The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.255 of 1995 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 21ST August, 1995 passed by the learned Second Additional Sessions Judge, Cuttack in 2(a) C.C. Case No.330 of 1990 (Tr. No.24/4 of 1994) Damodar Dehuri ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.A.K. Sahoo, P. Panda & M.K. Panda (Advocates)
Legal Reasoning
For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH Date of Hearing : 03.07.2024 : Date of Judgment : 10.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 21ST August, 1995 passed by the learned Second Additional Sessions Judge, Cuttack in 2(a) C.C. Case No.330 of 1990 (Tr. No.24/4 of 1994). CRA No.255 of 1995 Page 1 of 7 The Appellant (accused) thereunder has been convicted for commission of the offence under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for five (5) years and pay fine of Rs.5,,000/ (Rupees five thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. Prosecution case is that on 19.08.1990 around 9 a.m. when the Sub-Inspector of Excise, (Intelligence Branch, Cuttack) (P.W.1) was patrolling at Nayabazar Block crossing along with Assistant Sub-Inspector of Police (P.W.2) and others, he found accused walking towards Gandhipalli from Nayabazar crossing holding a Brief Case. Raising suspicion upon such activity of the accused, he being detained, search was made. In course of search, the Brief Case being opened with the help of the key produced by the accused from the pocket of his trouser, it was found that the Brief Case was containing two packets wrapped in Telegu Newspaper. On opening the first packet, four kilograms of ganja was found to have been there whereas in the other three kilograms fifty grams of ganja was found. P.W.1 then drew samples separately from both the packets, each containing fifty grams of ganja and CRLA No.255 of 1995 Page 2 of 7 keeping the rest in the Brief Case seized all those articles under seizure list (Ext1). 3. The accused being arrested was forwarded in custody to the Court and the sample packets being sent for chemical analysis, report came in the affirmative that the contents were nothing but ganja. Finally Prosecution Report was submitted and the accused faced the trial being charged for commission of offence under section 20(b)(i) of the N.D.P.S. Act. 4. Learned counsel for the Appellant (accused) submitted that the prosecution evidence is wholly unsatisfactory to show that what was seized from the accused, i.e., the contents of the Brief Case were actually examined by the Chemical Examiner and that those were the contraband. In support of the same, he has invited the attention of this Court to the deposition of P.W.1 and contended that the procedure of P.W.1 has followed in collecting the sample and sending those for Chemical Analysis without routing it through the court is illegal. He further submitted that there is absolutely no evidence as regards the safe keeping of the sample packets and the residue contents of the Brief Case from the time of seizure till the dispatch for Chemical Analysis and production in court. He, therefore, submitted that with such evidence on record when give rise to grave doubt in mind as to CRLA No.255 of 1995 Page 3 of 7 whether the samples having been collected which are said to have been collected from the Brief Case had actually been sent for Chemical Analysis and those were analyzed by the Chemical Examiner in giving the report, the finding of guilt against the accused as has been returned by the Trial Court cannot be sustained. 5. Learned Additional Standing Counsel submitted that there is no such material to disbelieve the version of P.W.1 and his evidence as to the keeping of the samples and the residue contents of the Brief Case when has not been shaken, there arises no question of raising any doubt with regard to the same and no inference can be drawn as regards any tampering with the sample packets. 6. Keeping in view the submissions made, I have perused the impugned judgment of conviction passed by the Trial Court and have also extensively travelled through the evidence of all the prosecution witness (P.Ws.1 to 3). The documents admitted in evidence from the side of the prosecution have also been gone through. 7. The accused being arrested was forwarded to court on 19.08.1990. On that day, neither the sample packets nor the residue contents said to have been there in the Brief Case at the CRLA No.255 of 1995 Page 4 of 7 time of seizure were produced in Court. On 22.12.1990, the Prosecution Report was submitted and the learned S.D.J.M. took cognizance of the said offences. Thereafter, the record being transferred to the court of sessions on 15.07.1991 the learned Sessions Judge took cognizance of the offences. The case then continued in the said court and several times, orders were passed for production of the seized articles for being marked as material objects. On 17.11.1994 when the Investigating Officer (P.W.1) appeared for his examination, the same could not be completed as by then even the seized articles had not been produced. The trial being deferred to 22.12.1994 on that day, those articles were produced and the examination of P.W.1 was completed. The sample packets collected by P.W.1 were never placed before being dispatched for Chemical Analysis giving the scope to the court even to ascertain that those had been properly sealed and there was no mark of tampering with the same when ideally, this P.W.1 ought to have produced the sample packets and the residue contents of the Brief Case on the day of production of the accused and prayed for drawal of samples by the court for onward dispatch for Chemical Examination. P.W.1 has made no prayer at any time before the Court for collection of the sample at its end for Chemical Analysis. It is stated by P.W.1 that the seized articles including the sample packets which he had made after CRLA No.255 of 1995 Page 5 of 7 seizure was there in Excise Malkhana situated near Cuttack Collectorate and those sample packets were sent on 28.09.1990 for Chemical Analysis. The Malkhana Register has not been produced to prove that for all these period, the seized articles and also the sample packets had been kept there. This P.W.1 has also not so mentioned as regards keeping of the seized articles including the sample packets in the Case Diary which he has maintained. The seizure list does not give any indication as regards sealing of the seized articles and the sample packets used in the facie maile impression of brass seal and kept the same in Malkhana. The above exercise are not empty formalities but to ensure that there is no tampering with the so-called contraband and establish the nexus between the contents of the Brief Case seized and the samples examined. For the aforesaid discussion and reasons, this Court raises grave doubt over the prosecution case to hold that the contents from the bags recovered from the possession of the accused were nothing but Ganja. 8. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 21.08.1995 passed by the CRLA No.255 of 1995 Page 6 of 7 learned 2nd Additional Sessions Judge, Cuttack in 2(a) C.C. Case No.330 of 1990 (Tr. No.24/4 of 1994), are hereby set aside. Judge. (D. Dash), Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 22-Jul-2024 17:06:38 CRLA No.255 of 1995 Page 7 of 7