The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 175 of 1994 From order dated 21.04.1994 passed in S.T. Case No. 192 of 1993 of learned Sessions Judge, Sambalpur. Satyanarayan Verma ...… Appellant --------------- -Versus- State of Odisha ...…. Respondent Advocate(s) appeared in this case :- _______________________________________________________ For Appellant : M/s. A. Mohanty, P. Patnaik, S. Pradhan, S. Mohanty & C.R. Patnaik, Advocates For Respondent : Mr. S.N. Das, _______________________________________________________ CORAM: [Addl. Standing Counsel] MR. JUSTICE SASHIKANTA MISHRA JUDGMENT 10.07.2023 SASHIKANTA MISHRA, J. The appellant questions the correctness of the judgment passed by learned Sessions Judge, Sambalpur on 21.04.1994 in S.T. Case No.192 of 1993 whereby he was convicted for commission of the offence under Section 20(b)(i) of the NDPS Act and was sentenced to undergo Page 1 of 12 R.I. for four years and to pay fine of Rs.5,000/-, in default to undergo R.I. for further period of two years. 2. The prosecution case, briefly stated is that on 04.09.1993, the S.I. of police of Jharsuguda Police Station was performing patrolling duty near station chhaka along with the staff when he received reliable information of illegal possession of ganja by the appellant–accused in his house. He immediately proceeded to Kalimandir Road along with S.I., S.R. Mahapatra who was with him and carried out search of the house in presence of witnesses Ram Kumar Banchhar and Babu@Mohan. In course of search contraband ganja weighing 2 kgs 350 grams was found in a tin box, the possession of which the accused could not satisfactorily explain. The ganja was seized in presence of the witnesses and other formalities of search and seizure were conducted. The accused was arrested. The S.I. lodged a written report in this regard before the O.I.C. of Jharsuguada police station which led to registration of Jharsuguda P.S. Case No.147(4) of 1993, followed by investigation. Upon completion of investigation charge sheet was submitted against the accused for commission of the offence under Section Page 2 of 12 20(b)(i) of NDPS Act. The accused took the plea of denial and also of alibi claiming that he was not present at the spot at the time of so called search and seizure. 3. To prove its case prosecution examined four witnesses of whom, P.W.3 is the informant and I.O. of the case. P.W.1 is the accompanying S.I., P.W.2 is an independent witness and P.W.4 is the OIC of Jharsuguda police Station. Prosecution also proved three documents and one material object being the jerry bag contenting the tin box from its side. Two witnesses were examined on behalf of the defence and one document was exhibited. 4. After considering the evidence, oral and documentary learned Sessions Judge held that the witnesses clearly proved the recovery of ganja weighing 2 kgs. 350 grams from the house of the appellant–accused kept in a tin box. Learned Sessions Judge did not accept the contentions raised by the defence regarding non- compliance of the mandatory provisions of the NDPS Act and held that the charge was clearly established. On such findings learned Sessions Judge convicted the appellant and sentenced him as aforesaid. Page 3 of 12
Legal Reasoning
5. Heard Mr. Abhas Mohanty, learned counsel appearing for the appellant and Mr. S.N. Das, learned Additional Standing Counsel for the State. 6. Assailing the impugned order of conviction Mr. Mohanty would argue that the prosecution case as laid cannot be accepted because of non-compliance of the mandatory provision of Section 42 of the Act. He further contends that the independent witnesses who had accompanied the police party to the spot were never examined as witnesses. Moreover, one independent witness who was examined also turned hostile. Mr. Mohanty would further argue that there is also non-compliance of the provision under Section 55 of the Act inasmuch as the allegedly recovered contraband was not properly sealed, rather the evidence suggests that the same was tampered with. Lastly, Mr. Mohanty would argue that the seal used for sealing in the sample as well as the seized ganja was never produced or proved before the Court. 7. Per contra, Mr. S.N. Das would argue that this is not a case where the provision under Section 42 was not complied with but a case of delay in compliance thereof. Page 4 of 12 Therefore, the same cannot be treated as fatal to the prosecution case. As regards non-examination of the independent seizure witnesses, Mr. Das would argue that once the official witnesses, having no axe to grind against the appellant clearly proved the occurrence, non- examination of the so-called independent witnesses would be of no avail to the defence. According to Mr. Das the technical objections raised by the defence have been answered by the learned Sessions Judge and therefore, the impugned judgment does not warrant any interference. 8. As regards the non-compliance of Section 42 of the Act, it would be proper to refer to the said provision, as its stood then. The same is quoted herein below for immediate reference: 42. Power of entry, search, seizure and arrest without warrant or authorization- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is Page 5 of 12 or substance, empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder, of a licence for manufacture of manufactured drugs or psychotropic controlled substances granted under this Act or any rule or order made thereunder, such power shall be substances or Page 6 of 12 exercised by an officer not below the rank of sub-inspector. Provided further that if such 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 the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” A bare reading of the provision would show that the officer authorized to do so is entitled to search, seize and arrest without warrant any person by entering into a building between sunrise and sunset, after taking down the same in writing. Sub-section-2 provides that such information in writing has to be forthwith sent to his immediate official superior. In this regard, reference to the testimony of P.W.3 would reveal that he has not stated anything at all as regards taking down of the information received by him in writing. In paragraph-5 of his testimony, he says that he prepared the plain paper FIR at the place of recovery (Ext.2) and produced the same before the OIC along with all the connected papers Page 7 of 12 prepared by him as also the accused and the seized materials. Thus, this is a case were the OIC does not appear to have taken down the information received by him in writing prior to conducting the search but did so only after the entire process was over. Obviously, this is not what the statute intended and therefore, it cannot also be treated as a delayed compliance of Section 42. Even assuming for the sake of argument that it was delayed compliance then also, P.W.3 has not whispered a word as to why he did not forward the information in writing to his superior earlier and did so only after the entire process was concluded. A reading of the impugned judgment would reveal that the above ground was raised during trial, but learned Sessions has somewhat mechanically rejected the same on the ground that the ganja was not recovered from the person of the accused. The fact that Section 42 Cr.P.C. also applies to a dwelling house was not considered by the learned Sessions Judge. 9. As regards the effect of non-examination of the persons, who were witnesses to the so called seizure of the contraband at the spot, as already mentioned, the FIR refers to one Ram Kumar Banchhar and Babu@Mohan Page 8 of 12 who had accompanied the police party to the spot and in whose presence the ganja was seized. A perusal of the seizure list marked Exhibit-1/1 shows that said Ram Kumar Banchhar had signed on the seizure list. No explanation is forthcoming from the side of prosecution as to why he was not examined as a witness. Similarly, one Md. Yusuf was also supposedly an independent witness as per the version of P.W.3. His signature also finds place in the seizure list marked Exhibit-1/1. Said Md. Yusuf was examined but he turned hostile. It was therefore incumbent upon the prosecution to examine the other seizure witness in order to add sanctity to the evidence adduced by it. Of course, I am inclined to agree with the contentions raised by Mr.Das, learned Additional Standing Counsel that official witnesses need not always be disbelieved particularly, in the absence of anything to show that they had any axe to grind against the accused. But then in the instant case, P.W.3 admits that he had prior acquaintance with the accused as he was previously suspected to have been involved in a case of burglary and was brought to the police station for interrogation. P.W.3 also admits to have visited the house of the accused in Page 9 of 12 connection with enquiry of another case. In this background, it was imperative for the prosecution to lend credence to its case by examining the independent person available, which it chose not to do. Learned Sessions has not considered this aspect at all, rather accepted the prosecution case as gospel truth. 10. As regards the ground that the seized articles were not properly sealed, it would be apposite to refer to the provision under Section 55 of the Act as it stood them. The provision reads as follows:- “55. Police to take charge of articles seized and delivered-—An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” According to Mr. Mohanty there is no clear cut evidence as regards proper sealing of the seized articles at the spot. On the contrary there is clear evidence that the article was seized in the police station after the occurrence. In this regard, reference to the evidence of Page 10 of 12 P.W. 4 is relevant who stated that “Sri A.C. Rana (P.W.3) produced MO-I before me which was duly sealed by me.” This clearly shows that MO-1 had not been sealed earlier. P.W.4 further stated that he again put his personal seal on MO-1 and the sample packet without indicating anything else, which creates a doubt as to if the sample packet was sealed earlier or not. That apart, the seal which was used to seal the article was also never produced before the court below. This is therefore a case where the provision under Section 55 of the Act was not strictly complied with. 11. There is no doubt that the provisions of the NDPS Act are stringent in nature. It is for such reason that the legislature in wisdom has provided certain safeguards so that the provisions of the Act are not misused. Learned Sessions Judge appears to have been swayed away by the effect of drugs on the society. But then in criminal jurisprudence, it is ultimately hard evidence which matters. A person cannot be convicted of an offence unless the prosecution comes forward with evidence that is readily acceptable and credible. In view of what has been discussed hereinbefore, this Court is constrained to Page 11 of 12 observe that the prosecution case is not free from reasonable doubts as also for non-compliance of the mandatory provisions, the benefit of which has to go to the accused. Further, the court below has not appreciated the evidence on record in the proper perspective for which the impugned judgment of conviction and sentence is rendered unsustainable in the eye of law. 12. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The accused being on bail, his bail bonds be discharged. Before parting, this Court would like to place on record its appreciation for the able assistance rendered by Mr. Abhas Mohanty, learned counsel for the appellant and Mr. S.N.Das, learned Additional Standing Counsel for the State. (Sashikanta Mishra) Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Jul-2023 10:05:14 Page 12 of 12