to be searched in presence of Executive
Magistrate or Gazetted Officer but they opted to be searched by
P.W.4. P.W.4 called independent witnesses to the spot and in
their presence, the car was searched and ten numbers of jerry
bags emanating smell of ganja were recovered from inside the
car. P.W.4 conducted preliminary tests such as burning of a little
piece of the contents of the bags and taking smell of the same.
By his service experience, P.W.4 was confirmed that the jerry
bags were containing ganja. The weight of the bags was taken
which was found to be three quintals. Since the appellants did
not produce any authority to transport ganja, the car along with
its starting key, the jerry bags containing ganja were seized
under seizure list Ext.1. P.W.4 sealed the seized bags by using
papers and affixing impression of his brass seal. He gave his
brass seal to P.W.2 Kalu Charan Jena on zima, recorded the
statements of the appellants and witnesses. He gave a copy of
4
the seizure list to each of the appellants by obtaining zimanama,
prepared the spot map. The appellants were arrested and
produced before the learned Special Court and as per the
direction of the learned Special Court, the seized ganja bags
were produced before the learned S.D.J.M., Berhampur and in
his presence, the samples were collected. P.W.4 sent the sample
packets for chemical analysis through Constable Bhagaban
Mahanandia. During course of investigation, P.W.4 issued a letter
to the R.T.O., Bhubaneswar for supply of details of the seized
car. The R.T.O. issued a letter enclosing xerox copy of the R.C.
book that the owner of the vehicle was one Usarani Das. The
owner was found dead and her husband submitted an affidavit
with a copy of the death certificate of his wife. He received the
chemical examination report and on completion of investigation,
P.W.4 submitted the prosecution report against the appellants.
3. The learned trial Court framed charge under section
20(b)(ii)(C) of the N.D.P.S. Act on 02.09.2011 and the
appellants refuted the charge and pleaded not guilty and claimed
to be tried.
4. The defence plea of the appellants was one of denial.
5. In order to prove its case, the prosecution examined
four witnesses.
5
P.W.1 Susanta Gouda who was working as Watchman
at Forest Check-gate, Podamari stated that he has no knowledge
about any incident and excise staff seized some bags.
P.W.2 Kalu Charan Sahu stated that on 18.02.2011
the excise staff seized ten bags of contraband ganja in front of
P.W.D. I.B., Podamari and prepared seizure list in which he put
his signature.
P.W.3 Bhagaban Mahanandia was working as Excise
Constable attached to E.I. & E.B., Berhampur and he stated
about seizure of ten bags of contraband ganja from inside the
car on 18.02.2011, weighment of the contraband ganja,
preparation of the seizure list and arrest of the appellants. He
also proved the spot map (Ext.2) and written consent obtained
from the appellants vide Exts. 3 & 4.
P.W.4 Sarat Chandra Bhanja was working as S.I. of
Excise, who not only received the reliable information regarding
transportation of ganja in a car but also proceeded to the spot
with his staff, seized the jerry bags containing contraband ganja
from inside the car, took weighment of the contraband ganja and
prepared the seizure list as well as other documents. He arrested
the appellants, produced them in Court, made prayer for sending
the sample collected in Court for chemical examination, seized
6
various documents and after completion of investigation, he
submitted prosecution report against the appellants.
The prosecution exhibited eleven documents. Ext.1 is
the seizure list, Ext.2 is the spot map, Exts.3 and 4 are the
written consent of the appellants, Ext.5 is the information letter,
Ext.6 is the forwarding letter of S.D.J.M., Berhampur for
chemical examination, Ext.7 is the letter of the Investigating
Officer to the R.T.O., Bhubaneswar, Khurda for supply of
particulars of the ownership of the Ambassador car, Ext.8 is the
reply given by the R.T.O., Ext.9 is the xerox copy of death
certificate of the owner of the offending vehicle, Ext.10 is the
affidavit of Prasanna Kumar Dash, the husband of the deceased
owner of the offending vehicle and Ext.11 is the chemical
examination report.
The prosecution also proved ten material objects.
M.Os. I to X are the sealed jerry bags containing residue ganja.
No witness was examined on behalf of the defence.
6. The learned trial Court after analysing the evidence
on record came to hold that non-dispatch of a copy of the page
of the register containing the entry relating to the reliable
information received or an extract of the same in the factual
scenario of the case cannot be viewed favouring non-compliance
7
of provisions of section 42(2) of the N.D.P.S. Act. The learned
trial Court was of the considered opinion that there has been
substantial compliance of section 42(2) of the Act. It was further
held that the discrepancy in the evidence of P.W.3 and P.W.4
with regard to the manner of coming of the vehicle is too trivial
and such discrepancy is also not unnatural to occur and that
itself is not a ground to entertain doubt with regard to search so
as to upset the foundation of the prosecution case. The learned
trial Court found the evidence of P.Ws.3 and 4 to be quite
consistent and free from any doubtful features and held that
P.W.1's non-supporting the prosecution case in relation to
search, recovery and seizure has absolutely got no significance.
It was further held that P.W.3 and P.W.4 during trial specifically
identified appellant Babu Gouda as the driver of the car and the
other appellant as the passenger and that the prosecution
evidence that three hundred kilograms of ganja were recovered
from the car which was in occupation of the appellants is wholly
acceptable and that the prosecution case regarding search,
recovery and seizure of ganja from the conscious possession of
the appellants stood established beyond reasonable doubt.
7. Mr. Soura Ch. Mohapatra, learned counsel appearing
for the appellants strenuously contended that there is no fair
8
investigation as the Excise Sub-Inspector (P.W.4) conducting
search and seizure has himself carried out the entire
investigation and submitted the prosecution report. He placed
reliance in the case of Mohan Lal -Vrs.- State of Punjab
reported in A.I.R. 2018 S.C. 3853 to show that if an
informant police official in a criminal prosecution is himself asked
to investigate the case, serious doubts would naturally arise with
regard to his fairness and impartiality and obligation of proof
beyond reasonable doubt would take within its ambit fair
investigation, in absence of which there can be no fair trial. It is
further contended that Exts.3 and 4 have been created
subsequently which reflects unfairness in the investigation. The
evidence of two independent seizure witnesses i.e. P.Ws.1 and 2
are not in consonance with the seizure list (Ext.1) and even they
have not stated about the presence of the appellants at the time
of preparation of seizure list and those two witnesses have not
been declared hostile by the prosecution and therefore, their
evidence is binding on the prosecution and cannot be sidelined.
He placed reliance in the case of Raja Ram -Vrs.- State of
Rajasthan reported in (2005) 5 Supreme Court Cases 272.
It is further submitted that even though P.W.3 and P.W.4, the
two official witnesses arrived at the spot at the same time, their
9
evidence relating to the position of car is completely different.
P.W.3 stated that the Ambassador Car bearing Regd. no.OR-02-
0200 was found parking near a road side Dhaba whereas P.W.4
stated that the Ambassador Car bearing Regd. No.OR-02-AE-
0200 was found coming towards Digapahandi and they detained
the vehicle. Mr. Mohapatra, learned counsel highlighted that
P.W.3 has not stated that the two persons who were sitting
inside the car were the appellants and he has not even stated
that ten bags containing ganja were found inside that car. It is
contended that when the car owner was not examined, it is
doubtful as to how the offending car came into the possession of
the appellants. It is argued that in the seizure list (Ext.1) as well
as in the prosecution report, it is not mentioned that ten bags
containing ganja were found on the rear seat of the car. The
learned counsel further argued that though P.W.3 and P.W.4
have stated that the brass seal was handed over to P.W.2 but
the evidence of P.W.2 is totally silent in that respect and even
the brass seal was not produced in Court either when the seized
contraband articles were produced for collection of sample and
its dispatch for the chemical examination or during trial. It is
further contended that after production of the contraband
articles in Special Court, there is nothing to show regarding its
10
production before the Magistrate for drawal of sample and there
is also nothing on record to show as to how the samples were
dispatched for chemical analysis. He argued that mandatory
provision under section 42(2) of the N.D.P.S. Act has not been
complied with and the copy of the information taken down in
writing by P.W.4 has not been sent to the immediate official
superior within stipulated hours, which has vitiated the search
and seizure. According to him, proving Ext.5 as it is, is not the
sufficient compliance of section 42(2) of the N.D.P.S. Act and the
material witnesses regarding receipt of the intimation letter
(Ext.5) by the I.I.C., E.I. & E.B., Berhampur have neither been
examined nor material documents relating to the receipt of such
letter by the concerned I.I.C. have been proved during trial and
everything has been subsequently stage managed to show the
compliance of section 42(2) of the N.D.P.S. Act. It is argued that
since punishment prescribed under the N.D.P.S. Act are very
stringent in nature, it was required on the part of the prosecution
to prove that the mandatory provisions under section 42(2) of
the N.D.P.S. Act are being duly complied with and in the case in
hand, the prosecution has failed to bring clinching materials on
record on several important aspects relating to search and
11
seizure and therefore, it is a fit case where benefit of doubt
should be extended in favour of the appellants.
Mr. Purna Chandra Das, learned Addl. Standing
Counsel on the other hand supported the impugned judgment
and contended that since the vehicle was detained and search
and seizure was made in a public place, therefore, section 43 of
the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is
applicable in the case. He further contended that both the
appellants were found in the offending car when it was detained
and the appellant no.2 was in the driver's seat and commercial
quantity of contraband ganja in ten jerry bags were found in it
and therefore, the learned trial Court is justified in convicting the
appellants under section 20(b)(ii)(C) of the N.D.P.S. Act.
Contention relating to unfair investigation
8. It is not in dispute that P.W.4 Sarat Ch. Bhanja, S.I.
of Excise conducted search and seizure on 18.02.2011 and he
also conducted investigation and submitted the prosecution
report on 28.03.2011. The investigation of a case under N.D.P.S.
Act is required to be carried out by a person who is absolutely
impartial, unbiased and unmotivated.
In the case of Mohan Lal (supra), it is held as
follows:-
12
"11. A fair trial to an accused, a constitutional
guarantee Under Article 21 of the Constitution,
would be a hollow promise if the investigation in
a NDPS case were not to be fair or raises serious
questions about its fairness apparent on the face
of the investigation. In the nature of the reverse
burden of proof, the onus will lie on the
prosecution to demonstrate on the face of it that
the investigation was fair, judicious with no
circumstances that may raise doubts about its
veracity. The obligation of proof beyond
reasonable doubt will take within its ambit a fair
investigation, in absence of which there can be
no fair trial. If the investigation itself is unfair, to
require the accused to demonstrate prejudice
will be fraught with danger vesting arbitrary
powers in the police which may well lead to false
implication also. Investigation in such a case
would then become an empty formality and a
farce. Such an interpretation therefore naturally
has to be avoided.
xx xx xx xx xx
14. In a criminal prosecution, there is an
obligation cast on the investigator not only to be
fair, judicious and just during investigation, but
also that the investigation on the very face of it
must appear to be so, eschewing any conduct or
impression which may give rise to a real and
genuine apprehension in the mind of an accused
13
and not mere fanciful, that the investigation was
not fair. In the circumstances, if an informant
police official in a criminal prosecution,
especially when carrying a reverse burden of
proof, makes the allegations, is himself asked to
investigate, serious doubts will naturally arise
with regard to his fairness and impartiality. It is
not necessary that bias must actually be proved.
It would be illogical to presume and contrary to
normal human conduct, that he would himself at
the end of the investigation submit a closure
report to conclude false implication with all its
attendant consequences for the complainant
himself. The result of the investigation would
therefore be a foregone conclusion."
In case of State by Inspector of Police -Vrs.-
Rajangam reported in (2010) 15 Supreme Court Cases
369, it is held as follows:-
"8. The short question which falls for
consideration of this Court is: whether P.W.6
who registered the crime could have
investigated the case or an independent officer
ought to have investigated the case?
9. The learned Counsel appearing for the
accused submitted that the controversy involved
in this case is no longer res integra. In Megha
Singh -Vrs.- State of Haryana : 1995
Criminal Law Journal 3988, this Court has
14
taken a categorical view that the officer who
arrested the accused should not have proceeded
with the investigation of the case. The relevant
paragraph reads as under:
"4....We have also noted another
disturbing feature in this case. P.W.3, Sri
Chand, Head Constable arrested the
accused and on search being conducted
by him, a pistol and the cartridges were
recovered from the accused. It was on his
complaint, a formal first information
report was lodged and the case was
initiated. He being complainant should
not have proceeded with the investigation
of the case. But it appears to us that he
was not only the complainant in the case
but he carried on with the investigation
and examined witnesses under Section
161 Cr.P.C. Such practice, to say the
least, should not be resorted to so that
there may not be any occasion to suspect
fair and impartial investigation."
10. The ratio of Megha case has been
followed by other cases. In another case in
Balasundaran -Vrs.-. State: (1999) 113 ELT
785 (Mad), the Madras High Court took the
same view. The relevant portion reads as under:
"16. Learned Counsel for the appellants
also stated that P.W. 5 being the
15
Inspector of Police who was present at
the time of search and he was the
investigating officer and as such it is fatal
to the case of the prosecution. P.W. 5,
according to the prosecution, was present
with P.Ws. 3 and 4 at the time of search.
In fact, P.W.5 alone took up investigation
in the case and he had examined the
witnesses. No doubt the successor to
P.W.5 alone had filed the charge sheet.
But there is no material to show that he
had examined any other witness. It
therefore follows that P.W.5 was the
person who really investigated the case.
P.W.5 was the person who had searched
the appellants in question and he being
the investigation officer, certainly it is not
proper and correct. The investigation
ought to have been done by any other
investigating agency. On this score also,
the investigation is bound to suffer and
as such the entire proceedings will be
vitiated."
11. In this view of the legal position, as
crystallized in Megha Singh's case (supra), the
High Court was justified in acquitting the
accused."
In case of Bata Khrushna Sahu -Vrs.- State of
Orissa reported in (2010) 45 Orissa Criminal Reports 606
16
wherein it has been held that P.W.8 who was the person who
conducted the search and allegedly recovered gunny bags M.Os.
I, II and III and therefore, the investigation of the case by P.W.8
himself renders the charge against the petitioner vulnerable.
In case of Panchanan Das -Vrs.- State of Orissa
reported in (2016) 65 Orissa Criminal Reports 702, it is
held that where stringent punishment has been prescribed,
ordinarily if a police officer is the informant in a case, in the
fairness of things, the investigation should be conducted by
some other empowered police officer or at least the investigation
should be supervised by some other Senior police officer as the
informant police officer is likely be interested in the result of the
case projected by him. However, if the informant police officer in
the exigencies of the situation conducts investigation and
submits final form, it cannot be per se illegal. The defence has to
prove in what way such investigation is impartial, unfair, biased
or has caused prejudice to the accused.
In the case in hand, the search and seizure took
place on 18.02.2011 and the prosecution report along with
connected papers were filed in the Court of learned Sessions
Judge -cum- Special Judge, Berhampur on 28.03.2011. When
P.W.4 received the reliable information, searched the vehicle and
17
seized the contraband articles, in all fairness of things, he should
not have investigated the matter without any exigencies of the
situation. P.W.4 has not stated anything as to what were the
exigencies of the situation on his part to conduct investigation
and to submit the prosecution report. There is nothing on record
as to why any other competent officer was not assigned the
investigation of the case. It is the duty of the prosecution to
bring on record by adducing cogent evidence regarding the
exigencies of the situation which compelled an officer conducting
search and seizure of contraband articles to carry forward with
the investigation and to submit the prosecution report or charge
sheet. In absence of such evidence, serious doubts would arise
with regard to the fairness and impartiality in the investigation.
Coming to the contentions raised by the learned
counsel for the appellants that Exts.3 and 4 have been created
subsequently which reflects unfairness in the investigation, it
appears that both these documents relate to compliance made
on the spot as per the provisions of section 50 of the N.D.P.S.
Act. There is no dispute that since it is a case of search of a car
from where the jerry bags containing contraband ganja were
recovered, section 50 of the N.D.P.S. Act would not be applicable
which relates to a case of a search of a person. (Ref:- State of
18
Punjab -Vrs.- Baldev Singh: 1999 Criminal Law Journal
3672; Kalema Tumba -Vrs.- State of Maharashtra and
another: (1999) 8 SCC 257; Gurbax Singh -Vrs.- State of
Haryana: (2001) 3 SCC 28; Madan Lal -Vrs.- State of H.P:
(2003) 7 SCC 465; Birakishore Kar -Vrs.- State of Orissa:
(2000) 9 SCC 541; and Saikou Jabbi -Vrs.- State of
Maharashtra: (2004) 2 SCC 186). P.W.4 stated that when he
asked the appellants to give option if they would like to be
searched in presence of Executive Magistrate or Gazetted Officer,
they opted to be searched by him. Ext.3 and Ext.4 are two
computer printed formats where blank spaces are provided for
inserting the names and addresses of the accused persons,
which have been filled up by P.W.4. However, in those formats,
it is already being printed that the accused was given the option
of search in terms of section 50 of the N.D.P.S. Act but he opted
to be searched by P.W.4. It is too difficult to believe that P.W.4
could prophesize that the accused persons might not be
interested to be searched by any other Gazetted Officer or a
Magistrate rather they would opt to be searched by him and that
is how he carried the computer forms printed in that way to the
spot. Such documents apparently have been prepared afterwards
in the office but those have been anti-timed to show compliance
19
of section 50 of the N.D.P.S. Act. The manner in which Exts.3
and 4 have been prepared, which were not necessary, reflects
unfair investigation by P.W.4. Therefore, since the investigation
conducted by P.W.4 was not fair and judicious, adverse inference
is to be drawn against the prosecution.
Evidence of independent witnesses vis-à-vis official
witnesses
9. Two independent witnesses have been examined in
the case and they are P.W.1 and P.W.2. Both the witnesses have
not stated anything against the appellants. P.W.1 has stated that
the spot is about 1 km. away from Iswari Dhaba and the spot
was P.W.D. Bunglow Chowk of Podamari. He further stated that
the bags were kept in front of P.W.D. I.B., which were seized
and carried to Berhampur. P.W.2 has also stated that ten bags of
contraband ganja were seized in front of P.W.D. I.B., Podamari.
None of these witnesses have stated anything regarding the
seizure of ten jerry bags containing contraband ganja from a car
in front of Iswari Dhaba. They have not been declared hostile by
the prosecution. If a witness resiles from his earlier statement
given either to police or before the Magistrate, the Public
Prosecutor can declare him as a hostile witness and with the
permission of the Court, can put any questions to him which
20
might be put in the cross-examination by the defence counsel in
view of section 154 of the Evidence Act. If the Public Prosecutor
fails to do so, the defence can take advantage from such
unchallenged testimony to strengthen the defence plea. Of
course, the Public Prosecutor can advance his argument that
even though a particular prosecution witness has not been
declared hostile but his evidence is not otherwise trustworthy
and should be discarded and then it is for the Court to decide the
acceptability of such argument. In case of Raja Ram (supra), it
has been held that when P.W.8 has not been declared hostile by
the Public Prosecutor for reasons only known to him, the
evidence of P.W.8 is binding on the prosecution and such
testimony cannot be sidelined. Basing on the ratio laid down in
the aforesaid Supreme Court judgment, I am of the humble view
that the evidence of P.W.1 and P.W.2 cannot be totally sidelined
and their evidence creates doubt with regard to the prosecution
case that the contraband ganja was seized in front of Iswari
Dhaba from a car and the appellants were found in the car.
P.W.3, the Excise Constable stated that the
Ambassador car was found parking near a road side Dhaba when
he along with P.W.4 reached there. P.W.4, on the other hand,
stated that the Ambassador car was coming from Digapahandi
21
side and they detained the vehicle in front of Iswari Dhaba. It
cannot be lost sight of the fact that both P.W.3 and P.W.4
proceeded together to the spot and reached at one point of time.
P.W.3 stated that two persons were found sitting inside the car
but he has not stated that the appellants were those two
persons. Even if it is held that the Public Prosecutor inadvertently
could not bring such things on record through P.W.3, but P.W.3
is silent in his chief-examination as to wherefrom the ten jerry
bags containing contraband ganja were found and seized? P.W.3
has stated that no contraband ganja was found in the dickey of
the car. He has stated the car registration number to be OR-02-
0200 whereas P.W.4 stated that the registration number of the
car was OR-02-AE-0200. P.W.4 stated that samples were
collected from the seized ganja bags before the learned S.D.J.M.,
Berhampur whereas from the cross-examination of P.W.3, it
appears that at the spot, from each bag sample of 50 grams was
drawn which were sealed with the seal of P.W.4. Even though
P.W.3 and P.W.4 stated that the brass seal was handed over to
P.W.2 but P.W.2 is totally silent in that respect. The zimanama of
the brass seal in favour of P.W.2 has not been proved by the
prosecution. The brass seal was also not produced before the
Court by P.W.2 for verification when the seized jerry bags
22
containing contraband ganja were produced in Court for drawal
of samples for chemical examination. It is the requirement of law
that when the contraband articles are seized and sealed with the
seal impression then the brass seal has to be left in the zima of a
reliable person under zimanama and instruction is to be given to
such person to produce it before the Court for verification at the
time of production of articles. The brass seal was also not
produced at the time of trial.
The order sheet dated 18.02.2011 of the learned
Special Judge, Berhampur indicates that when the appellants
were produced before him on that day and the Investigating
Officer prayed to draw samples to send the same for chemical
analysis, the learned Special Judge directed the learned S.D.J.M.,
Berhampur for drawing samples from the seized ganja. There is
no order sheet to show that the seized jerry bags containing
ganja were placed before the learned S.D.J.M., Berhampur
where samples were drawn. The forwarding letter of the learned
S.D.J.M., Berhampur dated 18.02.2011 indicates that the seized
properties were produced before him with a prayer to draw
samples and to send it for necessary chemical analysis. There is
nothing to show that the learned S.D.J.M., Berhampur verified
the seized jerry bags to be under proper seal at the time of its
23
production and that he broke open the seals of each jerry bags
and collected samples separately. Therefore, it is doubtful as to
whether the jerry bags after its seizure at the spot were properly
sealed.
Non-compliance of Section 42 of the N.D.P.S. Act
10. Adverting to the contentions raised by the learned
counsel for the appellants regarding non-compliance of the
provision under section 42(2) of the N.D.P.S. Act, let me analyse
the oral as well as documentary evidence adduced by the
prosecution in that respect.
P.W.4 has stated that on 17.02.2011 at 8.00 p.m. he
received information from reliable source about illegal
transportation of ganja in between Digapahandi and Luhagudi
State Highway and accordingly, he entered the fact in the
information register and gave a letter to the Inspector-in-charge,
E.I. & E.B., Berhampur, who directed him to detect the case.
P.W.4 proved the said information letter as Ext.5, his signature
thereon as Ext.5/1 and the endorsement of I.I.C., E.I. & E.B.,
Berhampur as Ext.5/2.
The information letter (Ext.5) reads as follows:-
To,
The Inspector in Charge,
E.I. & E.B., Unit-II (SD), Berhampur
24
Sub: Intimation regarding detection of N.D.P.S.
case.
Ref: Section 42(2) of N.D.P.S. Act.
Sir,
On dated 17.02.2011 at about 8.00 p.m., I
got information from reliable sources that illegal
transportation of Ganja (Cannabis) is going on
through 4 wheeler in between Digapahandi to
Luhagudi State Highway. Then I entered the details
of information in the information Register i.e. C-1.
I would therefore request you that necessary
instruction may kindly be passed to move for the
enforcement purpose.
Yours faithfully,
Sd/-Illegible
17.02.2011
(Sarat Chandra Bhanja)
S.I. of Excise, E.I. & E.B.
Unit-II, Berhampur
(Received the intimation letter from Sri S. Ch.
Bhanja, S.I. of Excise, E.I. & E.B., Berhampur.
Directed to detect the case successfully.)
Sd/-Illegible
17.02.2011
I.I.C., E.I. & E.B.
Berhampur
Under section 42(1) of the N.D.P.S. Act, if the
empowered officer receives reliable information from any person
relating to commission of an offence under the N.D.P.S. Act that
25
the contraband articles and incriminating documents have been
kept or concealed in any building, conveyance or enclosed place
and he reasonably believes such information, he has to take
down the same in writing. However, if the empowered officer
reasonably believes about such aspects from his personal
knowledge, he need not take down the same in writing. Similarly
recording of grounds of belief before entering and searching any
building, conveyance or enclosed place at any time between
sunset and sunrise is necessary under the second proviso to sub-
section (1) of section 42 of the N.D.P.S. Act if the concerned
officer has reason to belief that obtaining search warrant or
authorization for search during that period would afford
opportunity for the concealment of evidence or facility for the
escape of an offender. Section 42(2) of the N.D.P.S. Act states
that when an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the
proviso thereto, he shall send a copy thereof to his immediate
official superior within seventy-two hours.
In case of State of Rajasthan -Vrs.- Jag Raj
Singh @ Hansa reported in (2016) 64 Orissa Criminal
Reports (SC) 827 while discussing regarding the compliance of
section 42 of the N.D.P.S. Act in case of a vehicle which was
26
seized at the public place carrying contraband articles, it was
held that since the jeep cannot be said to be a public conveyance
within the meaning of Explanation to section 43 of the N.D.P.S.
Act, hence, section 43 was clearly not attracted and provisions of
section 42(1) proviso were required to be complied with and it
was further held that the aforesaid statutory mandatory
provisions having not complied with, the High Court did not
commit any error in setting aside the conviction.
The present is not a case where P.W.4 suddenly
carried out search in the vehicle at a public place rather
according to P.W.4, the reliable information was received on the
previous day in the evening hours. He has stated in the cross-
examination that on 17.02.2011 at 08.00 p.m. he received
information while he was in his office and he mentioned the
details of information received and the ground of his satisfaction
in the information register (C-1). He admits that his case diary
does not reveal that he sent the extract of C-1 register to his
Senior Officer. The intimation letter (Ext.5) according to him, did
not bear any letter number though it was entered in the dispatch
register. P.W.4 himself has come up with a case of compliance of
section 42 of the N.D.P.S. Act but from his evidence, it is clear
that he has not sent the copy of the details of reliable
27
information received and the ground of his satisfaction which
was mentioned in the information register (C-1) to the I.I.C., E.I.
& E.B., Berhampur. What P.W.4 has intimated to the I.I.C. vide
Ext.5 was only receipt of reliable information regarding illegal
transportation of ganja and entering the same in the information
Register C-1. Even if the intimation letter was received by the
I.I.C., E.I. & E.B., Berhampur who is the immediate official
superior of P.W.4 on the very day but according to my humble
view, this would not be sufficient compliance of section 42(2) of
the N.D.P.S. Act. P.W.4 was required to send the copy of the
details of reliable information received and the ground of his
satisfaction which was mentioned by him in the information
register (C-1) to the I.I.C., E.I. & E.B., Berhampur. The salutary
provision has a very useful purpose. Not only the superior official
is required to be aware about the receipt of the reliable
information by the concerned officer and his grounds of belief
beforehand but also by sending such documents to the superior
official, it would check any kind of tampering by the concerned
officer with the nature of information received and reduced to
writing. It would also safeguard the interest of an accused
against false implication.
28
The Hon'ble Supreme Court while discussing the
provision under section 42 of the N.D.P.S. Act in case of State
of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa
Criminal Reports (SC) 283 has been pleased to hold that the
object of N.D.P.S. Act is to make stringent provisions for control
and regulation of operations relating to those drugs and
substances. At the same time, to avoid harm to the innocent
persons and to avoid abuse of the provisions by the officers,
certain safeguards are provided which in the context have to be
observed strictly. Therefore, these provisions make it obligatory
that such of those officers mentioned therein, on receiving
information, should reduce the same to writing and also record
reasons for the benefit while carrying out arrest or search as
provided under the proviso to section 42(1). To that extent they
are mandatory. Consequently the failure to comply with these
requirements thus affects the prosecution case and therefore,
vitiates of the trial. The decision rendered in the case of Balbir
Singh (supra) was further considered by a five-Judge Bench in
the case of Karnail Singh -Vrs.- State of Haryana reported
in (2009) 44 Orissa Criminal Reports (SC) 183 wherein it
was held in the concluding paragraph as follows:-
"17. In conclusion, what is to be noticed is Abdul
Rashid did not require literal compliance with the
29
requirements of Sections 42(1) and 42(2) nor
did Sajan Abraham hold that the requirements
of section 42(1) and 42(2) need not be fulfilled
at all. The effect of the two decisions was as
follows:
(a) The officer on receiving the information (of
the nature referred to in sub-section (1) of
section 42 from any person had to record it in
writing in the concerned Register and forthwith
send a copy to his immediate official superior,
before proceeding to take action in terms of
clauses (a) to (d) of section 42(1).
(b) But if the information was received when the
officer was not in the police station, but while he
was on the move either on patrol duty or
otherwise, either by mobile phone, or other
means, and the information calls for immediate
action and any delay would have resulted in the
goods or evidence being removed or destroyed,
it would not be feasible or practical to take down
in writing the information given to him, in such a
situation, he could take action as per clauses (a)
to (d) of section 42(1) and thereafter, as soon
as it is practical, record the information in
writing and forthwith inform the same to the
official superior.
(c) In other words, the compliance with the
requirements of Sections 42 (1) and 42(2) in
30
regard to writing down the information received
and sending a copy thereof to the superior
officer, should normally precede the entry,
search and seizure by the officer. But in special
circumstances involving emergent situations,
the recording of the information in writing and
sending a copy thereof to the official superior
may get postponed by a reasonable period, that
is after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance of requirements
of sub-sections (1) and (2) of section 42 is
impermissible, delayed compliance with
satisfactory explanation about the delay will be
acceptable compliance of section 42. To
illustrate, if any delay may result in the accused
escaping or the goods or evidence being
destroyed or removed, not recording in writing
the information received, before initiating action,
or non-sending a copy of such information to the
official superior forthwith, may not be treated as
violation of section 42. But if the information
was received when the police officer was in the
police station with sufficient time to take action,
and if the police officer fails to record in writing
the information received, or fails to send a copy
thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation
of section 42 of the Act. Similarly, where the
31
police officer does not record the information at
all, and does not inform the official superior at
all, then also it will be a clear violation of section
42 of the Act. Whether there is adequate or
substantial compliance with section 42 or not is
a question of fact to be decided in each case.
The above position got strengthened with the
amendment to section 42 by Act 9 of 2001."
Ext.5 does not reveal as to the type of four wheeler
and its registration number in which the illegal transportation of
ganja was stated to be going on and when it is likely to arrive at
the spot where it was detected. The information that was
received at 08.00 p.m. while P.W.4 was at the Excise office was
to the effect that the illegal transportation was in between
Digapahandi and Luhagudi State Highway and he proceeded
towards Podamari with his staff at 4.30 a.m. i.e. about eight and
half hours after the receipt of reliable information. As per the
Google map, the distance between Digapahandi and Luhagudi
State Highway is only 30.1 kms. and Podamari comes in between
the two. If that was the distance factor, it is not understood as to
how even after receipt of the information at 08.00 p.m., P.W.4
left to the spot after so many hours and in spite of that he was
successful in getting the offending vehicle. In absence of any
previous information regarding the type of four wheeler and its
32
registration number and the time of arrival at the particular
place, it must have been daunting task in detecting the vehicle.
The evidence of P.W.3 and P.W.4 regarding detecting the
offending vehicle easily creates doubt about the prosecution case
from its beginning.
According to the prosecution case, the owner of the
vehicle namely Usharani Das was dead and her husband
submitted an affidavit with a copy of the death certificate of his
wife. The husband of the registered owner has not been
examined during trial. There is no evidence as to how the
offending vehicle came to the possession of the appellants.
Neither any driving licence nor any other personal belongings of
the appellants were found in the vehicle. When P.W.4 issued
letter to R.T.O. to supply particulars of the seized car, the R.T.O.
gave a letter enclosing the xerox copy of R.C. book which has
been marked as Ext.8/1 which shows that it is a 'non-transport
vehicle'. Thus the offending vehicle was not coming within 'public
conveyance'. Therefore, in view of the ratio laid down in case of
Jag Raj Singh @ Hansa (supra), the statutory mandatory
provisions of section 42 of the N.D.P.S. Act are required to be
complied with.
33
In view of the mandatory provisions of section 42 of
the N.D.P.S. Act, the Court is required not only to verify that the
reliable information was taken down in writing but also the
grounds of belief was also recorded as per the second proviso to
section 42(1) of the N.D.P.S. Act and copy of the same was sent
to the immediate official superior in view of sub-section (2) of
section 42 of the N.D.P.S. Act.
In a case of this nature where the prosecution is
required to prove the compliance of the mandatory provision
under section 42 of the N.D.P.S. Act, all the relevant documents
which are connected with such compliance are to be proved
before the trial Court in accordance with law and similarly all the
concerned witnesses should be examined in Court to prove the
vital aspect. In absence of proof of the oral as well as
documentary evidence relating to compliance of such provision,
the prosecution case should be viewed with suspicion.
11. In view of the forgoing discussions, I am of the
humble view that there is non-compliance of mandatory
provision of section 42(2) of the N.D.P.S. Act. When P.W.4 being
the officer conducting search and seizure has also investigated
the case and submitted the prosecution report and the
investigation is not fair and justified, the brass seal was not
34
produced in Court at the time of production of the seized articles,
the independent persons examined by the prosecution who have
not been declared hostile give a complete different picture
regarding detection of contraband ganja, 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 24th April 2019/Pravakar/RKM/Sisir/Sukanta