The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No. 15 Of 2019 From the judgment and order dated 19.02.2019 passed by the Special Judge, Puri in T.R. Case No.12 of 2016. ---------------------------- Ashok Muni .... Appellant Mr. Rajib Bihari Mishra Mr. Niranjan Panda Advocate -versus- State of Odisha .... Respondent JCRLA No.16 of 2019 Basanta Pradhan .... Appellant Mr. Maharsi Mohapatra Mr.Manas Ranjan Pradhan Advocate -versus- State of Odisha .... Respondent JCRLA No.17 of 2019 Bulu Behera .... Appellant Mr.Dhananjaya Nayak Advocate -versus- State of Odisha .... Respondent // 2 // JCRLA No.18 of 2019 Chintu Samanta .... Appellant Mr.Surya Kant Dash Mr. Harekrushna Moharana Advocate Mr. Deba Prasad Dash (Amicus curiae) -versus- State of Odisha .... Respondent JCRLA No.19 of 2019 Damadar Behera .... Appellant 6 Mr.Dhanjaya Nayak Advocate -versus- State of Odisha .... Respondent JCRLA No.20 of 2019 Prasanta Muni .... Appellant Mr.Manas Ranjan Pradhan Mr. Maharshi Mohapatra Advocate -versus- State of Odisha .... Respondent (In all cases for the State of Odisha) Mrs. Susamarani Sahoo Addl. Standing Counsel ---------------------------- Page 2 of 28 // 3 // P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Judgment: 05.01.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellants Ashok Muni in JCRA No.15 of 2019, Basanta Pradhan in JCRLA No.16 of 2019, Bulu Behera in JCRLA No.17 of 2019, Chintu Samanta in JCRLA No.18 of 2019, Damodar Behera in JCRLA No.19 of 2019 and Prasanta Muni in JCRLA No.20 of 2019 faced trial in the Court of the learned Special Judge, Puri in T.R. No.12 of 2016 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 that on 15.10.2015 at about 11.15 p.m. at Tarini Chhak, Station Road, Puri, they were found in illegal possession of 100 Kgs. of ganja (cannabis) in contravention of the provisions of the N.D.P.S. Act.
Legal Reasoning
The learned trial Court vide impugned judgment and order dated 19.02.2019 found all the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default to pay the fine, to undergo rigorous imprisonment for one year each. Page 3 of 28 // 4 // 2. The prosecution case, in short, is that on 15.10.2015 at about 10.00 p.m., while P.W.4 Raja Sekhar Swain, S.I. of Excise, Sadar Charge, Puri along with P.W.3 Santosh Kumar Nayak, Excise constable and others were performing patrolling duty, P.W.4 received reliable information that a Tavera vehicle bearing registration No.OD-07A-0111 was being used for transportation of contraband articles i.e., ganja near Puri Railway Station. P.W.4 immediately recorded the information into writing and proceeded to the spot with his staff, intercepted the Tavera vehicle about 200 mts. away from the Puri Railway station. The driver of Tavera vehicle fled away, but the appellants along with another who was subsequently found to be a juvenile, namely, Saroj Kumar Sahoo were found present in the vehicle and they were all in possession of one air bag each which they had placed on their lap. Two air bags were kept on the rear seat of the Tavera vehicle. P.W.4 apprised the appellants about his intention of search and also gave option to them to be searched either in presence of the Magistrate or in presence of the Gazetted Officer. Notices in that respect were served on the appellants and they gave their L.T.I. and signatures on the notices as a token of receipt of the same. However, all the appellants and the co-accused expressed their willingness to be searched by P.W.4 which they gave in writing and after giving their personal search, Page 4 of 28 // 5 // the Excise officials in presence of two independent witnesses i.e., Arun Kumar Dash (P.W.1) and Binayak Mishra (P.W.2) searched the vehicle and recovered one air bag from each of the appellants and co-accused and two air bags below the rear seat. On opening of each of the air bag, it was found that there are five small packets in it and on opening each such packet, it was found to be containing ganja which was identified by P.W.4 from its texture and smell. The packets were weighed and it was found that in each of the tens, bag there was 10 Kgs. of ganja and thus all total 100 Kgs. was found. The air bags were sealed and marked as A, B, C, D, E, F, G, H, I and J. A seizure list vide Ext.1/3 was prepared by P.W.4 in which some of the accused persons put their thumb impressions and the others put their signatures. The brass seal that was used for sealing the air bags was handed over to P.W.1 Arun Kumar Dash under zimanama Ext.9/2. P.W.4 told the appellants about the ground of arrest and then arrested them and from them, he could come to know that the driver of the vehicle who escaped is one Pintu. The seized Tavera vehicle with the help of traffic police was brought to the Excise Office and on the next day i.e., on 16.10.2015, P.W.4 recorded the statements of the appellants individually and obtained their signatures on such statements. He also recorded the statements of two independent witnesses i.e., P.W.1 and Page 5 of 28 // 6 // P.W.2 and of the official witnesses. On 16.10.2015, P.W.4 also produced the seven appellants before the Court of learned Special Judge, Puri along with the seizure lists, memo of arrest, inventory list, brass seal zimanama, grounds of arrest, compliance report of section 50 of the N.D.P.S. Act and made a prayer for drawal of sample. The learned Special Judge, Puri directed the learned S.D.J.M., Puri to draw samples of contraband articles seized and accordingly, P.W.4 produced the contraband articles before the learned S.D.J.M., Puri on that day itself i.e., on 16.10.2015 and from each of the ten air bags which were marked as Exts.A to J, samples of 50 grams of ganja were drawn from one of the packets and kept in twenty sealed envelopes which were marked as Exts.A/1 to J/1 and Exts.A/2 to J/2 and P.W.4 was directed to transmit the sealed sample packets marked as Ext.A/1 to Ext. J/1 along with forwarding report in a sealed envelope to the chemical examiner –cum- Deputy Drug Controller (RTD) of Government of Odisha, State Drugs Testing and Research Laboratory, Bhubaneswar for chemical analysis and the rest of ganja marked as Exts. A to J and the other sample packets i.e., Ext.A/2 to J/2 and the envelope containing cut seals were handed over to P.W.4 with a direction to deposit the same in District Court Malkhana, Puri. Copies of the seizure lists were given to each of the appellants. Page 6 of 28 // 7 // Tavera vehicle was given in the zima of its owner Sarat Kumar Panda as per zimanama Ext.41. On chemical analysis, it was found that all the ten samples packets were ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act. P.W.4 sent the recorded reliable information to Superintendent of Excise, Puri on 16.10.2015. He also sent the report of arrest and seizure under section 57 of the N.D.P.S. Act to his Superior Officer i.e. Inspector of Excise, Sadar Range, Puri and on completion of investigation, he submitted final prosecution report against eight accused persons under section 20(b)(ii)(C) of the N.D.P.S. Act including the appellants showing one Sanjaya Kumar Panda as an absconder. 3. The defence plea of all the appellants was one of complete denial. 4. During the course of trial, in order to prove its case, the prosecution examined four witnesses. P.W.1 Arun Kumar Das and P.W.2 Binayak Mishra, who are the independent witnesses, did not support the prosecution case, for which they were declared hostile. P.W.3 Santosh Kumar Nayak who was working as Constable of Excise and P.W.4 Raj Sekhar Swain was the S.I. of Excise who stated about receipt of reliable information, search of the Tavera vehicle, seizure of contraband ganja in ten air bags Page 7 of 28 // 8 // from the possession of the appellants, its seizure and weighment, arrest of the appellants, seizure of vehicle and forwarding the appellants to Court. P.W.4 is also the Investigating Officer in the case. The prosecution exhibited forty four documents. Ext.1/3 is the seizure list, Exts.4/2, Ext.5/2, Ext.6/2, Ext.7/2, Ext.8/2, Ext.10/2, Ext.11/2 are the option letters, Ext.12/2, Ext.13/2, Ext.14/2, Ext.15/2, Ext.16/2, Ext.17/2, Ext.18/2 are the ground of arrests, Ext.19/2, Ext.20/2, Ext.21/2, Ext.22/, Ext.23/2, Ext.24/2, Ext.25/2 are the memos of arrests, Ext.28/2 Inventory list, Ext.30/1 is the signature of P.W.4, Exts. 31, 32, 33, 34, 35, 36, and 37 are the statements of accused persons, Ext.38 is the order of Special Judge, Puri, Ext.39 is the copy of forwarding letter of S.D.J.M., Puri, Ext.40 is the deposit of mal Chalan, Ext.41 is the zimanama, Ext.42 is the report of S.D.T.L., Bhubaneswar, Ext.43 is the information recorded by P.W.4, Ext.44 is the report of P.W.4 under section 57 of the N.D.P.S. Act. The prosecution also proved eighty numbers of material objects i.e. M.O.I to V are the five packets of ganja kept in a bag, M.O. VI to VII are the envelopes containing broken seal, M.Os VIII to XII are five packets of Ganja in a bag, M.O. XIII to XIV are Envelope containing broken seal, M.O. XV to XIX Page 8 of 28 // 9 // are the packets containing Ganja, M.O. XX is the bag, M.O. XXI is the envelope containing broken seal, M.O. XXII to XXVI are the packets containing ganja, M.O. XXVII is the bag, M.O. XXVII is the envelope containing broken seal of P.W.4, M.O. XXIX to XXXIII are the packets containing ganja, M.O.XXXIV is the bag, M.O. XXXV is the envelope containing broken seal of P.W.4, M.O. XXXVI to XL are the packets containing ganja, M.O. XLI Bag, M.O. XLII is the envelope containing broken seal of P.W.4, M.O.XLIII to XLVII are the packets containing ganja, M.O. XLVIII is the bag, M.O XLIX is the envelope containing broken seal of P.W.4, M.O. L to LVI are the packets containing Ganja, M.O. LV is the bag, M.O. LVI is the envelope containing broken seal of P.W.4, M.O. LVII to LXI are the packets containing ganja, M.O. LXII is the Bag, M.O LXIII is the envelope containing broken seal, M.O. LXIV to M.O. LXIX are the bags, M.O. LXX is the envelope containing broken seal of P.W.4 and M.O. LXXI to LXXX are the second part of samples of Ganja. 5. The learned trial Court after assessing the oral and documentary evidence on record has been pleased to hold that there is no evidence that the seized Tavera vehicle was a public transport vehicle. The Excise Officer seized the vehicle and ganja and apprehended the accused persons while contraband ganja was in transit and therefore, section 43 of the N.D.P.S. Act is Page 9 of 28 // 10 // attracted to the case, even if the seized vehicle is not proved to be a public transport vehicle. It was further held that there is substantial compliance of section 42 of the N.D.P.S. Act and P.W.4, the Excise officer recorded the information and immediately sent the information to the Inspector of Excise. The prosecution has proved that 100 kgs. of Ganja in ten air bags were found from the conscious possession of the accused persons and the accused persons failed to explain such possession and therefore, the charge under section 20(b)(ii)(C) of the N.D.P.S. Act is well proved against them. 6.
Legal Reasoning
Mr. Suryakanta Dash, learned counsel appearing for the appellant Chintu Samanta in JCRLA No. 18 of 2019 along with learned Amicus Curiae, Mr. Deba Prasad Dash, Advocate contended that two independent witnesses being examined as P.Ws.1 and 2 have not supported the prosecution case. P.W.3, the Excise Constable though stated about the receipt of information regarding one vehicle loaded with ganja was moving towards Puri Railway Station, but he has not stated that such information was reduced to writing, though in that respect P.W.4 has stated so. It is further argued that the grounds of belief as required under the second proviso to section 42(1) of the N.D.P.S. Act has also not been recorded even though the search and seizure was made during night time and there is also no Page 10 of 28 // 11 // satisfactory evidence on record regarding the reliable information being reduced to writing by P.W.4 and sent to the Superior Officer. The competent person to prove such aspect and the documentary evidence have not been brought on record and therefore, it cannot be said that there has been substantial compliance of the provision under section 42 of the N.D.P.S. Act. There is no evidence as to how the weight of the contraband ganja was taken at the spot and by whom. There is also no evidence as to which air bag containing contraband ganja was seized from which accused. It is further argued that a joint seizure list was prepared relating to the seized articles which was not proper and justified particularly when each of the accused is stated to be carrying one air bag on his lap and similarly samples were not drawn from each of the five paper packets found in each air bag but randomly from one of the packets from each air bag. It was further argued that the officer who conducted search and seizure should not have investigated the case and therefore, it is a fit case where benefit of doubt should be extended in favour of appellant. Reliance was placed on the decision of the Hon’ble Supreme Court in the case of Karnail Singh -Vrs.- State of Haryana reported in (2009) 8 Supreme Court Cases 539. Page 11 of 28 // 12 // Mr. Rajib Bihari Mishra, learned counsel appearing for appellant Ashok Muni in JCRLA No.15 of 2019, Mr. Manas Ranjan Pradhan, learned counsel appearing for appellants Basant Pradhan and Prasanta Muni in JCRLA Nos.16 of 2019 and 20 of 2019, Mr. Dhananjaya Nayak, learned counsel appearing for the appellants Bulu Behera and Damodar Behera in JCRLA Nos.17 and 19 of 2019 adopted the above argument and urged that in view of non-compliance of mandatory provision under section 42 of the N.D.P.S. Act, the appellants should be given benefit of doubt. Mrs. Susamarani Sahoo learned Addl. Standing Counsel appearing for the State of Orissa, on the other hand, supported the impugned judgment and contended that even though the independent witnesses P.W.1 and P.W.2 have not supported the prosecution case, but they have admitted their signatures on the seizure list and also on some vital documents. It is further argued that since the information was received during patrolling duty and action was sought to be taken immediately to prevent concealment of evidence so also facility for the escape of the offenders, the search warrant and authorization could not be obtained and merely because the ground of belief has not been taken down in writing, particularly when the reliable information was reduced to writing and has Page 12 of 28 // 13 // been marked as Ext.30 in which the signature of the Superior Officer is also appearing in token of receipt of such information, it can be said that there has been substantial compliance of section 42 of the N.D.P.S. Act. She urged that investigation carried out by P.W.4 cannot be a ground for acquittal of the appellants when no prejudice is shown to have been caused to them. She placed reliance on the case of Mukesh Singh -Vrs.- State reported in (2020) 10 Supreme Court cases 120. 7. Adverting to the contentions raised by learned counsel for the respective parties and coming to the evidence on record, there is no dispute that out of the four witnesses examined during trial, two are official witnesses i.e. P.W.3 and P.W.4 and two are independent witnesses i.e. P.W.1 and P.W.2 who have not supported the prosecution case. P.W.1 has stated that he did not know the seizure of any ganja (cannabis) by excise staff. Though he admitted his signatures in different documents, but he has been declared hostile by the prosecution and leading questions were put to him by the learned Addl. Public Prosecutor under section 154 of the Evidence Act and in the cross-examination by the learned defence counsel, P.W.1 has stated that he had signed blank papers at the Excise Barrack, Puri and his dwelling house is located near Excise Office and on many earlier occasions, he and Page 13 of 28 // 14 // the residents of his locality were cited as witnesses to the search and seizure by the Excise staff. He further stated that he had given his signatures at the instance of Excise Officer and contents of the documents on which the signatures were taken, were not read over to him. Similarly, P.W.2 Binayak Mishra has stated that he did not know the accused persons standing in the dock and like P.W.1, though he has admitted his signatures on some documents, but he was declared hostile by the prosecution and leading questions were put to him and in the cross-examination, he has stated that he had signed some blank papers and further stated that in some excise cases, he was cited as witness and further stated that no ganja was seized in his presence. Therefore, even though P.W.1 and P.W.2 have admitted their signatures on some papers but in view of their specific statements that no contraband ganja was seized in their presence and that signatures were obtained in blank papers at the instance of the Excise Officer, in my humble view, the evidence of these two witnesses are no way helpful either to the prosecution or to the defence. 8. The main challenge to the impugned judgment is on the basis of non-compliance of section 42 of the N.D.P.S. Act. Page 14 of 28 // 15 // In case of Ramakrushna Sahu -Vrs.- State of Odisha reported in (2018) 70 Orissa Criminal Reports 340, it has been held that total non-compliance with the provisions under sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. Section 42 (2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours. Under section 42(1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to sub- section (1) of section 42 of the N.D.P.S. Act if the concerned Page 15 of 28 // 16 // officer has reason to belief that obtaining search warrant or authorization for search during that period would afford opportunity for the concealment of evidence or facility for the escape of an offender. The copy of information taken down in writing under sub-section (1) or the grounds of belief recorded under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act has to be sent to his immediate superior official within seventy-two hours. In case of State of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283, the Hon’ble Supreme Court has been pleased to hold that the object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the benefit while carrying out arrest or search as provided under the proviso to section 42(1). To that extent, those are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates of the trial. Page 16 of 28 // 17 // In case of State of Punjab -Vrs.- Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, the Hon’ble Supreme Court held as follows:- “10. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorization 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. Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of his belief under the proviso to Sub-section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of section 43 and section 42 is that whereas section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered Page 17 of 28 // 18 // officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” As rightly observed by the learned trial Court that there is no evidence that the seized Tavera vehicle is a public transport vehicle. In case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827, while discussing regarding the compliance of section 42 of the N.D.P.S. Act in case of a vehicle which was seized at the public place carrying contraband articles, a Division Bench of the Hon’ble Supreme Court held that since the jeep cannot be said to be a public conveyance within the meaning of explanation to section 43 of the N.D.P.S. Act, hence, section 43 was clearly not attracted and provisions of section 42(1) proviso were required to be complied with and it was further held that the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction. In the case in hand, both P.W.3 and P.W.4 have stated that information was received while they were performing patrolling duty, but there is discrepancy of evidence between the Page 18 of 28 // 19 // two as to whether such information was reduced to writing or not. Though P.W.4 has stated that such information was reduced to writing by him, but the evidence of P.W.3 is silent in that respect. P.W.4 stated that he examined the owner of the vehicle but did not cite him as a witness and he did not seize the original registration certificate of the vehicle from the owner and did not collect any information from R.T.O. Office to ascertain about nature of permit for use of the seized vehicle. When there is no evidence that the seized Tavera vehicle comes within public conveyance and the explanation to section 43 of the N.D.P.S. Act shows that a private vehicle would not come within the expression "public place" as explained in section 43 of the N.D.P.S. Act. and the search was conducted after recording the information under section 42(1) of the N.D.P.S. Act, as stated by P.W.4, therefore, even though the seizure was made in a public place, in my humble view, as held in Jag Raj Singh @ Hansa (supra), the relevant provision would not be section 43 of the N.D.P.S. Act but compliance of the provision under section 42 of the N.D.P.S. Act is necessary. The decision rendered in the case of Baldev Singh (supra) was further considered by a five-Judge Bench in the case of Karnail Singh (supra), wherein it was held in the concluding paragraph as follows:- Page 19 of 28 // 20 // "17. In conclusion, what is to be noticed is Abdul Rashid : (2000) 2 SCC 513 did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham : (2001) 6 SCC 692 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 concerned Register 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 Page 20 of 28 // 21 // 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. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of 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 information received, before initiating action, or non-sending 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 Page 21 of 28 // 22 // 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." In view of settled position of law, now it is to be seen whether the contentions raised by the learned counsel for the appellants that there is non-compliance of the mandatory provision under section 42(1) and 42(2) of the N.D.P.S. Act is sustainable or not. Sub-section (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October 2001. After amendment of this sub-section, the words 'forthwith' stood amended by the words 'within seventy-two hours'. In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officer within seventy-two hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub- Page 22 of 28 // 23 // section (2) of section 42. This, in my humble opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful. P.W.4 has stated that the receipt of the information was at about 10.00 p.m. on 15.10.2015 while he along with other excise staff were performing patrolling duty and he also reduced the same into writing. P.W.3 though stated about the receipt of the information but he has not stated that P.W.4 reduced the information into writing. The said writing has been marked as Ext.30 and P.W.4 has proved his signature on Ext.30 marked as Ext.30/1. He further proved the signature of his Superior Officer i.e. Inspector of Excise, Sadar Range, Puri which is marked as Ext.30/2. Though he stated that he sent the substance of information to the Superintendent of Excise, Puri on 16.10.2015 and further stated that Office of the Inspector of Excise and his office are in one compact block, but he has stated that on 16.10.2015, the Inspector of Excise was not available. If that be so, how then the signature of Inspector of Excise was appearing on Ext.30 and dated as 16.10.2015 which appears to be a suspicious feature. Neither the Inspector of Excise himself has been examined in the case nor has any of his staff been examined to prove the receipt of Ext.30. No dispatch register or Page 23 of 28 // 24 // document receipt register has been proved in the case to show that any such document like Ext.30 was sent from the office of P.W.4 to the office of Inspector of Excise or received at the office of Inspector of Excise. If the copy of Ext.30 was sent to the Inspector of Excise, the said copy should have been seized from his office by the Investigating Officer to substantiate the prosecution case that such a document was sent to the said office. There is no material as to who took Ext.30 from P.W.4 to the office of the Inspector of Excise and delivered it there. Similarly, there is no documentary evidence as to who received Ext.30 in the office of the Inspector of Excise. All these materials coupled with the positive statement made by P.W.4 regarding non-availability of Inspector of Excise in his office on 16.10.2015 creates a doubt about the sending of the information received and reduced to writing vide Ext.30 to the office of the Inspector of Excise. Mere oral evidence of P.W.4 in that respect in absence of proof of corresponding documentary evidence as stated above is not sufficient relating to the compliance of the mandatory provision under section 42 of the N.D.P.S. Act. If the information was received during patrolling and it necessitated for urgent action and there was no time to obtain search warrant or authorization on the part of P.W.4, he could have carried out his functions as enumerated under clauses (a) to (d) of section Page 24 of 28 // 25 // 42(1) of the N.D.P.S. Act after recording the grounds of his belief which has not been done in this case. No grounds of belief have been recorded in this case. In the case of Karnail Singh (supra), it has been categorically held that total non-compliance of requirements of sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is impermissible, but delayed compliance if satisfactorily explained will be acceptable for compliance of section 42 of the N.D.P.S. Act. In view of the foregoing discussions, it is difficult to believe that the prosecution has successfully proved that there has been compliance of section 42 of the N.D.P.S. Act. 9. Even though, it is the prosecution case that each of the appellants and the co-accused who was a juvenile was holding one air bag each from which the contraband ganja was found, each of the air bag was containing five paper packets and each such paper packet was containing contraband ganja of two kilogram, but separate seizure list should have been prepared giving specific mark of identification to each of the air bag which has not been done in this case and thus, from the materials on record, it is difficult to find as to which appellant/accused was the owner or possessing which of the seized bags marked as Exts. A to J. Similarly, P.W.4 has stated that a sample of 50 grams of ganja in duplicate was collected from ten packets out of Page 25 of 28 // 26 // fifty packets in the Court of learned S.D.J.M., Puri and samples were not drawn from each packet but they were drawn randomly from some packets. In absence of specification of the air bag in favour of a particular appellant/co-accused and in absence of any material that each of five packets found in a particular air bag was tested to be ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act, it is difficult to believe that all the five packets found in each air bag seized from the appellants/co- accused was containing contraband ganja. The preparation of joint seizure list in a case of this nature was not proper and it seems to have been done in a mechanical manner without keeping in view the standard of proof required to prove the possession in a case of this nature and the rigorous imprisonment prescribed for the conviction under the alleged offence. 10. It is of course correct that in the case of Mukesh Singh (supra), a Five-Judge Bench of the Hon’ble Supreme Court has been pleased to hold that in a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor and the question of bias or prejudice would depend upon the facts and circumstances of each case and merely because the informant is the investigator, by that itself the investigation Page 26 of 28 // 27 // would not suffer the vice of unfairness or bias and therefore, on the sole ground that the informant is the investigator, the accused is not entitled to acquittal and therefore, investigation carried out by P.W.4 and submission of final prosecution report by him even though he is the officer who conducted search and seizure, per se cannot be said to be illegal, however, in view of the fact that the independent witnesses have not supported the prosecution case and there are glaring inconsistencies between the evidence of the two official witnesses i.e. P.Ws.3 and 4, absence of any clinching evidence relating to compliance of mandatory provision under section 42 of the N.D.P.S. Act and in view of the lacunas as pointed out above, I am of the humble view that it would be very risky to uphold the impugned judgment and order of the conviction in respect of the appellants. 11. Accordingly, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence passed thereunder by the learned trial Court is hereby set aside. The appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. In the result, the Jail Criminal Appeal Nos. 15, 16, 17, 18, 19 and 20 of 2019 are allowed. The appellants in each of Page 27 of 28 // 28 // the appeals shall be released from the jail custody forthwith if their detention is not required in any other case. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to Mr. Deba Prasad Dash in JCRLA No.18 of 2019 for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 5th January 2023/Pravakar Page 28 of 28