Mr. P.K. Maharaj, ASC None JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GA No.13 of 1997 From the order dated the 09.03.1996, passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in G.R. Case No.140 of 1991. ------------------ State of Orissa …. Appellant -versus- Binod Bihari Sahu …. Respondent For Appellant For Respondent CORAM: : : Mr. P.K. Maharaj, ASC None JUSTICE V. NARASINGH DATE OF HEARING : 31.10.2023 DATE OF JUDGMENT:21.11.2023 V. Narasingh, J. 1. 2. 3.
Legal Reasoning
Heard Mr. Maharaj, learned ASC for the Appellant. None appears for the Respondent. This Appeal at the instance of the State is filed under Section 378(1)(3) of the Cr.P.C. assailing the judgment of acquittal dated 09.03.1996 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in G.R. Case No.140 of G.A. No.13 of 1997 Page 1 of 14 1991 acquitting the Respondents of the charges under Section 20(b)(i) of N.D.P.C. Act. 4. The principles governing the exercise of power in an appeal against acquittal is worth reiterating before adverting to the factual matrix of the case at hand. 5. In Mrinal Das & Others vs. the State of Tripura, 2011 (9) SCC 479, the apex Court has extensively dealt with the scope of an Appellate Court to interfere with an Appeal against acquittal. 6. The guiding principles in an Appeal against acquittal and the power of the Appellate Court to “re-appreciate, review or reconsider evidence and interfere with an order of acquittal was stated in paragraph-42 of the judgment of the Apex Court in the case of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 which was referred to in the judgment of the Apex Court in the case of Mrinal Das (Supra). “42.....The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal G.A. No.13 of 1997 Page 2 of 14 against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review its own conclusion. the evidence and to come to (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 7. Thus on the touchstone of the law laid down by the Apex Court, the contention of the learned Public Prosecutor has to be examined as to whether the case at hand merits interference, with the impugned judgment of acquittal. 8. The Respondents were charged under Section 20(b)(i) of N.D.P.C. Act. and it is the case of the prosecution that on 05.04.1991, the I.O. received an information that the accused- respondent was dealing in ganja business in his village Ladugaun under Koksara Police Station. Accordingly, he made a station diary entry proceeded to the house of the accused-respondent and he found one tin box with two gunny bags containing ganja weighing 56 k.gs and he seized the same from the house of the G.A. No.13 of 1997 Page 3 of 14 accused-respondent. Since the accused-respondent did not produce any authority or license, the I.O. seized the ganja and arrested the accused and took up the investigation. After completion of the investigation, charge sheet was submitted under Section-20(b)(i) of the NDPS Act for possessing contraband to the tune of 56 kgs of ganja. 9. The case of the defence was one of complete denial and pleaded not guilty. 10. Eight witnesses were examined on behalf of the prosecution out of which P.W.8 is the I.O. 11. In the Judgment of acquittal, the learned Court on an analysis of the evidence held that the I.O. (P.W.8) has not made any requisition to any gazetted officer before conducting the house search. P.W.8 thus admitted non-compliance of Section-50 of the NDPS Act. 12. And, P.W.8 admitted to have made a station diary entry but not submitted the same to his higher Authority. 13. Learned counsel for the State-Appellant, Mr. Maharaj submitted with vehemence that the trial Court has committed an illegality in acquitting the accused on the ground of non- compliance of section-42 of the NDPS Act. 14. It is stated that the learned Sessions Judge has not taken into consideration the seizure of 56 kg of ganja from the conscious and exclusive possession of the accused-respondent and also not accepting the statement of official witnesses as well as independent witnesses. Hence, the impugned judgment is liable to set aside. G.A. No.13 of 1997 Page 4 of 14 15. It is the contention of the learned counsel for the State that the findings of the learned trial Court are based on surmises and conjectures and militate against the weight of materials on record and states that in the case at hand, the materials on record unerringly point to the guilt of the accused-Respondent and the only conclusion that is possible on the basis of evidence on record, is that the Respondents is guilty of committing the alleged offence. Hence, the judgment of acquittal is unsustainable. 16. To fortify their allegation against the Respondent, the prosecution relied on the evidence of eight witnesses. In the facts of the present case, P.W.8 the I.O. is the most material witness and on scrutiny of whose evidence, the judgment of acquittal was passed. 17. The charge against the accused was of commission of offence under Section 20(b)(i) of NDPS Act for possessing contraband (ganja) to the tune of 56 kgs which was allegedly recovered from the house of the Respondent on search. 18. In a case under Section 20(b)(i) of the NDPS Act, law is well settled that adherence to the provisions of Section 42 and 50 of the NDPS Act are mandatory. 18.A. For convenience of ready reference, both the Sections are extracted hereunder; “42. Power of entry, search, seizure and arrest without warrant or authorisation.- (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 G.A. No.13 of 1997 Page 5 of 14 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 empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or 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 V-A 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: G.A. No.13 of 1997 Page 6 of 14 [Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be 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 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. xxx xxx xxx for so requires, “50.Conditions under which search of persons shall be conducted.-— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person such person without take unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. G.A. No.13 of 1997 Page 7 of 14 (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] 19. In the case at hand, admittedly, the seizure is from the house of the Respondent and not from his possession. As such, the provision of Section 50 of the NDPS Act ex-facie does not come into play. And, on this count, this Court finds force in the submission of the learned counsel for the State that non- adherence to Section 50 of the NDPS Act by the learned Trial Court is a patent error of appreciation of law. 20. And, the statement of the I.O.- P.W.8 runs thus; X-Examination by the defence. “4. I have not mentioned the time at which I received the reliable information excepting mentioning in Ext.4 that I received in the morning of 5.4.91. I have made an entry to that effect in the Station Diary the copy of the same has not been sent to the Court. I have not got the authority from the Magistrate to search the house of the accused. My investigation does not disclose that G.A. No.13 of 1997 Page 8 of 14 due to what reason I could not obtain a search warrant from the Magistrate having jurisdiction. There are many gazette officers at Koksara. I have not requisitioned the services of any gazette officer before condicting house search or at the time of search, recovery and seizure. I have not asked the accused or any of the inmates of the house whether they want their house should be searched in presence of a gazette officer or a Magistrate.” [Ext.4 - plain paper F.I.R] xxx xxx xxx “6. It has not been mentioned in Ext.3 the seizure list the size of the rooms and the quantity of ganja alleged to have been recovered from which room. The seizure list does not disclose that a tin box containing ganja from one room and two gunny bags containing ganja was recovered from another room. I have not written in Ext.4 that ganja was there in an old tin box in one room and two gunny bags containing ganja from another room. I have not prepared any chart showing taking of sample ganja from tin box as well as from the two gunny bags. My case diary does not show as to when the seized ganja was forwarded to Court. My case diary dies not disclose as to where the seized ganja was kept. The same is also regarding the sample ganja. I cannot say if at all the seized ganja were forwarded to court or not. xxx xxx xxx” (emphasized) [Ext.3 - Seizure List] 21. From the evidence of the I. O., it is abundantly clear that there has been patent violation of Section 42 and 52-A of the G.A. No.13 of 1997 Page 9 of 14 NDPS Act. For convenience of the ready reference, Section 52-A of the NDPS Act is extracted hereunder; to
Decision
“52-A. Disposal of seized narcotic drugs and psychotropic substances.— (1) The Central Government may, having regard to the hazardous nature, vulnerability theft, substitution, constraints of proper storage space or any other relevant considerations, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances by notification in the Official Gazette, specify such narcotic drugs or psychotropic substances or controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) 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 section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic controlled drugs, substances or conveyances] or the packing in which they are packed, country of orgin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the substances, [narcotic psychotropic psychotropic substances, drugs, G.A. No.13 of 1997 Page 10 of 14 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. (3) Where an application is made under sub- section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances], and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.] 22. The import of violation of Section 42 of the NDPS Act has been laid down by the Apex Court in a plethora of decision. 23. In the case of Karnail Singh vrs. State of Haryana, (2009) 8 SCC 539 Constitution Bench of the Apex Court dealing with the provisions of Section 42 of the NDPS Act held thus in paragraph-35 (SCC pp. 554-55); “35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did G.A. No.13 of 1997 Page 11 of 14 Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. G.A. No.13 of 1997 Page 12 of 14 total information received, before (d) While non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” (emphasis supplied) It is apt to note here that in a case based on prior information as in the case at hand, the procedure as noted by the Apex Court in paragraph-a above has to be adhered to and the same has been reiterated in the case of Darshan Singh vs. State of Haryana, (2016) 14 SCC 358 wherein it has been held that G.A. No.13 of 1997 Page 13 of 14 non-adherence to the procedure under Section 42(1) of the NDPS Act entitles acquittal. 24. On an analysis of the materials on record, keeping in view the contours of this Court in exercising jurisdiction in a judgment of acquittal, in the facts of the present case, it is established that there has been patent violation of the mandatory provision of Section 42 of the NDPS Act as well as the provision of Section 52-A of the NDPS Act. Since the judgment has been passed on a cogent analysis of materials on record vis-a-vis the mandatory prescription of law and its patent violation as noted in the impugned judgment and there being no perversity in appreciation of either fact or in application of law save and except the observation relating to Section 50 of the NDPS Act, this court does not find any merit in this Appeal which is accordingly dismissed. 25. The bail bond of Respondent stands cancelled and sureties be discharged. 26. Accordingly, the G.A. stands disposed of. Judge ( V. Narasingh ) Orissa High Court, Cuttack, Dated the, 21st November, 2023/Soumya/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Nov-2023 20:47:14 G.A. No.13 of 1997 Page 14 of 14