Orissa High Court
Binod Pradhan vs State Of Orissa on 23 November, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 181 Of 2012
From the judgment and order dated 31.01.2012 passed by the
2nd Addl. Sessions Judge, Cuttack in 2(a) C.C. Case No.80 of
2010.
------------------------------
Binod Pradhan ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Debashis Panigrahi
P.C. Dehury
Smt. A. Panigrahi
S. Acharya
Miss. S. Swain, A. Panda
For State: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
CRLA No. 210 Of 2012
Prafulla Kumar Sahu ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Jashobanta Dash
For State: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
-----------------------------
2
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing & Judgment: 23.11.2017
---------------------------------------------------------------------------------------------------
S. K. SAHOO, J.The appellant Binod Pradhan in CRLA No.181 of 2012 and appellant Prafulla Kumar Sahu in CRLA No.210 of 2012 faced trial in the Court of learned 2nd Addl. Sessions Judge, Cuttack in 2 (a) C.C. Case No.80 of 2010 for the 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 of transporting 141 kgs. of ganja in different gunny bags in Maruti 800 car having front side number plate bearing registration no. OR 05 A 5978 and registration no. OR 05 F 1057 (at the back side of same number plate) on 28.09.2010 at about 5.20 p.m. of NH No.5 at Mahanadi bridge near Sikharpur.
The appellants were found guilty of the offence charged and accordingly convicted thereunder and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default, to undergo rigorous imprisonment for one year each.
2. The prosecution case, in short, is that on 28.09.2010 at about 4.10 p.m. P.W.3 Amarendra Kumar Jena, Inspector of Excise, Unit-II, Cuttack along with his staff were checking 3 vehicles at Sikharpur on Mahanadi bridge and they noticed one Maruti 800 car bearing Registration No. OR 05 A 5978 moving towards Cuttack city in a suspicious manner. In spite of the signal of P.W.3, the driver of the Maruti car did not stop and on the instruction of P.W.3, the staff of P.W.3 who were at a distance of 100 meters away stopped the vehicle. P.W.3 and his staff rushed to the spot and on verification, it was found that there were polythene packets inside the Maruti car and smell of ganja was emanating from it. Appellant Prafulla Kumar Sahu was driving the Maruti car and appellant Binod Pradhan was sitting nearer to him in the front seat. P.W.3 procured one independent witness from the spot and he asked the appellants to exercise their option regarding their examination by the Executive Magistrate or a Gazetted Officer in compliance of section 50 of the N.D.P.S. Act and the copies of the option letters were also served on the appellants and their signatures were obtained in token of acknowledgement. Both the appellants exercised their written options separately giving their consent to be searched by P.W.3. After observing all the formalities of search, P.W.3 searched the Maruti car and from the rear seat of the car, he recovered seven numbers of jerry bags and in each jerry bag, there was one paper cartoon containing ganja. He opened the 4 jerry bag as well as the paper cartoons and obtained one gram of sample ganja from each of the paper cartoons for testing purpose and it showed the physical structure of ganja. P.W.3 also tested the sample ganja by small test with rubbing it on his palm and he also burnt the ganja to inhale the smoke. From the aforesaid tests coupled with the departmental narcotic training knowledge including special training from Narcotic Bureau, Calcutta and his fifteen years of service experience, P.W.3 came to hold that all the seven paper cartoons contained ganja. P.W.3 then weighted each of the jerry bags with paper cartoon containing ganja which was marked as Sl. Nos.1 to 7. Sl. Nos.1 and 2 each weighted 15 kgs. excluding the weight of jerry bags and paper cartoon and Sl. Nos.3, 4, 6 and 7 each contained 23 kgs. of ganja excluding the weight of jerry bags and paper cartoons and Sl. No. 5 contained 19 kgs. of ganja excluding weight of jerry bag and paper cartoon. The total weight of ganja was found to be 141 kgs. and the weighment chart was prepared by P.W.3.
The appellants could not produce any licence/authority for transportation and possession of the commercial quantity of contraband ganja and they also
confessed that they had used fake registration number on the 5 Maruti car while transporting ganja. P.W.3 seized the Maruti car, the registration number plates of the vehicle, seven jerry bags and paper cartoons containing ganja under seizure list Ext.1/2 and he supplied copies of the seizure list to the appellants who received the same after putting their signatures. All the jerry bags having paper cartoons containing ganja were paper sealed with impression of the personal brass seal of P.W.3 and brass seal impression was also given on the seizure list and the personal brass seal was handed over in the zima of witness Laxmidhar Sahu (P.W.1) under zimanama Ext.5/1. P.W.3 proceeded to Chauliaganj police station to keep the seized articles in the safe custody of police malkhana but the I.I.C. of Chauliaganj police station was on duty outside and the P.S. malkhana was under renovation work for which P.W.3 could not keep the seized articles in the said P.S. malkhana and he proceeded to Markat Nagar police station under whose jurisdiction the excise malkhana was located. P.W.3 handed over the seized articles to I.I.C. S.S. Tripathy of Markat Nagar police station who received the seized property in the P.S. malkhana vide P.S. malkhana no.15 dated 28.09.2010. The appellants were arrested after the grounds of arrest were explained to them and they were produced on the next day i.e. 29.09.2010 before 6 the learned S.D.J.M., Sadar, Cuttack along with the seized properties after taking out the same from the malkhana in charge of Markat Nagar police station. P.W.3 requested the Court for drawal of samples of the seized ganja for chemical examination and accordingly, the samples were drawn from each of the jerry bags and the learned S.D.J.M., Sadar, Cuttack sent the total seven drawn samples under the seal impression of the Court to SDTRL, Bhubaneswar for chemical analysis and report and the rest of the ganja were kept in the Sessions Court malkhana. P.W.3 received the chemical examination report which revealed that all the seven samples were found to be ganja (cannabis). P.W.3 ascertained from the office of the RTO, Bhubaneswar that registration no.OR 05 A 5978 was issued against another person, the owner of a Rajdoot motor cycle and the other registration no.OR 05 F 1057 which tallied with the chassis and engine number of the seized Maruti car was issued against the owner Chitta Ranjan Samatray. The I.O. on further enquiry came to know that the owner of the Maruti car was dead and the widow of the deceased owner had sold away the Maruti car to one Sanjay Kumar Biswal. P.W.3 issued notice to Sanjay Kumar Biswal to produce the papers relating to the seized vehicle but he avoided despite receipt of the notice. After 7 completion of investigation, P.W.3 submitted the prosecution report not only against the appellants but also against Sanjay Kumar Biswal.
3. The defence plea of the appellants is one of denial.
4. During course of trial, in order to prove its case, the prosecution examined three witnesses.
P.W.1 Laxmidhar Sahu did not support the prosecution case for which he was declared hostile by the prosecution and cross-examined.
P.W.2 Arjun Mallik was the Excise constable attached to E.I. and E.B., Unit II, Cuttack and he stated about the detention of the vehicle and its search and seizure of the contraband ganja in jerry bags.
P.W.3 Amarendra Kumar Jena was the Inspector of Excise, Unit II, Cuttack who not only effected search and seizure but also is the investigating officer of the case.
The prosecution exhibited fifteen documents. Ext.1/2 is the seizure list, Ext.2/1 is the option letter given to the appellant and Exts.3/1 and 4/1 are the options given by the appellants, Ext.5/1 is the Zimanama of brass seal, Ext.6/1 is the sketch map prepared at the spot, Ext.7 is the separate sheet containing impression of brass seal, Ext.8 is the inventory list, 8 Ext.9 is the weighment chart, Ext.10 is the requisition by P.W.3 for acceptance of seized articles, Ext.11 is the written prayer of P.W.3 for drawal of sample, Ext.12 is the chemical examination report and Exts. 13 to 15 are the attested copies of certificates showing experience.
No witness was examined on behalf of the defence.
5. The learned trial Court after analyzing the evidence on record has been pleased to hold that despite being subjected to strenuous cross-examination, P.W.2 and P.W.3 have stood stout and save some minor discrepancies, nothing substantial has been brought out from them so as to shake their credibility. The learned trial Court further held that the defence contention that the exclusive and conscious possession of the accused persons over the contraband articles has not been established cannot be accepted. The learned trial Court further held that there is no infirmity relating to the safe custody of the seized property in the malkhana of Markat Nagar police station which is nearest to the office of P.W.3 as I.I.C. of Chauliaganj police station was not available in the police station and malkhana of police station was under renovation at the relevant point of time.
6. Mr. Joshobanta Das, learned counsel appearing for the appellant Prafulla Kumar Sahoo contended that out of the 9 three witnesses examined by the prosecution during trial, the independent witness has not supported the prosecution case and the conviction of the appellants is mainly based on the statements of the two official witnesses and in this case, the officer who conducted search and seizure, also conducted investigation of the case and submitted final prosecution report which was not proper and justified. Learned counsel further submitted that the brass seal of P.W.3 which was stated to have been handed over to P.W.1 was not produced before the learned S.D.J.M., Sadar, Cuttack when the seized contraband articles were produced for verification and the provision under sections 52 & 57 of the N.D.P.S. Act have not been complied with. He further contended that the Malkhana register of Markatnagar police station was not produced nor any officer from the said police station was examined to state about the safe custody of the seized ganja before it was produced in Court. The learned counsel for the petitioner relied upon the decision of this Court in case of Bayamani Mandinga -Vrs.- State of Orissa reported in 2016 (I) Orissa Law Reviews 831 and another decision of the Hon'ble Supreme Court in the case of Gurbax Singh -Vrs.- State of Haryana reported in A.I.R. 2001 Supreme Court 10 1002 and contended that it is a fit case where benefit of doubt should be extended to the appellants.
Mr. Debasis Panigrahi, learned counsel appearing for the appellant Binod Pradhan adopted the submissions which were advanced by Mr. Jasobanta Das.
Mr. Priyabratha Tripathy, learned Addl. Standing Counsel appearing for the State on the other hand contended that even though the independent witness has not supported the prosecution case but since the learned trial Court has found the evidence of two official witnesses to be reliable and trustworthy and there is no ambiguity in the search and seizure, therefore, the learned trial Court has rightly placed reliance on their testimony. Learned counsel for the State further contended that merely because the officer who conducted search and seizure, investigated the case and submitted charge sheet per se does not vitiate the search and seizure in absence of any prejudice being caused to the appellants. It is further contended that even if the seal was not produced in Court at the time of production of the seized articles but P.W.3 has stated about the sealing the contraband articles at the spot and it was also produced in Court in a sealed condition before the learned S.D.J.M., Sadar, Cuttack and the seals were broken by the learned S.D.J.M. and the 11 samples were prepared and therefore, mere non-production of the personal brass seal of P.W.3 cannot be a ground to disbelieve the entire prosecution case. Learned counsel for the State further submitted that neither section 52 nor section 57 of the N.D.P.S. Act is mandatory in nature, moreover P.W.3 has stated as to why the seized articles were not kept in the nearest police station i.e. Chauliaganj police station as the malkhana of the said police station was under renovation and the I.I.C., Chauliaganj police station was out in some official duty. It is further submitted by the learned counsel for the State that even though the malkhana register has not been produced but since Ext.10 reflects that the seized articles were handed over to the I.I.C. of Markat Nagar police station who received it and put the malkhana entry number under his seal and signature and when the articles were taken out on the next day from the malkhana to be produced before the Court, the exit entries also find place in Ext.10, therefore, the non-production of the malkhana register or the non-examination of the officer in charge of malkhana or the Inspector in charge of Markat Nagar police station would no way create any doubt relating to the safe custody of the contraband articles in any manner before its production on the next day in the Court of learned S.D.J.M., Sadar, Cuttack. 12
7. Adverting to the contentions raised by the learned counsel for the appellants as well as the learned counsel for the State, it appears that it was a case of chance detection. There was no earlier reliable information before P.W.3 of any vehicle carrying contraband ganja. The evidence of P.Ws.2 & 3 rather reveals that on 28.09.2010 while they were performing patrolling duty in checking the vehicles at Sikharpur on Mahanadi bridge, they detained one Maruti 800 vehicle on suspicion and thereafter, the formalities of search and seizure were conducted.
Law is well settled that in a case of this nature, even though the independent witness to the search and seizure does not support the prosecution case during trial, if the evidence of the official witnesses appears to be reliable and trustworthy, the Court can act upon such evidence. Even though the officials to the search and seizure should make every endeavour to conduct the search and seizure in presence of the independent respectable persons of the locality for credibility on such aspect but when the independent witnesses do not come forward to support the prosecution case during trial, the Court should not hesitate to act upon the reliable evidence of the official witnesses otherwise there would be travesty of justice.
13
P.W.3 has stated that when the vehicle was detained, the two appellants were found inside the Maruti Car and the appellant Prafulla Sahoo was in the driver's seat whereas the appellant Binod Pradhan was sitting on the front seat nearer to the driver. The written option of search in presence of the Executive Magistrate and Gazetted Officer was also given and it appears that both the appellants gave their written options to be searched by P.W.3. The written options given by the appellants have been marked as Ext.3/1 and Ext.4/1. Both the official witnesses i.e. P.W.2 and P.W.3 have stated that when search of the vehicle was made, seven jerry bags containing ganja in paper cartoons were found. P.W.3 after conducting some test, come to a prima facie conclusion that the contents were ganja and thereafter, the ganja was weighed and with the help of weighing balance and tools, the weighment chart (Ext.9) was prepared and the total weight of ganja was found to be 141 Kgs. Both the official witnesses have stated that after putting the seal impression on the seized ganja packets as well as on the seizure list Ext.1/2, the personal brass seal of P.W.3 was handed over to P.W.1 Laxmidhar Sahoo.
P.W.1 has denied to have received any brass seal of P.W.3 in Zima though he has admitted his signature Ext.5 in the 14 zimanama. The zimanama Ext.5/1 indicates that the brass seal of P.W.3 was handed over to P.W.1 in presence of witnesses and also the appellants and the signatures of P.W.1, P.W.2, P.W.3 and the appellants have also been proved on the zimanama. P.W.2 and P.W.3 have also stated about such aspect. The specimen brass seal impression also finds place on the zimanama. Even though P.W.1 has not supported the prosecution case regarding taking of zima of the brass seal of P.W.3 but in view of the available materials on record, I am of the view that the prosecution has proved that the personal brass seal of P.W.3 was handed over to P.W.1.
8. The next contention of the learned counsel for the appellants that the brass seal was not produced in Court when the contraband articles were produced on the next day of the occurrence appears to be correct. On a plain reading of the order sheet of the learned S.D.J.M., Sadar, Cuttack dated 29.09.2010, it appears that the Investigating Officer produced seven jerry bags and the seals were broken in the presence of the learned S.D.J.M. and the samples were drawn and the broken seals were kept in a separate envelope and the samples were sent to SDTRL, Bhubaneswar for chemical analysis and rest of the seized 15 articles were kept in the Sessions Court malkhana in safe custody.
In the case of Bayamani Mandinga -Vrs.- State of Orissa reported in 2016 (I) Orissa Law Reviews 831, it is held that there is no evidence that the specimen seal impression which was given on the seized articles was produced before the Court at the time of production of the seized articles for verification. It is also the requirement of law that when the contraband articles are seized and sealed with the seal impression and 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. If the brass seal remains with the person who has effected search and seizure, then chance of tampering cannot be ruled out. It was further held in that case that even during trial also, the brass seal which is alleged to have been given in the zima of P.W.3 was also not produced.
Even though on the basis of the evidence of P.W.2 and P.W.3 as well as zimanama, it is accepted that the brass seal of P.W.3 was given in zima of P.W.1 as per zimanama Ext.5/1 but there is no evidence that any instruction was given to P.W.1 to produce it before the Court at the time of production of the 16 seized articles for verification and in fact it has also not been produced before the Court for verification.
The question now comes for determination is whether for non-production of the brass seal in Court when the seized articles were produced, the entire prosecution case relating to the safe custody of the contraband ganja has to be discarded.
Sub-section (3) of section 52 of the N.D.P.S. Act states that every person arrested and article seized under sub- section (2) of sections 41, 42, 43 or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station or the officer empowered under section 53 of the N.D.P.S. Act.
In the case in hand, P.W.3 has stated that after conducting search and seizure at about 8.00 p.m., he proceeded to Chauliaganj police station to keep the seized articles in the safe custody of police malkhana so as to comply section 55 of the N.D.P.S. Act but since the I.I.C. of Chauliaganj police station was on outside on duty and P.S. malkhana was under
renovation, he could not keep the seized articles in the said police station malkhana. Therefore, it is evident that attempt has been made by P.W.3 to comply with the provision under section 17 52 of the N.D.P.S. Act but under the compelling circumstances, the seized articles could not be stored in the malkhana of Chauliaganj police station as the renovation work was under
progress. P.W.3 then proceeded to Markat Nagar police station under whose jurisdiction the excise malkhana was located and it was handed over to I.I.C., S.S. Tripathy of Markat Nagar police station. It has been elicited in the cross-examination that Jagatpur police station was approximately six kms. away from Sikharpur Chhak and Madhupatna police station was at a distantce of 4 to 5 kms. from Sikharpur Chhak and Lalbag police station is 50 meters away from the office of P.W.3 whereas Markat Nagar police station is 5 kms. away from his office and the excise malkhana is located at Sector-6 of CDA, Cuttack. Though P.W.3 has not produced the seized ganja in sealed condition in the other police stations but has taken it to Markat Nagar police station, Cuttack which is at distance of about 5 kms. away from his office and 15 kms. away from the spot at Sikharpur, I am of the view that on that ground, it cannot be said that the appellants are prejudiced in any manner. 'Nearest police station' as appears in sub-section 3(a) of section 52 of the N.D.P.S. Act means such police station where there is proper facility to keep the accused and the seized articles in safe 18 custody. Where there is no such provision, merely because it is the nearest, the seized articles cannot be kept there otherwise there would be a question mark on the safe custody itself. Moreover, section 52 of the N.D.P.S. Act has been held to be directory in nature.
9. Section 57 of the N.D.P.S. Act states that whenever any person makes any arrest or seizure under the Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all particulars of such arrest or seizure to his immediate official superior.
P.W.3 has stated that he has not intimated to his higher authority nor taken their permission for detection of the case.
Coming to the compliance of section 57 of the N.D.P.S. Act, in case of Gurbax Singh -Vrs.- State of Haryana reported in A.I.R. 2001 Supreme Court 1002, Hon'ble Supreme Court has held that it is true that provisions of sections 52 and 57 are directory and violation of these provisions would not ipso facto violate the trial or conviction, however, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles.
19
Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State fairly submits that there is no evidence on record regarding compliance of section 57 of the N.D.P.S. Act. Therefore, on the available material on record, it is apparent that the I.O has not followed the procedure prescribed under section 57 of the N.D.P.S. Act of making full report of all the particulars of arrest and seizure to his immediate official superior.
10. So far as keeping of contraband articles after its seizure in Markat Nagar police station is concerned, P.W.3 has stated that he handed over the seized articles to I.C.C. S.S. Tripathy who received the seized property vide malkhana entry no.15 dated 28.09.2010 and he has proved the signature of the receiving officer and also proved the exit entry vide Ext.10/4 relating to taking of the seized properties from P.S. malkhana for its production in Court and Ext.10 contains the malkhana serial number as well as the signature of the Inspector in charge of Markat Nagar police station to have received the seized articles and signature of S.I. of Markat Nagar police station who handed over the seven sealed packets to P.W.3 on 29.09.2010 at about 9.00 a.m. and also the signature of P.W.3 to have received the seven sealed packets from the S.I. of Markat Nagar police station. In absence of any cross-examination in that respect, 20 merely on the ground of non-production of Malkhana register or non-examination of any official from the said police station, it cannot be a ground to discard the prosecution case in toto relating to the safe custody of the seized ganja particularly on the face of Ext.10. I have already held that the personal brass seal of P.W.3 was given in the zima of P.W.1 after executing the zimanama. The seized articles were kept in Markat Nagar police station malkhana in a sealed condition and the seals were intact when the seized articles were produced in Court on the next day. The seals were broke open and samples were collected. Therefore, on the hypothetical argument of the learned counsels for the appellants, the safe custody of the seized ganja before its production in Court cannot be doubted. Each case has to be judged on its own facts and circumstances and ratio decided in one case cannot be universally applied to the other cases bereft of its facts otherwise there would be perversity in the approach of the Court to arrive at a right conclusion. Mechanical approach to adopt the ratio decided in one case in the other one without looking into the factual aspects of the two cases is not only improper but quite unjustified. Therefore, on the available materials on record, I am of the view that prosecution has successfully proved that from the conscious and exclusive 21 possession of the appellants, seven bags of contraband ganja were seized and the total weight of such ganja came to 141 kilograms which is of commercial quantity. The prosecution has also proved that after the seizure, the seized jerry bags were sealed properly and it was brought to the Markat Nagar police station and produced at 9.00 p.m. on the same day before the Inspector in charge and kept in the malkhana of the Markatnagar police station and it was taken out on the next date i.e. on 29.09.2010 at 9.00 a.m. and produced before the learned S.D.J.M., Sadar, Cuttack who found the jerry bags in sealed condition and broke open the seal and collected sample ganja. By proving the chemical examination report, it was also proved that the sample packets were found to be ganja (cannabis) which comes under section 2(iii)(b) of the N.D.P.S. Act.
11. Coming to the contentions raised by the learned counsels for the appellants that the officer who conducted search and seizure, also conducted investigation of the case and submitted the prosecution report which was not proper and justified, 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 22 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 case of State of Rajasthan -Vrs.- Kishore reported in 1996 Supreme Court Cases (Criminal) 646, it is held that it would not cast doubt on the prosecution case proved by trustworthy and reliable evidence even if the investigating officer committed irregularity and illegality during investigation.
In the present case, in absence of any material to suspect the investigation by P.W.3 as unfair, biased and impartial and in absence of anything that the informant-cum- investigating officer was personally interested to get the appellants convicted, I am not inclined to accept that since P.W.3 conducted search and effected seizure and proceeded with the investigation of the case to submit the final prosecution report, 23 the entire investigation and submission of final prosecution report is vitiated in the eye of law.
12. Therefore, in spite of non-compliance of the directory provision of section 57 of the N.D.P.S. Act, when all other aspects of the prosecution case have been clearly proved by adducing reliable and cogent evidence of the official witnesses to show that the appellants were transporting commercial quantity of ganja without any authority in Maruti 800 car, I find no illegality or infirmity in the impugned judgment and order of conviction passed by the learned trial Court and sentence imposed therein.
Accordingly, both the criminal appeals being devoid of merits, stand dismissed.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 23rd November, 2017/Sukanta/Kabita