Orissa High Court
Laxman Jena vs State Of Orissa on 22 February, 1995
Equivalent citations: 1995CRILJ3400
JUDGMENT D.M. Patnaik, J.
1. The appellant assails his conviction under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for Short, 'the Act') and sentence of RI for ten years and fine of rupees one lakh, in default to undergo RI for two years and six months.
2. Prosecution case is, on 3-1 -1991 PW5, then Officer-in-Charge of Nayagarh Police Station, received a reliable information that the appellant was possessing opium in his residential house at village Harekrushanapur under Nayagarh Police Station in the district of Puri. After making a station diary entry in regard to this information he along with PW2, the SI of Police, proceeded to the village around 3 a. m., reached the house of the appellant and gave his identity and the purpose of the search. He also asked the appellant of his option to be searched in presence of a Gazatted Officer, but the appellant did not opt for any such search and, therefore, PW5 in presence of the witnesses conducted the search himself. Entering the house along with the appellant he recovered four polyethylene packets each containing different quantities of opium and the total on weighment was found to be Kg. 1.750 grams from inside the bed room of the appellant. After observing all formalities of search and seizure relating to taking of samples etc. he investigated into the case, examined witnesses and after completion of investigation submitted charge-sheet. The appellant was tried and convicted as stated above.
The appellant denied the prosecution allegation. In his 313 statement he pleaded that on account of the rivalry between one Narasingha Khanda, an influnential person of the village, he was falsely implicated at his instance. He denied the search of his house in question and the consequent seizure of any opium from the house.
3. Mr. P. K. Mishra, learned counsel for the appellant, challenges the order of conviction mainly on three grounds i. e. (i) admittedly when there were other occupants of the house in question, the prosecution of the appellant alone for allegedly possessing that quantity of opium was illegal, (ii) noncompliance of the mandatory provisions with regard to search and seizure as provided under Sections 42 and 50 of the Act, and (iii) discrepancy in the quantity of the samples collected from the opium seized at the spot and the quantity received by the Chemical Analyst.
Mr. Debasis Das, learned counsel for the State, on the other hand, supports the judgment of conviction and futher submits that there has been due compliance of the provisions of the Act for which there should not be any interference by this Court.
The respective contentions need examination.
4. Out of five witness examined by the prosecution, PWs. 1 and 3 the two independent witnesses did not support the prosecution case with regard to search and seizure. Therefore, we are left with the evidence of PWs. 2, 4 and 5 all of them being the police officers of whom PW5 is the IO.
Admittedly PW5 was the empowered officer competent to carry on investigation as provided under the Act. It is also admitted by him that he had prior information that the appellant possessed certain quantity of opium in his residential house and this prior information he entered in the station diary entry No. 57 dated 3-1-91.
Section 42 of the Act predicates that any empowered officer is he has reason to believe from his personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapet IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or consealed in any building, conveyance or enclosed place, he may between sunrise and sunset enter into and search any such building, conveaynce or place and effect seizure of such substance. The proviso to Sub-section (1) of Section 42 mandates that, if the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording grounds of his belief. Sub-section (2) of that Section further provides that if the officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior officer.
5. The submission of Mr. Mishra that in the present case PW5 though admittedly searched the house at the dead of the night, the prosecution has not proved that PW5 recorded any such reason for such search at that hour of the night and this noncompliance, according to Mr. Mishra, has vitiated the entire proceeding.
The Apex Court, in the case of State of Punjab v. Balbir Singh, , ruled that non-compliance of the mandatory provision under the proviso to Sub-section (1) of Section 42 would vitiate the trial.
It is found from para 25 of the cross-examination of PW5 where he admitted to have conducted the search at that odd hour of the night because he apprehended that the appellant might conceal the article. He further admitted that except mentioning about the information in the station diary entry he did not prepare any written paper giving out the reasons of his search before conducting the aforesaid search.
It is submitted by the learned counsel for the State that the evidence of PW5 that he had received certain information sufficiently proved that he recorded this in the station diary entry. This submission cannot de accepted in the absence of any document itself and admittedly the station diary entry having not been proved by the prosecution so as to accept the contention of the learned counsel for the State. Therefore, it is legitimate to draw the conclusion that PW5 did not record any reason for conducting the search at that odd hours of the night and he being the empowered officer having not complied with the mandatory provisions, as per provisions to Sub-section (1) of Section 42 of the Act, the search and seizure are found to be illegal.
6. With regard to second contention of Mr. Mishra about the non-compliance of the provisions of Section 50 of the Act, PW5 in para 4 of his examination-in-chief stated to have ascertained from the appellant if he wanted to be searched in presence of a Gazetted Officer. Even accepting his version that he had asked the accused for his option, the option being only for a search before the Gazetted Officer the same is partial compliance of the law and this Court has already held in the case of Gopal Reddy v. State, (1994) 7 Orissa Cri. Rep. 820, that such partial offer seeking option amounts to noncompliance of the provisions contained in Section 50 of the Act. This also therefore renders the search unsustainable.
7. Though the appeal should succeed on the two points already discussed above, yet it was pointed out by learned counsel for the appellant as to the discrepancy with regard to the quantum of sample of the opium sent for chemical examination. The forwarding report of the SDJM indicates that altogether four packets were sent out of which three packets contained 0.14 grams of sample opium whereas, the 4th sample packets weighed 0.05 grams. The chemical examination reports (Ext.5) shows that the quantum of sample opium received by the Chemical Examiner was 0.10 grams is one packed and the rest three packets contained 0.05 grams each. That apart, the result of examination as is found from the report was that only the packets 'A' and 'B' were found containing opium whereas, the other two packets marked 'C and 'D' did not contain any morphine or any alkaloids. Doubt arises, if samples were taken at one point of time from the some substance and separately sealed in four packets, there is no reason as to why two of the packets, on examination, would show presence of morphine and the other two packets would not show anything at all. This also makes the prosecution case doubtful for which the appellant is entitled to an acquittal.
8. In the result, the appeal succeeds. The lower Court judgment is set aside and the appellant is acquitted of the charge. He be set at liberty forthwith.