The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.59 of 2002 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 5th August, 2002 passed by the learned Special Judge, Cuttack in G.R. Case No.458 of 2001 (41T/2001). Sanjay Behera ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.R.N. Mohanty, M.K. Panda, P. Panda, A. Pattnaik & A.K. Jena (Advocates) For Respondent - Mr.S.K. Nayak, Additional Government Advocate
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing : 20.05.2024 : Date of Judgment : 21.06.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 5th August, 2002 passed by the learned Special Judge, Cuttack in G.R. CRLA No.59 of 2002 Page 1 of 8 Case No.458 of 2001 (41T/2001) corresponding to Chauliaganj P.S. Case No.36(2) of 2001. The Appellant (accused) thereunder has been convicted for commission of the offence under section 20(b) 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 ten (10) years and pay fine of Rs.1,00,000/ (Rupees One Lakh) in default to undergo further rigorous imprisonment for two (2) years for commission of the said offence. 2. PROSECUTION CASE:- On 27.03.2001, he Inspector-in-Charge (I.I.C.) of Chauliaganj Police Station (P.W.5) during noon hour received an information from reliable sources that the Appellant (accused) had kept huge quantity of ganja in his house. Having entered this fact in the Station Diary Book maintained at the P.S., the I.I.C. (P.W.5) sent an extract of the same to the Additional Superintendent of Police, Cuttack (P.W.4) and thereafter he with the Assistant Sub- Inspector (A.S.I.) of Police (P.W.1) and other staff went to Village- Nehru Palli where the house of the accused was situated. They surrounded the house of the accused and asked the local persons to remain present to be witnesses. The house, being surrounded by the people of the locality, the police personnel were not CRLA No.59 of 2002 Page 2 of 8 allowed to conduct the search of the house. The matter, being immediately informed to the Additional S.P. (P.W.4) and the Sub- Collector, being contacted to depute an Executive Magistrate to conduct the raid, the Additional S.P. (P.W.4) and the Executive Magistrate (P.W.3) arrived at the spot around 1.158 p.m. The I.I.C. (P.W.5) apprised the matter to the Executive Magistrate (P.W.3), who then called the accused to come out of the house by expressing the desire that his house would be searched. The police staff with the Magistrate (P.W.3) then entered into the house and recovered a ganja bag with bamboo handle, which was kept at the corner of the room of the house. The contents of the bag, being suspected to be ganja, the same were weighed and the net weight of the contents (ganja) came to be 4 kg and 900 grams. The I.I.C. (P.W.5) then collected two parts of samples each weighing 24 grams from the contents of the bag and then those samples were packed and sealed so also the bag containing the bulk quantity of ganja was seized by using personal brass seal of the I.I.C. (P.W.5), which was then handed over to the Magistrate (P.W.3). The bag containing the ganja and the sample packets were then seized. The I.I.C. (P.W.5) drew plain paper FIR and on return to the P.S. with the accused and the seized articles including the contraband ganja, the matter was reported to the Superintendent CRLA No.59 of 2002 Page 3 of 8 of Police. Thereafter, the investigation of the case was entrusted to another Sub-Inspector (S.I.) of Police (P.W.6). The I.O. (P.W.6) then, having taken the charge of the investigation, received the sample packets and the bag and kept the same in the Malkhana of the P.S He (P.W.6) visited the spot, sent the samples for chemical examination and on completion of the investigation, submitted the Final Form placing this accused to face the trial for commission of the offence under section 20 (b) of the N.D.P.S. Act. 3. The defence plea is that of complete denial and false implication. However, the accused has taken a plea that the house wherefrom the ganja has been seized does not belong to him. 4. The prosecution, during trial, in order to establish the charge against the accused, has examined in total six (6) witnesses whereas the defence has examined none. From the side of the prosecution, several documents have been admitted in evidence and marked Exts.1 to 13. Out of the same, the important are the relevant seizure list (Ext.1) and the report of the Chemical Examiner (Ext.9/1). 5. The Trial Court, on going through the evidence both oral and documentary tendered from the side of the prosecution, has held the prosecution to have established the charge against the CRLA No.59 of 2002 Page 4 of 8 Appellant (accused) beyond reasonable doubt. Accordingly, the accused, having been convicted for commission of the offence under section 20(b) of the N.D.P.S. Act, he has been sentenced as afore-stated. 6. Learned counsel for the Appellant (accused) submitted that since there is no acceptable evidence as to the safe keeping of the seized contents of the bag as well as the samples collected from the contents of the bag at the spot, the Trial Court ought not to have held that the contents of the bag seized from the house of the accused were the contraband by accepting the report of the Chemica Examiner. He submitted that the evidence has not been tendered from the side of the prosecution to over-rule the possibility of meddling with the sample packets and tampering of the same when the noting in the order-sheet of the concerned Court is not up to the mark of satisfaction on that score. He, therefore, submitted that on this ground, the judgment of conviction and order of sentence cannot be sustained and, therefore, liable to be set aside. 7. Learned counsel for the Respondent-State refuted the above submission of the learned counsel for the Appellant. According to him, the learned S.D.J.M., having not noticed any such mark of tampering or features suggestive of indicates as to meddling with CRLA No.59 of 2002 Page 5 of 8 the contents of the sample packets produced before him; the submission that the evidence as to safe keeping of those is not satisfactory, has no base to stand upon. 8. 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 6). The documents admitted in evidence from the side of the prosecution have also been gone through. 9. In order to address the rival submission and judge the sustainability of the finding of guilt against the accused thereby, it would be profitable to straightway examine the evidence of the I.I.C. (P.W.5) on that score. He (P.W.5) says that at the spot, he collected two samples of 24 grams each and that he marked it as “A/1” and “A/2” and the bag containing the residue contents was marked as “A”. He says to have sealed the bulk ganja and the sample packets by putting his personal brass seal and then to have made over seal to the Executive Magistrate (P.W.3). He (P.W.5), having produced the sample packets and bag containing the residue ganja before the other S.I. (P.W.6), he resealed the said sealed packets and with his brass seal and kept the same in P.S. Malkhana. It is his evidence that the samples were then CRLA No.59 of 2002 Page 6 of 8 dispatched for chemical examination through S.D.J.M., Cuttack and the seized articles were sent to the Court Malkhana. At this stage, the relevant order dated 28.03.2001 of the learned S.D.J.M., being gone through, it gives a different picture altogether that P.W.6 produced the accused and the seized articles before him and made a prayer to send the exhibits to State Forensic Science Laboratory for examination. It further appears from the said order dated that as there was no time on that date, the learned S.D.J.M., directed the I.O. (P.W.6) to produce the exhibits on 29.03.2001 at 10.30 a.m. for transmission of the same to the State Forensic Science Laboratory. Accordingly, on 29.03.2001, the I.O. (P.W.6) produced the seized sample packets before the learned S.D.J.M., and those were sent for chemical examination and the rest bulk quantity of seized ganja were sent to the Malkhana of the Court. The learned Magistrate when says to have verified the samples packets produced by P.W.6 and found the seal of those samples packets to be intact and then, having broken those seals using his own seal, sent for chemical examination, that is, however, not the version of P.W.6, who says that it is the learned S.D.J.M., who drew the samples and sent those samples for examination. CRLA No.59 of 2002 Page 7 of 8 Therefore, with such divergent evidence on record, the prosecution is found to have not proved the safe keeping of the articles from the time of its seizure till production before the learned S.D.J.M. and more importantly, doubt arises as to how the samples were produced before S.D.J.M and who had drawn those and when and that where those had been kept before the dispatch for Chemical Examination. Therefore, the evidence of the prosecution is found to be highly deficient to establish the nexus between the contents of the said packets seized from bag from the house with the contents of the samples taken, which then being examined were found to be ganja. This being the conclusion, the judgment of conviction and order of sentence, which are impugned in this Appeal cannot be sustained. 10. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 5th August, 2002 passed by the learned Special Judge, Cuttack in G.R. Case No.458 of 2001 (41T/2001)., are hereby set aside. Judge. (D. Dash), Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Jun-2024 12:13:52 CRLA No.59 of 2002 Page 8 of 8