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IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No. 274 Of 2016 From the judgment and order dated 06.04.2016 passed by the Addl. Sessions Judge & Special Judge, Phulbani in G.R. Case No. 74 of 2014. ----------------------------- Bablu @ Bulu @ Minaketan Sahu ……… Appellant -Versus- State of Orissa ……… Respondent For Appellant: - Mr. Prahalad Sahu, Mr. G.N. Sahu, Advocate CRLA No.275 of 2016 Girish Sahu ……… Appellant -Versus- State of Orissa ……… Respondent For Appellant: - Mr. Prahalad Sahu, Mr. G.N. Sahu, Advocate CRLA No.282 of 2016 Abhimanyu Digal ……… Appellant -Versus- State of Orissa ……… Respondent For Appellant: - Mr. Biswajit Moharana Advocate // 2 // (In all cases for the - Mr. Priyabrata Tripathy State of Odisha): A.S.C. ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 16.03.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Bablu @ Bulu @ Minaketan Sahu in CRLA No.274 of 2016, appellant Girish Sahu in CRLA No.275 of 2016 and appellant Abhimanyu Digal in CRLA No.282 of 2016 faced trial 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’) in the Court of the learned Addl. Sessions Judge & Special Judge, Phulbani in G.R. Case No. 74 of 2014 on the accusation that on 18.10.2014 at about 10.00 a.m. near Bunduli Chhak on Gochhapada and Balandapada road, they were found in possession of 175 Kg. 115 gms. of cannabis (ganja) kept in eight plastic bags and one jute bag and transporting the same in a TATA 407 Pick Up Van bearing Regd. No.OR-12-B/3251. The learned trial Court vide impugned judgment and order dated 06.04.2016 found all the appellants guilty of the offence charged and sentenced each of them to undergo rigorous Page 2 of 33 // 3 // imprisonment for a period of twelve years each and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default of payment of fine, to undergo rigorous imprisonment for one year. Since all the appeals arise out of one judgment, with the consent of the parties, those are heard analogously and disposed of by this common judgment. 2. The prosecution case, in short, is that on 18.10.2014 at about 9.00 a.m. Baba Sankar Saraf (P.W.1), the officer in charge of Gochhapada police station received reliable information that three persons were transporting ganja in a TATA 407 vehicle bearing Registration no.OR-12B/3251 through Gochhapada Balandapada road. P.W.1 entered the said fact in Station Diary Entry No.348 dated 18.10.2014 and intimated the same to the S.D.P.O, Sadar, Phulbani and Superintendent of police, Kandhamal through constable Sushil Digal. As it was not possible on the part of P.W.1 to obtain search warrant due to paucity of time, he formed a raid party, proceeded to the spot in a police jeep to verify the authenticity of the information. On the way, P.W.1 took two local witnesses, namely, Prakash Sahu and Suresh Kanhar (P.W.3) with them. The raiding party reached Bunduli Chhak on Gochhapada Balandapada road at about 10.00 a.m. on 18.10.2014 and waited there and within a short period, Page 3 of 33 // 4 // they found the TATA 407 vehicle bearing Registration No.OR- 12B/3251 was coming towards Bunduli Chhak from Gochhapada side being escorted by a motorcycle bearing No.OD-03-D/6661. On seeing the police party, the rider of the motorcycle fled away towards the forest leaving the motorcycle by side of the road. The police team intercepted the TATA 407 vehicle and found three persons including the driver sitting inside the cabin and there were eight numbers of plastic bags and one jute bag filled with some material kept on the dalla of the vehicle. P.W.1 interrogated the persons found inside the vehicle and they disclosed their names and identities and they are the appellants of the three appeals and they admitted to be transporting ganja in the bags. P.W.1 found smell of ganja was coming out of the bags kept on dalla. Since the appellants could not produce any authority in support of the possession/transportation of ganja, P.W.1 wanted to take personal search of the appellants and gave option to each of them in terms of section 50 of the N.D.P.S. Act whether they were interested to be searched in presence of Executive Magistrate or Gazetted Officer to which each of the appellants opted for search in presence of the Magistrate. Constable Chakdardhar Sethi (P.W.6) was immediately deputed to intimate S.D.M., Phulbani with a requisition of service of the Page 4 of 33 // 5 // Magistrate and A.S.I. R.B.R. Reddy was also deputed to procure the attendance of a weighman, weighing machine and other materials. At about 12.20 p.m., Nabin Chandra Patel (P.W.7), Executive Magistrate and Tahasildar, Phiringia arrived at the spot and soon thereafter the personal search of the members of the police team was taken, but nothing incriminating was recovered and in presence of the Magistrate, the personal search of the appellants were taken and some cash and one mobile phone was seized and then the vehicle was searched and the bags containing contraband articles were unloaded from the vehicle and the weighman Bishnu Kesari Sahu (P.W.4) made weighment of the bags and it was found that those persons were
Legal Reasoning
transporting 175 kg. and 115 gms. of ganja in the bags. P.W.1 collected two samples each weighing 50 gms. from each of the bags and the bulk quantity ganja, sample ganja were packed, labeled, sealed and seized in presence of the Magistrate and the witnesses. The truck as well as the motorcycle was also seized. The seal used along with the weighing machine were left on the zima of the weighman. As prima facie case under section 20(b)(ii)(C) of the N.D.P.S. was made out, P.W.1 immediately drew the F.I.R. at the spot and returned to the police station with the seized articles and the appellants. As per the direction Page 5 of 33 // 6 // of P.W.1, P.W.8 Bibhudutta Routray, S.I. of police Gochhapada police station took up investigation of the case. During course of investigation, P.W.8 examined the informant (P.W.1), received the material objects, the documents, the motorcycle, 407 truck and other materials from the appellants. He also examined other material witnesses including the Executive Magistrate and kept the seized articles in P.S. Malkhana vide Malkhana Entry no.19 of 2014. On the next day, P.W.8 visited the spot i.e., Bunduli Chhak on Gochhapada Balandapada road being accompanied by P.W.1 and prepared the spot map, examined some more witnesses and forwarded the appellant to Court after their medical examination. On the same day, the Investigating Officer prayed before the Special Judge, Phulbani to keep the seized M.Os. at Court Malkhana and submit one part of the seized sample to S.F.S.L., Rasulgarh, Bhubaneswar for chemical test. As per the order of the Court, the constable Chakradhar Sethi (P.W.6) proceeded to Bhubaneswar with one part of the seized sample. P.W.8 also sent requisition to R.T.O., Balangir to verify the ownership of the seized motorcycle bearing Registration No.OD-03-D/1661 and on 20.11.2014, he received the chemical examination report from S.F.S.L., Rasulgarh, Page 6 of 33 // 7 // Bhubaneswar vide Ext.28. A detailed report which was sent to Superintendent of Police, Phulbani under section 57 of the N.D.P.S. Act was also seized by the Investigating Officer (P.W.8) including Malkhana registrar and station diary book of Gochhapada police station on production by P.W.1 and a seizure list was prepared and ultimately P.W.8 submitted preliminary charge sheet on 11.02.2015 keeping further investigation open. 3. The appellants pleaded not guilty to the charge framed against them and claimed to be tried. 4. The defence plea of the appellants was of complete denial. 5. During the course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Baba Sankar Saraf, was the Officer in-charge of Gochhapada Police Station, Phulbani stated that on 18.10.2014 at about 9.00 a.m., he got reliable information that three persons were transporting contraband articles in a vehicle bearing Registration No.12-B/3251 and they were proceeding towards Bunduli Chhak and on receipt of the information, he made station diary entry and sent the copy of the station diary to his authority i.e., S.D.P.O, Phulbani and Superintendent of Police, Kandhamal. He also detained the three appellants while Page 7 of 33 // 8 // transporting ganja in bags in the vehicle, conducted search and seizure. He is also the informant in the case. P.W.2 Biswambar Sahoo was the constable attached to Gochhapada P.S., Phulbani who was also one of the members of the raiding party and stated about recovery of contraband ganja from the possession of the appellants. P.W.3 Suresh Kanhar and P.W.4 Bishnu Keshari Sahu, who were independent witnesses, did not support the prosecution case and have been declared hostile by the prosecution. P.W.5 Sushil Digal, who was working as police constable in Gochhapada police station, Phulbani and he was deputed by P.W.1 to the office of Superintendent of Police, Phulbani and S.D.P.O, Sadar, Phulbani to deliver local Dak and accordingly, he delivered the Dak. P.W.6 Chakradhar Sethi, who was working as police constable in Gochhapada police station, Phulbani, has stated that he along with other police staff were on patrol duty at Balandapada area and he noticed a motorcycle coming following the TATA Ace vehicle. On the direction of A.S.I. R.P. Reddy, he detained the motorcycle. Page 8 of 33 // 9 // P.W.7 Nabin Kumar Patel, was working as Tahasildar, Phulbani in whose presence the personal search of the appellants was conducted and then the plastic bags and gunny bag were unloaded from the vehicle, ganja which was found on opening the bags was weighed by weighman and samples of 50 grams in duplicate from each bag were taken. He also proved the seizure list marked as Ext.4 and similarly he stated about seizure of 407 vehicle and Hero Honda motor cycle. P.W.8 Bibhudutta Routray who was the Sub- Inspector of Gochhapada police station is the Investigating Officer of the case and after registration of first information report, he took up investigation of the case, seized all the articles which were seized by P.W.1, examined the witnesses, visited the spot, prepared the spot map Ext.22 and he submitted preliminary charge sheet keeping further investigation open. The prosecution exhibited thirty three documents. Ext.1 is the notice issue to appellant Abhimanyu Digal, Ext.2 is the notice issued to appellant Girish Sahu, Ext.3 is the notice issued to appellant Minaketan Sahu, Exts.4, 5, 6, 16, 17, 25, 29 and 32 are the seizure lists, Exts.7 to 15 are the Drug Secret Memo, Ext.18 is the first information report, Ext.19 is the signature of P.W.4 on seizure list, Ext.20 is the letter addressed Page 9 of 33 // 10 // to Tahasildar, Ext.21 is the relevant Entry in Malkhana Register, Ext.22 is the spot map, Ext.23 is the prayer to Special Judge, Phulbani, Ext.24 is the prayer to Special Judge, Phulbani to submit one part of seized sample to S.F.S.L., Ext.26 is the receipt granted by S.F.S.L., Ext.27 is the command certificate, Ext.28 is the chemical examination report, Ext.30 is the intimation letter, Ext.31 is the Detailed report, Ext.33 is the relevant entry dated 18.10.2024 in S.D. Book Entry No.348 to 350. M.O.I to M.O.IX are bulk quantity ganja, M.O.X to M.O.XVIII are sample ganja and M.O.XIX and M.O.XX are mobile phones. 6. Three witnesses were examined on behalf of the defence. D.W.1 Khageswar Sahu is the father-in-law of appellant Girish Sahu and he stated to have purchased a Hero Honda motorcycle and filed the R.C. book of the motorcycle vide Ext.A and further stated that on 17.10.2014, the appellant took the motorcycle from him. D.W.2 Kekaya Ghatari stated that the appellants Minaketan Sahoo and Girish Sahu visited his house on Page 10 of 33 // 11 // 17.10.2014 and stayed in the house overnight and left the house at about 12 noon on 18.10.2014 by a motorcycle. D.W.3 Girish Sahu is the appellant in CRLA No.275 of 2016 and he stated to have stayed in the house of P.W.2 on the previous date of the occurrence and left at about 12.00 noon. The defence proved three documents. Ext.A is the Registration Certificate, Ext.A-1 is the Original Job Card of appellant Abhimanyu Digal and his father Santosh Digal and Ext.A-2 is the copy of receipt register of Sub-Collector –cum- S.D.M., Phulbani. 7. The learned trial Court after assessing the oral as well as documentary evidence on record, has been pleased to hold that the officer rightly adopted the procedure laid down under section 42 of the N.D.P.S. Act before search and seizure and there has been full compliance of the provisions under section 42 of the N.D.P.S. Act. With regard to the compliance of the provisions of section 50 of the N.D.P.S. Act, learned trial Court held that since the contraband articles were recovered from vehicle, compliance with the provision of section 50 of the N.D.P.S. Act is not required. Learned trial Court further held that the prosecution witnesses being public officials very categorically stated that the appellants were transporting ganja in a TATA 407 Page 11 of 33 // 12 // vehicle and nothing has been elicited in their evidence to show that they have got any bias towards the appellants and the plea of false implication of the appellants by the I.O. does not stand to reason. The learned trial Court discussed the chemical examination report finding wherein it is indicated that the contents of the sample was found to be fruiting and flowering tops of cannabis plants (ganja) and held that the prosecution has also produced the report in compliance to section 57 of the N.D.P.S. Act vide Ext.31 and accordingly came to the conclusion that the prosecution has successfully established its case that on 18.10.2014 at about 10.00 a.m., the appellants were in possession and transporting 175kg. 115 gms of cannabis (Ganja) by a TATA 407 Truck bearing No.OR-12-B/3251 at Bunduli Chhak without any authority and therefore, held the appellants guilty of the offence under section 20(b)(ii)(C) of the N.D.P.S. Act. 8. Mr. Prahalad Sahu & Mr. G.N. Sahu, learned counsel appearing for the appellant Bablu @ Bulu @ Minaketan Sahu in CRLA No.274 of 2016 and the appellant Girish Sahu in CRLA No.275 of 2016 and Mr. Biswajit Moharana, learned counsel appearing for the appellant Abhimanyu Digal in CRLA No. 282 of 2016 contended that the independent witnesses including the weighman have not supported the prosecution case and there Page 12 of 33 // 13 // are contradictions between the statements of the independent witnesses and official witnesses. It is argued that the learned trial Court erroneously held that there has been compliance of the mandatory provision under section 42 of the N.D.P.S. Act. It is further argued that the sentence of twelve years which was imposed on the appellants for the offence under section 20(b)(ii)(C) of the N.D.P.S. Act is illegal as the learned trial Court has not taken into account the provision under section 32- B of the N.D.P.S. Act and therefore, such higher sentence is not sustainable in the eye of law. Learned counsel for the appellants argued that the impugned judgment and order of conviction is not sustainable in the eye of law and therefore, benefit of doubt should be extended in favour of the appellants. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State, on the other hand, contended that even though the independent witnesses have not supported the prosecution case, the same cannot be a ground to disbelieve the version of the official witnesses as it is clear and trustworthy and therefore, the learned trial Court has not committed any illegality in accepting such evidence. He further argued that Constable Sushil Digal has been examined as P.W.5 and he is a very vital witness to the compliance of section 42 of the N.D.P.S. Act. Page 13 of 33 // 14 // Learned counsel for the State placed the relevant paragraph from the impugned Judgment where compliance of section 42 of the N.D.P.S. Act has been discussed and contended that the learned trial Court has come to the just conclusion regarding full compliance of section 42 of the N.D.P.S. Act and therefore, there is no merit in any of the appeals and all the appeals should be dismissed. 9. Adverting to the contentions raised by the learned counsel for the respective parties, at the outset, let me first deal with the contention regarding the sentence imposed by the learned trial Court. (i) Whether imposition of 12 (twelve) years sentence was justified: The learned trial Court on the hearing on the question of sentence, has observed as follows:- “Heard on the sentence from the convicts. It is submitted by the learned advocates on behalf of the convicts that a liberal view may be taken while imposing the sentence as they are first offenders having families. On the other hand learned special P.P. urged for imposition of adequate sentence which the facts demand. I have already mentioned that the menace of drug trafficking is rising day by day affecting the Page 14 of 33 // 15 // society at large, specially the younger generation contributing to rise the crime graph of the country. However, there is nothing on record to show about any proof of prior involvement of the convicts in drug trafficking. Considering the facts that the convicts were in possession of 175 kg. 115 gms. of cannabis and transporting the same in nine bags in a concealed manner in the Truck, this Court is inclined to sentence the convicts to undergo Rigorous Imprisonment for 12(twelve) years and to pay fine of Rs.1,00,000/- i.d. R.I. for 1 (one) year each. The period of detention be set off as per the provision of Section 482 Cr.P.C.” In the case of Sambhulal Tibrewal (supra), it is held as follows: “Section 20(b)(ii)(C) of the N.D.P.S. Act prescribes, inter alia, that whoever, in contravention of any provision of the Act or any rule or order made or condition of license granted thereunder possesses cannabis which involves commercial quantity, he shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh Page 15 of 33 // 16 // rupees. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Section 32-B of the N.D.P.S. Act deals with factors to be taken into account for imposing higher than the minimum punishment which reads as follows:- "32-B. Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:- (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; and (d) the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities; Page 16 of 33 // 17 // (e) the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence." On a bare reading of this section, it is apparent that ordinarily minimum term of imprisonment or fine has to be imposed where it has been so prescribed but if the case comes under any of the clauses i.e. (a), (b), (c), (d), (e) or (f) of section 32-B or any other factors as it may deem fit then the Court may award more punishment than the minimum.” On going through the reasons assigned by the learned trial Court in the impugned judgment, it is clear that none of reasons falls within the category of the clauses (a), (b), (c), (d), (e) or (f) of section 32-B of the N.D.P.S. Act. The reasons assigned were not sufficient enough to award more punishment than the minimum. It is clear that while imposing a substantive sentence of R.I. for twelve years, the learned trial Court has not kept in view the provision under section 32-B of the N.D.P.S. Act which was inserted in the N.D.P.S. Act w.e.f. 02.10.2001. The occurrence in this case took place on Page 17 of 33 // 18 // 18.10.2014 and therefore, at the time of imposing sentence, it was the duty of the learned trial Court to take into account the provision under section 32-B of the N.D.P.S. Act. It is the well settled principle of law that substantive provision unless specifically provided for otherwise intended by the Parliament should be held to have a prospective operation. One of the facets of rule of law is also that all statutes should be presumed to have a prospective operation only. Therefore, when the amendment has come in the N.D.P.S. Act and same has not been taken into consideration by the learned trial Court while imposing a punishment higher than the minimum term of imprisonment, I find sufficient force in the contention raised by the learned counsel for the appellants that such higher sentence is not sustainable in the eye of law. (ii) Non-compliance of section 42 of N.D.P.S. Act: 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 causes prejudice to the accused. Section 42 (2) of the N.D.P.S. Act states that when an Page 18 of 33 // 19 // 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 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 Page 19 of 33 // 20 // N.D.P.S. Act has to be sent to his immediate superior official within seventy-two hours. In the case of Karnail Singh -Vrs.- State of Haryana reported in (2009) 44 Orissa Criminal Reports (SC) 183, it is held by a five-Judge Bench of the Hon’ble Supreme Court that the officer on receiving the information (of the nature referred to in sub-section (1) of section 42 of the N.D.P.S. Act 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) of the N.D.P.S. Act. It is further stated therein that the 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 with satisfactory explanation about the delay will be acceptable compliance of Section 42 of the N.D.P.S. Act. In the case of Biswanath Patra -Vrs.- State of Odisha reported in 2019 (I) Orissa Law Reviews 34, it is held as follows: “8. Under section 42(1), if the empowered officer receives reliable information from any person relating to commission of an offence Page 20 of 33 // 21 // 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 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. 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.” In case of State of Punjab -Vrs.- Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, it is held as follows:- Page 21 of 33 // 22 // “10. The proviso to sub-section (1) lays down that if the empowered 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. 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 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 Page 22 of 33 // 23 // substance in a public place where such possession appears to him to be unlawful.” P.W.1 Baba Sankar Saraf, the officer in charge of Gochhapada Police Station, Phulbani stated that on 18.10.2014 at about 9.00 a.m., he got reliable information that three persons were transporting contraband articles in a vehicle bearing Registration No.12-B/3251 and on receipt of the information, he made station diary entry and sent the copy of the station diary to his authorities i.e., S.D.P.O, Phulbani and Superintendent of Police, Kandhamal and he along with other police staff proceeded towards Bunduli Chhak. The station diary entry no.348 dated 18.10.2014 has been marked as Ext.33. The Investigating Officer (P.W.8) has stated in his cross-examination that he has not examined the owner of TATA 407 vehicle nor seized any document of TATA 407 vehicle. Even though the ganja bags were seized from the vehicle during day time and that to in a public place but since there was earlier reliable information which was reduced to writing and there is no material that the vehicle in question was a ‘public conveyance’ which is included in the expression ‘public place’ as per the explanation to section 43 of the N.D.P.S. Act, therefore, section Page 23 of 33 // 24 // 43 of N.D.P.S. Act is clearly not attracted and provisions of section 42 of N.D.P.S. Act were required to be complied with In the case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 11 Supreme Court Cases 687, it is held as follows: "18. The Explanation to Section 43 defines expression ‘public place’ which includes any ‘public conveyance’. The word ‘public conveyance’ as used in the Act has to be understood as a conveyance which can be used by public in general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 were enacted to regulate the law relating to motor vehicles. The vehicles which can be used for public are public Motor Vehicles for which necessary permits have to be obtained. Without obtaining a permit in accordance with the Motor Vehicles Act, 1988, no vehicle can be used for transporting passengers. 19. In the present case, it is not the case of the prosecution that the jeep HR-24 4057 had any permit for transporting the passengers........ x x x x x x x x x x 21.....In view of the above, the jeep cannot be said to be a ‘public conveyance’ within the meaning of Explanation to Section 43. Hence, Section 43 was clearly not attracted and Page 24 of 33 // 25 // provisions of Section 42(1) proviso were required to be complied with and the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction.” A vehicle would not automatically come within the purview of ‘public conveyance’ merely it is found in a public place or in transit with any narcotic drug or psychotropic substance or controlled substance. The prosecution must prove that the offending vehicle in respect of which reliable information was received to be carrying such contraband articles and seized with such articles comes within ‘public conveyance’ so as to attract the provision under section 43 of the N.D.P.S. Act and to exclude the applicability of section 42 of the N.D.P.S. Act. In the case in hand, since the prosecution has utterly failed to prove that the offending vehicle is a ‘public conveyance’ one, therefore, the provision under section 43 of the N.D.P.S. Act would not be attracted. Even though P.W.1 stated to have made the station diary entry no.348 dated 18.10.2014 and further stated to have intimated the same to his authorities i.e. S.D.P.O., Phulbani and S.P., Kandhamal but the relevant two documents i.e, station diary entry (Ext.33) and intimation (Ext.30) have not been Page 25 of 33 // 26 // proved through P.W.1. P.W.8 has proved those two documents. The station diary entry no.348 dated 18.10.2014 vide Ext.33 reads as follows:- “By this time, received information from reliable sources that three persons in a white colour TATA 407 Pick Up Van vide Regd. No.OR-12-B- 3251 has procured Ganja and are transporting the same to some other places for wrongful pecuniary gain and are likely to pass through Gochhapada to Balandapada side. The fact is intimated to my senior authority into telephone noted in S.D. for future reference.” The station diary entry no.349 dated 18.10.2014 indicates that with reference to the S.D. No.348, one primary intimation report was prepared and sent to the superior authorities i.e. S.P., Kandhamal and S.D.P.O., Phulbani through constable S.Digal. The intimation which is stated to have been given to Superintendent of police, Kandhamal, Phulbani and marked as Ext.30 reads as follows: “To The Superintendent of Police, Kandhamal, Phulbani Ref: Station Diary Entry No.350 Dtd.18.04.2011 of Sadar PS, Phulbani Page 26 of 33 // 27 // Sub: Intimation regarding proposed raid to explore the possibility of detection and seizure of ganja i.e., flowering and fruiting tops of cannabis plant in compliance to section 42 of the N.D.P.S. Act. Sir, In inviting a reference to the subject cited above, I am to intimate you that today i.e. on 18.10.2014 at about 9.30 a.m. on receipt of reliable information that three persons in a white colour TATA 407 Pick Up Van vide Regd. No.OR- 12-B-3251 has procured Ganja and are transporting the same to some other place to wrongful pecuniary gain and are likely to pass through Gochhapada-Balandapada road, the persons, namely, (1) Bablu Sahu (21), S/o- Basanta Sahu of village-Rundimahala, P.S.- Kantamal, Dist.-Boudh, (2) Girish Sahu (30), S/o-Sudarsana Sahu of village-Kenkemanji, P.S.-Kantamal, Dist.-Boudh and (3) Abhimanyu Digal (26), S/o- Santosh Digal of village- Salapsahi, P.O.-Kasinipadar, P.S.-Phiringia, Dist.-Kandhamal, one is driver and other two persons were sitting beside the driver and 08 nos. of big plastic bag and one jute bag filled with something, were kept inside the Dala of the vehicle. As from the first look, it seems to be the one as per the information received, i.e. flowering and fruiting tops of cannabis plant Page 27 of 33 // 28 // which they have procured early in the morning from the nearby locality. Under the above circumstances, search warrant as per provision 41 N.D.P.S. Act could not be obtained without affording an opportunity to the traders to pass on the contraband article to different hands. So, it is proposed to conduct an immediate raid without warrant by a raid party comprising of myself to ascertain the veracity of the information and explore the possibility of detection and seizure of ganja. This is for favour of kind information. Yours faithfully, Sd/- (illegible) Baba Sankar Saraf OIC, Gochhapada P.S. Phulbani” Thus it would be apparent that even though while recording the station diary entry no.348 dated 18.10.2014, the names of the appellants have not been mentioned and even P.W.1 who made such station diary entry has not stated that he was made aware about the names of the persons who were transporting ganja in a vehicle, but surprisingly, the names as well the numbers of bags the appellants were carrying in the vehicle are mentioned in Ext.30. If according to P.W.1, reliable information was received only to the extent that three persons Page 28 of 33 // 29 // were transporting ganja in a vehicle and who were those three persons was not informed to him nor it was informed in how many plastic bags and jute bag, ganja was being transported, the mentioning of the names of the appellants and number of bags in Ext.30 indicates that it was not prepared prior to proceeding for raid but was prepared after detection and seizure to make out a case of compliance of section 42 of N.D.P.S. Act. Even though it is stated by P.W.1 that the information was given to S.D.P.O, Phulbani and station diary entry no.349 dated 18.10.2014 indicates that primary intimation report was prepared and sent to the superior authorities i.e. S.P., Kandhamal and S.D.P.O., Phulbani through constable S.Digal, but the relevant document so far as S.D.P.O., Phulbani is concerned has not been proved by the prosecution to corroborate the evidence of P.W.1. The letter (Ext.30) which has been sent to Superintendent of Police, Kandhamal dated 18.10.2014, nowhere mentioned about the station diary entry no.348 dated 18.10.2014, the enclosure to Ext.30 is station diary entry no.350 dated 18.10.2014. The said S.D. Entry No.350 dated 18.10.2014 reads as follows: “As there is no time to obtain search warrant with regard to provision of section 41 of the Page 29 of 33 // 30 // N.D.P.S. Act, prepared a raid party comprising of myself along with ASI R.B.R. Reddy, C/19 S. Digal, C/541 M.K. Nayak, C/170 J.M. Nanda, C/520 B.Sahu, C/613 S.D. Sethi, AP/63 Aswini Nayak. Unless a immediate raid is conducted, the ganja cannot be detected and it will pass to other hands for illegal trade. Hence, I along with above noted team members left P.S. to verify the veracity of the information and to detect ganja and handed over the diary charge to S.I. B.D. Routray with no accused in the P.S. lock up.” Station diary entry no.348 of 2014 was required to be dispatched along with the intimation letter under Ext.30 but the same has not been done. Moreover, the evidence of P.W.1 is silent that any intimation in writing is given to S.D.P.O., Phulbani rather P.W.1 has stated that he had telephoned to the S.D.P.O, Phulbani through his mobile but he could not recollect the telephone number of S.D.P.O., Phulbani. Neither S.P., Kandhamal and S.D.P.O., Phulbani nor any of their staff were examined to prove about receipt of such primary intimation report nor any register from the office of S.P., Kandhamal nor from the office of S.D.P.O., Phulbani has been proved to substantiate the same. Page 30 of 33 // 31 // 10. In view of the foregoing discussions, it is apparent that the station diary entry which was made after receipt of the reliable information and was supposed to be sent to the immediate official superior has not been sent rather another station diary entry has been forwarded only to Superintendent of police, Kandhamal. In view of recital of station diary entry no.348 dated 18.10.2014 so also the evidence of P.W.1 wherein the names of the accused persons involved in the crime are not there as per the reliable information, the mention of the names of the appellants in Ext.30 including number of plastic bags and jute bag used for transporting ganja is a suspicious feature and primary intimation report sent to S.D.P.O., Phulbani who is the immediate official superior of P.W.1 having not been proved, it is very difficult to accept that the prosecution has successfully established the compliance of the mandatory provisions under section 42 of the N.D.P.S. Act. In my humble view, the same would itself be a factor to acquit the appellants of the charge in as much as law is well settled 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 causes prejudice to the accused. Page 31 of 33 // 32 // In view of the settled principle of law, since there has been non-compliance of section 42 of the N.D.P.S. Act, the impugned judgment and order of conviction of the appellants is not sustainable in the eye of law. Accordingly, all the criminal appeals are allowed. The impugned judgment and order dated 06.04.2016 passed by the learned Addl. Sessions Judge & Special Judge, Phulbani in G.R. Case No.74 of 2014 is hereby set aside and the appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. Intimation has been received from the learned trial Court which is dated 13.03.2023 that the appellant Bablu @ Bulu @ Minaketan Sahu in CRLA No. 274 of 2016 is now in judicial custody after he surrendered on 13.03.2013. It further appears from the case record of CRLA No.275 of 2016 that the appellant Girish Sahu even though was granted interim bail but he has not availed the same and he is now in judicial custody. So far as appellant Abhimanyu Digal in CRLA No.282 of 2016 is concerned, even though he was released on interim bail, but he has not surrendered at right time, for which non-bailable warrant of arrest has been issued against him by the learned trial Court. Page 32 of 33 // 33 // The appellant Bablu @ Bulu @ Minaketan Sahu in CRLA No.274 of 2016 and appellant Girish Sahu in CRLA No.275 of 2016 shall be set at liberty forthwith, if their detention is not required in any other case. So far as appellant Abhimanyu Digal in CRLA No.282 of 2016 is concerned, in view of the acquittal order passed today, the learned trial Court shall recall the non-bailable warrant of arrest issued against him. Copy of the judgment along with trial Court record shall be sent to the learned trial Court immediately for compliance. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 16th March 2023/Pravakar Page 33 of 33