Orissa High Court
Chand Mohammad vs State Of Odisha on 21 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.734 of 2024 & JCRLA NO.93 of 2024
(An appeal U/S.374(2) of the Code of Criminal
Procedure, 1973 against the judgment passed by Dr.
Indu Sharma, 1st Additional Sessions Judge-Cum-Special
Judge (NDPS), Berhampur in 2(a)CC Case No.110 of
2022 (N) arising out of Excise EI & EB (SD), Berhampur,
Ganjam PR No.827 of 2022-23).
Chand Mohammad ... Appellant
(In CRLA No.734 of 2024)
-versus-
State of Odisha ... Respondent
Mohammad Akil ... Appellant
(In JCRLA No.93 of 2024)
-versus-
State of Odisha ... Respondent
For Appellants : Mr. S.K. Dash, Advocate
(In CRLA No.734 of 2024)
Mr. K. Nayak, Amicus Curiae
(In JCRLA No.93 of 2024)
For Respondent : Mr. A.K. Apat, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING &JUDGMENT:21.03.2025(ORAL)
G. Satapathy, J.
1. Since these two appeals arise out of one conviction in the same case record, both the appeals are heard together and disposed of by way of this common judgment.
CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 1 of 20
2. The appellants Chand Mohammad in CRLA No.734 of 2024 and Mohammad Akil in JCRLA No.93 of 2024 assail their conviction and sentence as recorded by the learned 1st Additional Sessions Judge-Cum- Special Judge (NDPS), Berhampur, Ganjam by the impugned judgment dated 19.04.2024 passed in 2(a)CC Case No.110 of 2022 (N).
By the aforesaid impugned judgment, the appellants have been convicted for commission of offence punishable U/Ss.20(b)(ii)(C) of NDPS Act and sentenced to undergo Rigorous Imprisonment (RI) for ten(10) years with payment of fine of Rs.1,00,000/- (Rupees One Lakh), in default whereof, to undergo RI for a further period of one(1) year with the benefit of set off of the pre trial detention against the substantive sentence.
3. The prosecution case in brief is on 22.11.2022, PW2-the Inspector of Excise, EI & EB Unit- II (SD), Berhampur and staff while performing patrolling duty in Aska road, Berhampur noticed one while Tata Sumo Gold bearing Regd. No.MP-04TB-1610 CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 2 of 20 at Ankushpur going speedily. Accordingly, PW2 and staff detained the Tata Sumo vehicle, recovered Contraband Ganja in two separate jerry bags along with the appellant Chand Mohammad who was driving the vehicle and the appellant Mohammad Akil as the helper and PW2, thereafter, by procuring local witness PW3 weighed and seized the Contraband Ganja by collecting samples from it. PW2 also sealed the Contraband Ganja by her personal brass seal and handed it over to PW1- the Excise Constable and arrested the accused persons after observing all formalities, so also seized the Tata Sumo Gold vehicle and other documents and forwarded the appellants to the Court along with the seized articles which on weighment had come to 80Kgs. Further, PW2 successfully prayed to the Court for drawing of samples, and accordingly, the learned SDJM, Berhampur drew the samples by the order of the learned Special Judge and the samples were sent to Assistant Chemical Examiner, Divisional Excise Chemical Testing Laboratory (SD) (DECTL), Berhampur. CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 3 of 20 3.1. On this incident, an advance Prosecution Report (PR) was drawn which subsequently on investigation culminated in submission of final PR No.827 of 2022-23 by PW2, which ultimately resulted in trial in the present case after the appellants pleaded not guilty to the charge for commission of offence U/Ss.20(b)(ii)(C) of NDPS Act.
3.2. In support of its case, the prosecution examined altogether 3 (three) witnesses vide PWs.1 to 3; proved 23 (Twenty-three) documents under Exts.P1 to P-23 and identified 3 (three) material objects under MOI-III as against no evidence whatsoever by the defence. The plea of the appellants in the course of trial was denial simplicitor and false implication. 3.3. After analyzing the evidence on record upon hearing the learned counsel for the parties, the learned trial Court convicted the appellants for commission of offence punishable Under Section 20(b)(ii)(C) of the NDPS Act and sentenced each of them to the punishment indicated in the first paragraph. Being aggrieved with the judgment of CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 4 of 20 conviction and sentence, the appellants have preferred two separate appeals.
4. In the course of hearing of these two appeals, Mr. Soubhagya Kumar Dash, learned counsel for the appellant-Chand Mohammad in CRLA No.734 of 2024 submits that not only the prosecution evidence is shaky, but also it has failed to prove the charge against any of the appellants and the prosecution evidence on record never establishes any of the mandatory compliance as required under NDPS Act. Mr. Dash further submits that the prosecution has failed to comply the provisions of Sections 42 and 52-A of NDPS Act, which is clearly appearing from the evidence and, therefore, the conviction of the appellants being unsustainable is required to be quashed/set-aside. In echoing the aforesaid submission, Mr. Karunakar Nayak, learned counsel appearing as Amicus Curiae for the appellant Mohammad Akil in JCRLA No.93 of 2024 submits that the independent seizure witness has not at all supported the prosecution case and the evidence of other official witnesses does not inspire confidence and, CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 5 of 20 thereby, the appellant should have been acquitted. It is, accordingly, prayed for the appellants to acquit them of the charge by allowing the appeals.
4.1. On the other hand, Mr. A.K. Apat, learned Additional Public Prosecutor, however, submits that the evidence on record clearly establishes the recovery of Contraband Ganja from the conscious possession of the appellants and, thereby, the appellants have been rightly convicted for the offence. It is, further, submitted by the learned Additional Public Prosecutor that since the recovery of the Contraband Ganja having been established against the appellants, the onus of proving their innocence squarely rest on them in view of the provision of Section 54 of the NDPS Act which has not at all been discharged by the appellants and, therefore, the conviction of the appellants cannot be faulted with. Accordingly, learned Additional Public Prosecutor prays to dismiss the appeal.
5. After having considered the rival submissions upon perusal of record, since the appellants assail the impugned judgment of conviction CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 6 of 20 by praying to acquit them of the charge for the offence U/Ss.20(b)(ii)(C) of NDPS Act, this Court has a duty to re-appreciate the evidence on record to find out the legal sustainability of the impugned judgment. On adverting to the evidence on record, it appears that PW3 being the independent witness to seizure has not at all supported the prosecution case and his cross- examination by the prosecution yield no result, but the cross-examination of PW3 favours the defence inasmuch as PW3 has admitted in his cross- examination that he signed on blank printed papers and nothing was seized in his presence from the conscious possession of the appellants on the date of occurrence and he signed the papers at the behest of Excise Officials.
6. There is no quarrel over the position of law that the evidence of official witness deserves equal importance provided it is worthy of acceptance and in this case, after the independent witness of PW3, the prosecution case entirely built upon the evidence of official witnesses of PWs.1 and 2, who are none other CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 7 of 20 than the raiding officials and one of them i.e. PW2 has conducted the investigation. On coming to the evidence of PW2, it transpires that the Contraband Ganja was transported in a Tata Sumo Gold vehicle bearing Regd. No.MP-04-TB-1610 and the appellants are found as occupants of said vehicle, but the admitted evidence of the prosecution case is that the Excise Officials while performing patrolling duty had detected the Contraband Ganja which is a chance recovery, but it appears that the learned trial Court has based conviction on the basis of evidence of witnesses with regard to possession of the Contraband articles by the appellants. However, the seized Contraband articles have never been produced before the Court. In order to overcome the prove of recovery of Contraband Ganja, the prosecution has taken the recourse of Section 52-A of the NDPS Act by bringing evidence on record by way of exhibiting the letter of SDJM, Berhampur along with destruction certificate under Exts.P-21 and P-22. The fact remains that Section 52-A of the NDPS Act provides the procedure for disposal of seized Narcotic CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 8 of 20 Drugs and Psychotropic Substance and Section 52-A(4) of the NDPS Act lays down that every Court trying an offence under the Act shall treat the inventory, the photographs (Narcotic Drugs and Psychotropic Substance, Control Substance or conveyance) and any list of samples drawn under Sub-Section(2) and certified by the Magistrate as primary evidence in respect of such offence. Section 52-A(2) of NDPS Act lays down interalia for any Magistrate to certify the correctness of the inventory so prepared; or certifying the photographs of such Drugs or substances taken in his presence as true; or certifying the correctness of any list of samples so drawn in his presence. It is, accordingly, stated in Section 52-A(2) of NDPS Act that where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Sec.53, the officer referred to in Sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 9 of 20 conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in Sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of:-
"(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn."
Further, Section 52-A(3) of NDPS Act also makes it very clear that where an application is made CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 10 of 20 under Sub-section (2), the Magistrate shall as soon as may be allow the application.
7. Appreciating the evidence on record with regard to recovery and production of Contraband Ganja before the Special Court and drawing samples of it on the backdrop of the aforesaid provision of Section 52-A of the NDPS Act to receive the same as a primary evidence in the trial, this Court considers it apt to extract the relevant evidence of PW2 which has been stated in paragraphs-6 and 7 of the deposition, which reads thus:-
"6. As per direction of the Special Judge, the article was produced before the SDJM, Berhampur. "The SDJM verified the seal of jerry bag and broke upon the seal and drew 2 sample packets of 50 grams from 2 nos. of jerry basta marked A & B."
7. As per direction of Court, I drew two packets each containing 50 grams of ganja and samples marked as „A1 to B1‟ and the duplicate packets marked as „A2 to B2‟. The sample packets along with the forwarding letter were sent to DECTL, Berhampur for chemical examination through Constable Basant Ku. Barik (PW1)."
The aforesaid evidence as narrated above does not disclose the manner in which the samples CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 11 of 20 were collected nor it reveal that the learned SDJM had certified the correctness of the inventory so prepared nor it discloses taking of the photographs of such Contraband in presence of the learned SDJM and certifying the photographs as true. There is also no evidence to certify the correctness of any list of samples so drawn. The evidence on record, however, does not disclose about the production of recovered and seized Contraband articles before the Court concerned, much less the remaining samples after sending the representative samples to DECTL, Berhampur was ever produced before the Court.
8. The primary evidence for proving possession of the Narcotic Substance would always be the seized substance itself. In absence of certification as required under 52-A of the NDPS Act to get over the production of original seized Contraband articles, the prosecution is not helpless to prove the recovery and seizure of Contraband articles which can be done either by producing the seized Contraband articles or examining the witness to the recovery, but in this case CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 12 of 20 the independent witness to the search, seizure and recovery has become hostile to the prosecution case and even his examination by prosecution with the leave of the Court yield no result to prove the search, seizure and recovery. In this case, the prosecution has not led any evidence to prove the destruction of seized Contraband articles by establishing the compliance of provision of Sec. 52-A of the NDPS Act except by exhibiting two documents under Exts. P-21 and P-22 which are in fact a letter issued by learned SDJM, Berhampur indicating furnishing of original certificate under Sec. 52-A of NDPS Act to the Special Judge, Berhampur and the certificate purportedly issued under Sub-Section 3 of Sec. 52-A of the NDPS Act, but Ext. P- 22 refers to a enclose inventory, digital photographs and video taken by Smt. R.Santoshi Reddy, however, neither any inventory nor digital photographs nor video has been produced before the Court in addition the said R.Santoshi Reddy has not been examined by the prosecution to establish this fact. In the situation, mere exhibiting the certificate without anything more such CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 13 of 20 as, the inventory so prepared of seized materials which should contain description, quantity, mode of packing (including mode of conveyance), marks, numbers such other identifying particulars; the photographs taken in presence of Magistrate with his certificate and the samples so drawn with certification of Magistrate, is not sufficient proof of compliance of Sec. 52-A of the NDPS Act and in absence of evidence justifying compliance of Sec. 52-A of the NDPS Act, the destruction or disposal of the seized Contraband articles cannot be accepted, which assumes great significance casting serious doubt in the genuineness of the prosecution case, especially when neither the seized Contraband Ganja nor the remaining samples after dispatch of the samples to Chemical Laboratory are produced before the Court, inasmuch as no explanation has been offered by the prosecution in this regard. It is once again reiterated that mere drawing of samples in presence of Magistrate without anything more as required is not sufficient and substantial compliance of Sec. 52-A of the NDPS Act. CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 14 of 20
9. In Bharat Aambale vrs. State of Chhatisgarh; 2025 SSC Online SC 110, the Apex Court with regard to compliance of Sec. 52-A of the NDPS Act in Paragraph-35 has held thus:-
"What this provision entails is that, where the seized substance after being forwarded to the Officer empowered is inventoried, photograph and thereafter samples are drawn therefrom as per the procedure prescribed under the said provisions and the Rules/Standing Order(s), and the same is also duly certified by a Magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word "shall" indicates that it would mandatory for the Court to treat the same as primary evidence if the twin conditions are fulfilled being (i) that the inventory, photographs and samples drawn are certified by the Magistrate AND (ii) that the Court is satisfied that the entire process was drawn in consonance and substantial compliance with the procedure prescribed under the provision and its Rules/Standing Order(s)".
It is, however, true that the Apex Court in the aforesaid decision has further observed that even where the bulk quantity of the seized materials is not produced before the Court or happens to be destroyed or disposed of in contravention of Sec. 52-A of the NDPS Act, the same CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 15 of 20 would be immaterial and have no bearing on the evidentiary value of any inventory, photographs or samples of such substance that is duly certified by a Magistrate and prepared in terms of the said provision. It is more than clear in this case that the prosecution has brought no evidence to show any inventory or photographs taken by it, so also no Magistrate has certified any photographs or inventory so prepared or list of samples so drawn which are mandates of compliance of Sec. 52-A of the NDPS Act. Law is very clear that before any proposed disposal/destruction of the seized Narcotic Drugs, the mandate of Sec. 52-A of the NDPS Act requires to be duly complied with starting with an application to that effect and a Court should be satisfied with such compliance while deciding the case, the onus is entirely on the prosecution in a given case to satisfy the Court where such issue arises for consideration. In this case, the same has not been done and there is absolutely no compliance of Sec. 52-A of the NDPS Act which renders the prosecution case vitiated.
CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 16 of 20
10. In addition, it is found from the evidence of PW2 that drawing and sending of samples on the same day to DECTL, Berhampur i.e. on 22.11.2022, but the cross-examination of PW1 at paragraph-15 discloses that he had kept the sample packets in the custody of the IO overnight before producing it to the office of DECTL, Berhampur for chemical examination. This only adds to the suspicion inasmuch as when the samples were drawn and handed over to PW1 for its deposit at DECTL, Berhampur, it was never meant to be kept under the custody of the IO. Additionally, the CE Report under Ext.P20 discloses about receipt of samples on 23.11.2022 and, therefore, this Court is of the considered view that the custody of the samples was not properly explained to rule out any suspicion and tampering inasmuch as to how the samples were sealed has not been revealed in evidence of PW2 because it is not stated by him whether the samples were sealed or not. Moreover, it is testified by PW1 that after weighing of Ganja, the informant kept the Ganja in the bags and resealed by affixing paper slip with the brass seal of CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 17 of 20 Gitanjali Sahu (PW2) having signatures of the accused persons, witnesses and informant and such brass seal was given in his zima after due execution of zimanama, but such brass seal was never produced before the Court which only adds to the cause of suspicion. Law is very clearly well settled that when punishment prescribed for offences is higher, the proof must be stricter and the prosecution has to produce evidence to eliminate all suspicion. Further, the Chemical Examination report under Ext.P-20 does not disclose as to whose seal was affixed and how it is verified which further contributes to the discrepancies and, therefore, the safe custody of the samples or seized Ganja was not established in consonance with Section 55 of NDPS Act which provides for the safe custody of the Contraband articles. Since the prosecution has not established any semblance of compliance of Sec. 52-A of the NDPS Act and no Contraband articles has been produced in the Court during trial, the contention as raised by the learned Addl. PP to place the burden on the appellants-accused to rebut the presumption of CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 18 of 20 conscious possession of Contraband articles in terms of Sec. 54 of the Evidence Act merits no consideration.
11. From a cumulative analysis of evidence on record and discussion made hereinabove, this Court is of the considered opinion that neither the provision of Sec. 52-A of the NDPS Act has been complied with nor the recovery of the Contraband Ganja from the exclusive possession of the appellants has been proved through any independent witness nor the safe custody of the Contraband articles has been established, which assumes great significance on the face of admitted evidence of keeping the custody of the samples with PW2-the raiding officer overnight without any explanation and it only leads to an inference that prosecution has not been able to prove its case against the appellants beyond all reasonable doubt by leading clear, cogent and unimpeachable evidence. The only consequence therefore remains is that the guilt of the appellants has not been established for the offence U/Ss.20(b)(ii)(C) of NDPS Act in the standard of proof beyond all reasonable doubt.
CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 19 of 20
12. In the result, CRLA No.734 of 2024 and JCRLA No.93 of 2024 stand allowed on contest, but in the circumstance, but there is no order as to costs. Consequently, the impugned judgment of conviction and order of sentence passed by the learned 1st Additional Sessions Judge-Cum-Special Judge (NDPS), Berhampur, Ganjam in 2(a)CC Case No.110 of 2022 (N) are hereby set-aside.
Since the appellants are in custody, they be set at liberty forthwith, if their detention is otherwise not required in any other case. Further, the warrant of release on appeal in Form No.(M)78 of GR & CO, (Criminal) Vol-II be immediately sent to the Officer-in- Charge of the concerned jail through e-mail or any other faster communication mode in view of the Rule 155 of the GR & CO, (Criminal) Vol-I. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 24-Mar-2025 13:50:37 Orissa High Court, Cuttack, Dated the 21st day of March, 2025/Subhasmita CRLA No.734 of 2024 & JCRLA No.93 of 2024 Page 20 of 20