The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.318 of 2016 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 20th May, 2016 passed by the learned Additional Sessions Judge and Special Judge, Phulbani in G.R. Case No.41 of 2015. 1. Suka Parida @ Chuta; and 2. Krishna Chandra Barik ---- -versus- …. Appellants State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.B.K. Nayak-3 (Advocate for Appellant No.1) Mr.B.P. Dhal (Advocate for Appellant No.3) For Respondent - Mr.S.K. Nayak Additional Government Advocate
Legal Reasoning
CORAM MR. JUSTICE D.DASH Date of Hearing : 26.04.2024 : Date of Judgment : 01.05.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 20th May, 2016 passed by the learned Additional Sessions Judge CRLA No.318 of 2016 Page 1 of 10 and Special Judge, Phulbani in G.R. Case No.41 of 2015 corresponding to Phiringia P.S. Case No.37 of 2015. The Appellants (accused persons) thereunder have been convicted for commission of the offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, each of them has been sentenced to undergo rigorous imprisonment for ten (10) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) for commission of the said offence. 2. The prosecution case, in short, is that on 19.04.2015, the Sub-Inspector (S.I.) of Police, Phiringia P.S. (P.W.1), as per the direction of the then Officer-in-Charge (O.I.C.-P.W.10), had been to Telimunda Chhak on patrol duty. It was around 8.30 a.m., he found a white colour Indigo Car coming from Kelapada side towards Telimunda. The said vehicle, being detained, two of the occupants managed to escape and one among the three was apprehended and the person apprehended was then on the driver seat and he disclosed his name to be Gobinda Naik. The vehicle, being searched, two plastic bags kept inside the dickey of the car were recovered. The driver Gobinda Naik, being asked about the contents of the said bags, had disclosed those to be ganja. It is stated that at that point of time, the S.I. of Police (P.W.1) found a motorcycle coming from Kelapada side with two riders and a bag CRLA No.318 of 2016 Page 2 of 10 had been kept in between them. So, he (P.W.1) immediately detained the said motorcycle and deputed a staff to keep watch on them. He (P.W.1), having completed the search of the car, came near the motorcycle and those two persons, who when going on the motorcycle, had been detained. They too, being asked about the contents of the said bag that they were carrying, told that the same were ganja. They disclosed their names to be Suka Parida and Krushan Chandra Barik (accused persons before this this Court in this Appeal). The bag was searched and ganja was said to have recovered therefrom and accordingly, those were seized under seizure list Ext.3 prepared in presence of the Executive Magistrate. The content of that bag, being weighed, came to 21 kgs and 100 grams. He (P.W.1) then collected two samples each weighing 50 grams after thoroughly mixing the ganja and then sealed, labeled and seized the bulk quantity of ganja as well as ganja collected as samples. Having returned to the Police Station with the accused persons and the seized material and other documents, he (P.W.1) reported the matter in writing (Ext.8) to the O.I.C. (P.W.10), who then kept all those seized articles in P.S. Malkhana and it was around 7.30 p.m, he (P.W.10) having arrested the accused persons, on the next day, forwarded the accused persons in custody to Court. He (P.W.10), having brought the seized articles from the P.S. Malkhana, CRLA No.318 of 2016 Page 3 of 10 produced those before the Court of the learned Special Judge, Phulbani and made a prayer to send one part of the seized samples to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar and allow keeping of the bulk quantity of ganja in the Court Malkhana. As directed, learned Sub-Divisional Judicial Magistrate, Phulbani sent one sealed paper packet said to be containing ganja of 50 grams collected by the S.I. of Police (P.W.1) on 19.4.2015 (Ext.A), which was further marked at its level Ext.A/1 for chemical examination to State Forensic Science Laboratory. The report came that those were the fruiting and flowering tops of cannabis plant, i.e., ganja. So, the O.I.C. (P.W.10), at the end, submitted the Final Form placing these two accused persons, who, while coming on the motorcycle, were detained and searched followed by recovery of ganja as alleged from them, to face the trial under section 20(b)(ii)(C) of the N.D.P.S. Act. 3. The Trial Court, on going through the evidence of all the witnesses examined from the side of the prosecution (P.Ws.1 to 10) and defence (D.W.1) and upon scrutiny examination of the documents admitted in evidence (Exts.1 to 20), has negated the contentions raised from the side of the defence as regards non- compliance of section 42 and 43 as well as section 50, 55 and 57 of the N.D.P.S. Act and then, having found the evidence as to search CRLA No.318 of 2016 Page 4 of 10 and seizure to be clear, cogent and acceptable, has held the accused persons guilty of commission of offence for which they stood charged. Accordingly, they have been convinced as afore- stated. 4. Learned counsels for the Appellants (accused persons) submitted that the S.I. of Police (P.W.1), having recovered the bag said to be containing ganja from the motorcycle in which these accused persons were said to be coming when detained on the way, has not forwarded the same either to the O.I.C. (P.w.10) of the P.S. or to the officer empowered under section 53 of the Act and instead, he himself at the spot, had drawn two samples from the bag and that to, the collection of the samples has been made after mixing the contents of the bag thoroughly, which is said to be ganja and such action on the part of S.I. of Police (P.W.1) is said to be in total violation of the provision contained in section 52-A of the N.D.P.S. Act. According to him, the drawal of the samples from the packet at the time of seizure, is not in conformity with what has been held in Union of India -V- Mohanlal & Another; (2016) 3 SCC 379 and, therefore, serious doubt is created about the prosecution case that the substance recovered was contraband. CRLA No.318 of 2016 Page 5 of 10 5. Mr. S.K. Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against the accused persons, as has been returned by the Trial Court, submitted that there, being no materials to cast any doubt on the evidence of the S.I. of Police (P.W.1) that there was any tampering with contents of the bag, which was seized from the motorcycle or with that sample and when that has also not been noticed by the learned S.D.J.M., Phulbani, while forwarding the same for chemical examination to State Forensic Science Laboratory, it has to be held that there has been substantial compliance of the provisions of Section 52-A of the N.D.P.S. Act and there has been no prejudice caused to the accused persons. 6. I have perused the impugned judgment of conviction passed by the Trial and Court and have also extensively travelled through the evidence of all the witness, i.e., P.Ws.1 to 10 and D.W.1, more particularly the evidence of S.I. of Police (P.W.1.) and the O.I.C. (P.W.10). 7. In the 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 stipulated CRLA No.318 of 2016 Page 6 of 10 in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the correctness of the list of samples so drawn. the Magistrate and certifying the Police Station or 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 to draw above representative samples in his presence, which samples will then be enlisted and the correctness of 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. including grant of permission 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 CRLA No.318 of 2016 Page 7 of 10 why none of the States claim to be taking samples at the time of seizure.” (Emphasis added). 8. Coming to the case in hand, we find that P.W.1, having detained the motorcycle and directing the other police personnels to guard them for some time, came to that place and then he issued notice to the accused persons under section 50 of the N.D.P.S. Act and requested the learned Sub-Divisional Magistrate to depute one Executive Magistrate to remain present during search and seizure. He states that by that time, he (P.W.1) had intimated the O.I.C. (P.W.10) about the recovery of ganja, which itself creates doubt that how even before seizure and preliminary testing of the contents of the bag, he could inform the O.I.C. (P.W.10) to have recovered ganja. It is his further evidence that after the Executive Magistrate arrived, the person called to weigh the contents of the bag, came. He (P.W.1), having given his personal search and introducing the Executive Magistrate to the accused persons searched their persons when no such contraband was recovered and thereafter, the bag, in possession of the accused persons, being weighed, its gross weight came to 21 kgs 575 grams, and the net weight came to 21 kgs 100 grams. Most importantly, P.W.1 has stated to have collected two samples, which weighing 50 grams after thoroughly mixing the CRLA No.318 of 2016 Page 8 of 10 ganja and have sealed, labeled and seized the bulk quantity of ganja and he states to sample ganaja. It is finally seen from Ext.13, the forwarding report of the S.D.J.M., Phulbani that the sealed paper packets containing sample of 50 grams of the contents of the bag collected by P.W.1 on 19.04.2015 had been sent to S.F.S.L. for chemical examination being marked as Ext.A1, which had been marked by P.W.1 as Ext.A at the spot. Thus, the act of P.W.1 drawing samples from the bag at the time of seizure is not in conformity with what has been held in case of Mohanlal (Supra). As per the decision of the Hon’ble Apex Court in case of Bhotilal -V- 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. 9. Therefore, in my considered view, the case of the prosecution is not free from suspicion. The prosecution has not proved beyond reasonable doubt that the 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. CRLA No.318 of 2016 Page 9 of 10 10. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 20th May, 2016 passed by the learned Additional Sessions Judge and Special Judge, Phulbani in G.R. Case No.41 of 2015, are hereby set aside. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 02-May-2024 15:28:29 CRLA No.318 of 2016 Page 10 of 10