The High Court · 2020
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.230 of 2020 & CRLA No.260 of 2020 In the matter of an Appeal under Section-374(2) of the Code of Criminal Procedure, 1973 read with Section-36-B of the NDPS Act and from the judgment of conviction and order of sentence dated 20th February 2020 passed by the learned Additional Sessions Judge-cum-Special Judge, Nayagarh in T.R. Case No.23 of 2017 arising out of Special G.R. Case No.96 of 2016 corresponding to Nayagarh P.S. Case No.203 of 2016. ---- CRLA No.230 of 2020 Sanjib Kumar Dehury ..... Appellant -versus- State of Odisha ..... Respondent Raju Kumar Kushwa ..... Appellant CRLA No.260 of 2020 State of Odisha ..... Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ========================================================= For Appellants -
Legal Reasoning
Mr. Bhabani Shankar Rayaguru, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CRLA NOs.230 & 260 OF 2020 Page 1 of 10 CORAM: MR. JUSTICE D. DASH DATE OF HEARING :13.05.2024: DATE OF JUDGMENT: .05.2024 D.Dash, J. Since in both these Appeals, the judgment of conviction and order of sentence dated 22nd February 2020 have been called in question; those had been heard together for disposal by this common judgment. 2. The Appellants, by filing this Appeal, have assailed the judgment of conviction and order of sentence dated 20th February 2020 learned Additional Sessions Judge-cum-Special Judge, Nayagarh in T.R. Case No.23 of 2017 arising out of Special G.R. Case No.96 of 2016 corresponding to Nayagarh P.S. Case No.203 of 2016 of the Court of learned S.D.J.M., Nayagarh. The Appellants (accused persons) have been convicted for offence under section-20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act), and each of them has been sentenced to undergo rigorous imprisonment for a period of ten (10) years and fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for six (6) months. 3. Prosecution case is that on 19th November 2016, the then Inspector-In-Charge (IIC), Nayagarh Police Station received a reliable information that one vehicle loaded with ganja was coming from Daspalla side. Accordingly, he having entered the CRLA NOs.230 & 260 OF 2020 Page 2 of 10 same Station Diary Book maintained at the Police Station, directed the Sub-Inspector of Police attached to the Police Station (P.W.7) to proceed to the place with other Police Officials of the said Police Station. Therefore, they proceeded to the place which was the new bus stand of Nayagarh. Having waited for there some time, it was around 5.30 am, the vehicle came and then signal was given for stoppage of the said vehicle. When the vehicle did not stop, it was chased and intercepted in front of the Telephone Bhawan. The person on the driver’s seat, being asked admitted that the vehicle was loaded with ganja. The I.O. (P.W.7) then telephoned to the IIC and informed him about said detention of the said vehicle. The IIC directed P.W.7 to issue requisition to the Sub-Collector, Nayagarh for deputation of an Executive Magistrate to the spot. Requisition was issued and during the period, the vehicle was kept under guard. It was around 11 am, the Magistrate arrived there and then the search operation was carried out after observing all the formalities. P.W.7 in course of search of the vehicle, found three nos. of air bags containing ganja to have been kept in the dicky of the said vehicle which was opened by the driver-Benudhar. One bag was containing 17 nos. of jari packets, each packets containing ganja and the rest two were found to have been containing 13 kgs. of ganja each. P.W.7 then made homogeneous mixure of the contents of all 17 kgs.; drew two packets of one bag in total parts CRLA NOs.230 & 260 OF 2020 Page 3 of 10 of the sample, each containing 25 grams which were then sealed and seized. Similarly, the contents of the two other packets being mixed homogenous, samples were drawn. It is stated that thereafter, the seizure list was prepared and the sealing was made by P.W.7 using his personal brass seal by putting the impression of the same over the pockets and sample packets. The seal was then given in zima of another person. At the end, the plain paper F.I.R. being drawn was lodged by P.W.7 before the IIC. The accused persons of the seized articles were produced before the Court on 21.11.2016. The I.O. (P.W.7) then made a prayer before the Court for forwarding the sample packets for Chemical Examination. The same being allowed and sent; ultimately the report came that the contents of the sample packets were nothing but ganja. Accordingly, the final form was submitted against these accused persons, who were then found to have been travelling in the said vehicle as the occupants in placing that they were having the full knowledge, regarding carriage and transportation of contraband in the vehicle. 4. The defence case is that of complete denial and false implication. 5. The Trial Corut upon examination of the evidence of the prosecution witnesses i.e. P.Ws.1 to 8 and the documents admitted in evidence and marked as Ext. 1 to Ext.29 has held the CRLA NOs.230 & 260 OF 2020 Page 4 of 10 prosecution to have established the charge under section- 20(b)(ii)(C) of the NDPS Act against the accused persons beyond reasonable doubt. Accordingly, the accused persons have been convicted for the offence under Section-20(b)(ii)(C) of the NDPS Act and sentenced as aforestated. 6. Learned Counsel for the Appellants at the outset submitted that the prosecution in the case is bound to fail as the evidence on record do not at all reveal that the mandatory provision contained in Section-52(A) of the NDPS Act has been complied with. He submitted that the action of P.W.7 in drawing the sample at the spot and then those being sent for Chemical Examination without due and proper verification, when creates grave doubt in mind that the contents of the bags said to have been seized from the vehicle; wherein the accused persons were travelling; if were actually examined in the laboratory, the conviction of the accused persons is rendered vulnerable. In this connection, he has invited the attention of this Court, to the evidence of P.W.7 and the relevant order-sheet of the learned Magistrate who had undertaken the exercise of dispatch of the samples for examination. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 7. Mr. P.K. Mohanty, learned Counsel for the Respondent- State while supporting the finding of guilt as has been returned CRLA NOs.230 & 260 OF 2020 Page 5 of 10 by the Trial Court submitted that in this case, when the evidence on record reveals that there has been substantial compliance of the provision of section-52(A) of the NDPS Act. He next submitted that the samples having been sent for chemical examination through learned Magistrate, who has not pointed any such suspicious feature nor any doubt in the mind, there is absolutely no impediment for finally accepting the result of the said examination. 8. Keeping in view the submissions made; I have carefully read the judgment passed by the Trial Court and I have also extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 8. 9. As per the prosecution case, in the vehicle detained at the spot, these accused persons and others were present inside. P.W.7 says that three packets were recovered from the dickey of the said vehicle and the contents on each of those were weighed. The I.O. (P.W.7) has further stated that samples from each of the packets each weighing 25 grams being collected those were kept in sealed condition using his own brass seal and the specimen impressions of his seal were put over the same. P.W.7 however, during evidence has not stated anything as regards such production of the bags containing residued ganja after drawal of the sample and also the sample packets. The relevant order-sheet of the Magistrate reveals that the seized articles CRLA NOs.230 & 260 OF 2020 Page 6 of 10 including the so called contraband were produced before the learned S.D.J.M., Nayagarh on 22.11.2016. There is absolutely no evidence as to where those packets which were seized containing contraband as also other seized articles remained after seizure till production before the Court on 22.11.2016 and after the order passed by the learned Special Judge on 23.12.2016, how those packets containing contraband and samples packets were dealt and where those were kept. The order sheet of the learned Magistrate dated 22.11.2016 simply reflects that the seized materials being produced; the articles to be sent for chemical examination were marked as Exts.A, B, C, D and E and those were then forwarded being sealed by the learned Magistrate using his brass seal. The order sheet does not reveal that when the articles were produced, when those were all under proper sealed condition and there was no tampering with the same nor any such sign or symptom as to meddling or tampering. It is also not reflected in the order sheet that the brass seal used for sealing the packets and samples had been produced before the learned Magistrate for its comparison and verification as to if the impression of the brass seal and the impression on the seals put on each of the packets and sample packets so collected and produced before the learned Magistrate remained the same. Such an exercise being not made by the learned Magistrate as that is to ensure the safe keeping of the seized articles including the CRLA NOs.230 & 260 OF 2020 Page 7 of 10 contraband and put a check by overruling the question of meddling / tampering with the seized articles, the prosecution is to be viewed with suspicion that the contents of the packets seized were actually examined. 10. In connection with the above, it would be profitable to refer to the decision in case of Union of India -V- Mohanlal & Another; (2016) 3 SCC 379, the Hon’ble Apex Court has held thus:- “15. It is manifest from Section 52-A (2) (supra) that upon seizure of the contraband, the same has to be forwarded either to the Officer-In-Charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as in the said provision and make an stipulated application to the Magistrate for purposes of (a) (b) certifying certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw the in representative samples Magistrate and certifying the correctness of the list of samples so drawn. the correctness of the presence of inventory, the 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allowed the application. This implies that no sooner the seizure is effected and the contraband forwarded to the Officer- the officer In-Charge of empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the Police Station or CRLA NOs.230 & 260 OF 2020 Page 8 of 10 the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.” (Emphasis added). 11. In a recent decision in case of the Hon’ble Apex Court in case of Bhotilal -Vs- Intelligence Officer, Narcotics Control Bureau; 2023 SCC Online SC 498, the same creates a serious doubt about the prosecution’s case that the substance recovered was the contraband. 12. The prosecution evidence as discussed above as also the position as it reveals from the record, when are made to pass through the tests as above laid down, the result is that the prosecution cannot succeed. Therefore, in my considered view, the case of the prosecution is not free from suspicion. The prosecution has not proved beyond a reasonable doubt that the CRLA NOs.230 & 260 OF 2020 Page 9 of 10 accused persons, in this Appeal, were in possession of the contraband. In the circumstance, the judgment of conviction and the order of sentence, impugned in this Appeal, cannot be sustained. 13. In the result, the Appeals are allowed. The judgment of conviction and order of sentence dated 20th February 2020 passed by the learned Additional Sessions Judge-cum-Special Judge, Nayagarh in T.R. Case No.23 of 2017, are hereby set aside. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 23-May-2024 13:32:52 CRLA NOs.230 & 260 OF 2020 Page 10 of 10