The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No. 741 Of 2017 From the judgment and order dated 06.11.2017 passed by the Sessions Judge -cum- Special Judge, Kandhamal, Phulbani in G.R. Case No. 02 of 2011. ---------------------------- Sk. Sahir Khan @ Sk. Sahil ……… Appellant -Versus- State of Orissa ……… Respondent For Appellant: - Mr. Anirudha Das For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate JCRLA No. 63 Of 2018 Asfak Alli @ Mohammed Asfak ……… Appellant -Versus- State of Orissa ……… Respondent For Appellant: - Ms. Jyotsnamayi Sahoo (Amicus Curiae) For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate ---------------------------- // 2 // P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and judgment: 22.02.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Sk. Sahir Khan @ Sk. Sahil in CRLA No. 741 of 2017 and the appellant Asfak Alli @ Mohammed Asfak in JCRLA No. 63 of 2018 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 Sessions Judge -cum- Special Judge, Kandhamal, Phulbani in G.R. Case No. 02 of 2011 on the accusation that on 24.01.2011 at about 8.00 p.m. at Ambapada Chhak in the district of Phulbani, they were found transporting 20 kgs. 250 grams of ganja (flowering and fruiting tops of cannabis plant) in one polythene bag, which was of commercial quantity, in contravention of the provision of section 8 of the N.D.P.S. Act. The learned trial Court vide impugned judgment and order dated 06.11.2017 found both the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of fifteen 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 two years. Page 2 of 38 // 3 // Since both 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 24.01.2011 Sri Braja Kishore Sahoo (P.W.7), the Officer in-charge of Phulbani Sadar Police Station received reliable information that two persons were likely to come from Phiringia side on a Pulsar motorcycle and pass towards Phulbani carrying contraband ganja and they would pass Ambapada Chhak within his jurisdiction. P.W.7 entered the said fact in the Station Diary Entry No. 446 on the said date at about 7.30 p.m. and proceeded to Ambapada Chhak along with other police persons, namely, B.D. Sharma (P.W.8), A.S.I. of police and constables Mrutyunjaya Behera (P.W.5), Shesadev Kanhar (P.W.9) and Ranjit Kumar Behera after intimating the fact to the Superintendent of Police, Kandhamal vide letter no.52 dated 24.01.2011 and waited for the arrival of the motorcycle. While they were so waiting, one Pulsar motorcycle bearing registration no. OR-02-BE-2095 came and P.W.7 noticed two persons were on the said motorcycle and the pillion rider was holding a big polythene bag in his hand. P.W.7 along with other police staff intercepted the motorcycle as well as the persons suspecting the bag to be containing Page 3 of 38 // 4 // contraband ganja (flowering and fruiting tops of cannabis plant). On enquiry, P.W.7 came to know that the rider of the motor cycle is Sk. Sahir Khan @ Sk. Sahil (appellant in CRLA No. 741 of 2017) and the pillion rider is Asfak Alli @ Mohammed Asfak (appellant in JCRLA No.63 of 2018). P.W.7 sought option from both the appellants if they wanted to be searched in presence of a Gazetted Officer or an Executive Magistrate. The appellants opted to be searched in presence of an Executive Magistrate. Accordingly, P.W.7 sent requisition to the Sub-Collector -cum- Sub Divisional Magistrate (SDM), Phulbani for deputation of an Executive Magistrate to Ambapada Chhak to remain present at the time of search and seizure. The Executive Magistrate arrived at Ambapada Chhak on 25.01.2011 at about 10.15 a.m. and the appellants were searched in presence of the independent witnesses and the Executive Magistrate. On personal search of the appellant Sk. Sahir Khan @ Sk. Sahil, one Nokia-2690 mobile phone with SIM No. 8895735786 and cash of Rs.300/- were recovered and seized and on personal search of the appellant Asfak Alli @ Mohammed Asfak, nothing was recovered and a polythene bag containing ganja was recovered from the motorcycle, which they were carrying. The weighman Sibaram Padhy (P.W.3) on weighment found the ganja to be 20 kgs 250 Page 4 of 38 // 5 //
Legal Reasoning
decision of this Court in the case of Sambhulal Tibrewal -Vrs.- State of Orissa reported in 2017 (Supp.-II) Orissa Law Reviews 358. It is further argued that the safe custody of the seized articles before its production in Court two days after the seizure is a doubtful feature and there has been non-compliance of the mandatory provision under section 42 of the N.D.P.S. Act and the constable who carried the first report (Ext.15) to the Superintendent of Police, Kandhamal, namely, Sahadev Sethi has not been examined in the case so also the S.P., Kandhamal. Neither the personal brass seal of P.W.7 used for sealing was produced in Court when the seized articles were produced nor during trial. The brass seal impression which is stated to be there in the seizure list was not verified by the Court to compare with the seal impression given on the sample packets as well as bulk ganja packet. Learned counsel for the appellants argued that the impugned judgment and order of conviction is not sustainable in the eye of law and benefit of doubt should be extended in favour of the appellants. Mr. Arupananda Das, learned Addl. Government Advocate, on the other hand, contended that reliable information was received regarding transportation of contraband articles on a motorcycle by P.W.7, the Officer in-charge of Sadar police Page 12 of 38 // 13 // station, Phulbani on 24.01.2011 at about 7.30 p.m. and he made station diary entry which has been marked as Ext.22. P.W.7 specifically stated that the station diary entry was sent to Superintendent of Police, Kandhamal through a constable of Sadar police station, namely, Sahadeba Sethi and the intimation letter has been marked as Ext.15. It is further submitted that P.W.10 Ranjan Bisoi, the A.S.I., SR Section, District Police Office, Phulbani has proved the seizure list marked as Ext.17 which indicates about the seizure of the letter dated 24.07.2011 submitted by P.W.7 under section 42(2) of the N.D.P.S. Act regarding receipt of information about transportation of ganja by the appellants. It is argued that in view of the documentary evidence i.e. Exts. 15, 17 and 22 coupled with the evidence of P.Ws.7 & 10, it is crystal clear that there has been compliance of section 42 of the N.D.P.S. Act. Learned counsel for the State further submitted that P.W.7 has specifically stated that after he returned to police station with the seized articles and the accused persons, the seized articles were resealed and kept in police malkhana and this fact was entered in the police station malkhana vide MR No.3/11 and SDE No.464/25.01.2011 and the extract of malkhana register has been marked as Ext.23 which clearly indicates about the case number and what are the Page 13 of 38 // 14 // properties that were kept in the police station malkhana on 25.01.2011 and about its seizure by P.W.7 and date of receipt of articles at the police station and it further indicates about the date of disposal i.e. articles sent to the District Court malkhana on 27.01.2011 and therefore, the evidence of P.W.7 coupled with the Ext.23 clearly establishes that the articles were kept in safe custody till those were produced in Court. He further argued that the accused persons were produced in the Court on 25.01.2011 after the F.I.R. was registered on 25.01.2011 at about 4.30 p.m. and the next day was Republic Day and P.W.11, the Inspector of Police attached to the District Police Headquarters at Phulbani specifically stated that he was engaged in law and order duty on the Republic Day for which the seized articles and seized ganja along with sample packets were produced in Court on 27.01.2011 and the learned Special Judge, Phulbani passed order by allowing the petition filed by the Investigating Officer to send the sample packet which has been marked as Ext.A/1 to State Forensic Laboratory, Rasulgarh, Bhubaneswar and the sample on chemical examination was found to be ‘ganja’ and therefore, the contention of the learned counsel for the appellants that there is no cogent evidence relating to keeping the seized ganja in safe custody is not acceptable. He further Page 14 of 38 // 15 // argued that the forwarding report of the sample packet clearly indicates that two sample packets each weighing 25 grams were collected, packed and sealed in presence of the Executive Magistrate and witnesses present at the spot and marked as Ext.A/1 and Ext.A/2 and seized along with bulk ganja marked as Ext.A and the Ext.A/1 was sent to State Forensic Laboratory, Rasulgarh, Bhubaneswar for chemical examination and the chemical examination report which is marked as Ext.20/2 indicates that the parcel consisting of one card board box which was enclosed within the cloth cover and sealed with the impression of the seal corresponding to the seal impression forwarded and it contained one sealed paper packet marked as Ext.A/1. Therefore, when articles were sealed at the spot and in the sealed condition, those were kept in police station malkhana on 25.01.2011 and also on 26.01.2011 and produced in Court on 27.01.2011 and the defence has not brought out anything on record that there was any tampering with the seized and sealed articles, merely because the brass seal was not produced in Court and the same was not verified with the seal impression appearing on sample packets Ext.A/1, Ext.A/3 and the bulk ganja packet Ext.A, it cannot be said that there is any lacuna in the prosecution case so that benefit of doubt is to be extended in Page 15 of 38 // 16 // favour of the appellants and therefore, both the appeals should be dismissed. 8. 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 sentence of 15 (fifteen) years was justified in view of section 32-B of the N.D.P.S. Act: On hearing on the question of sentence, the learned trial Court has observed as follows: “Heard. It is submitted by the learned counsel for the convicts that the convicts are first offenders. They are young and are the sole bread earners of their families. They may be leniently death with. The learned Special P.P. canvassed that the of late there has been proliferation of ganja trade in the Kandhamal district. The convicts may accordingly be treated with a heavy hand. The convicts were consciously transporting commercial quantity of ganja obviously for commercial gain. It is common knowledge that the forest cover of Kandhamal district has depleted in the recent past owing to the infiltration of widespread ganja cultivation. Young men like the convicts get Page 16 of 38 // 17 // attracted to the lure of the lucre associated with ganja trade. Ganja has definite adverse impact on the society. The convicts accordingly deserve no leniency. The convicts are accordingly sentenced to undergo R.I. for a period of 15 (fifteen) years and pay fine of Rs.1,00,000/- (one lakh) each under section 20(b)(ii)(C) of the N.D.P.S. Act, subject to set off under section 428 Cr.P.C. In default of payment of fine, to undergo R.I. for a period of two years. The seized Pulsar motorcycle bearing the fake registration no.OR-02-BE-2095 and the seized ganja be confiscated to the State in terms of section 60 of the N.D.P.S. Act, seized Nokia 2690 mobile phone with SIM no.8895735786 and cash of Rs.300/- (three hundred) seized from convict Sahir Khan be returned to him, four months after the expiry of the appeal period and in case of appeal subject to orders thereof.” 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 Page 17 of 38 // 18 // 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 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 Page 18 of 38 // 19 // 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; (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 fifteen years, the learned trial Page 19 of 38 // 20 // 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 24.01.2011 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 Page 20 of 38 // 21 // 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 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 Page 21 of 38 // 22 // 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 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: Page 22 of 38 // 23 // “8. 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. 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.” Page 23 of 38 // 24 // In case of State of Punjab -Vrs.- Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, it is 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 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 Page 24 of 38 // 25 // 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 substance in a public place where such possession appears to him to be unlawful.” In the case in hand, P.W.7, the Officer in-charge of Sadar Police Station, Phulbani has stated that on 24.01.2011 at about 7.30 p.m., he got information that two persons were transporting some contraband articles from Phiringia side to Phulbani on a motorcycle and on receipt of the information, he made station diary entry and sent the copy of the station diary to Superintendent of Police, Kandhamal through the constable of Sadar Police Station, namely, Sahadeba Sethi and then proceeded to the spot. P.W.5 Mrutunjaya Behera stated that on 24.01.2011, he was working as police constable attached to Phulbani Sadar Police Station and on that day at about 7.30 p.m., P.W.7 received the information regarding transportation of ganja in two motorcycles and directed him as per the command certificate to accompany him to the spot. P.W.8 Bibhudatta Sharma, who was working as A.S.I. in the Sadar Police Station, Phulbani has also stated that on 24.01.2011 at about 7.30 p.m., P.W.7 received Page 25 of 38 // 26 // reliable information that two unknown persons were coming from Phiringia side to Phulbani side on a motorcycle carrying some contraband articles with them and on receipt of the information, P.W.7 commanded constable Sahadeba Sethi to intimate the said information to Superintendent of Police, Kandhamal through a letter and then he along with other constables proceeded to the spot. P.W.9 was another constable attached to the Phulbani Sadar Police Station and he stated that P.W.7 received a reliable information regarding transportation of contraband article by some unknown persons from Phiringia to Phulbani and P.W.7 entered the information in the station diary and commanded him to accompany him to the place of occurrence. The extract of the station diary entry no.466/24.01.2011 has been marked as Ext.22 by P.W.11. Therefore, there are ample oral and documentary evidence available on record that reliable information was received by P.W.7 regarding transportation of contraband articles from Phiringia side towards Phulbani on a motorcycle by two persons and on the basis of which, Station Diary Entry No.446/24.01.2011 vide Ext.22 was made. It is, of course correct that the constable who carried the letter along with the copy of the station diary to Superintendent of Police, Kandhamal, namely, Sahadeb Sethi has not been examined in Page 26 of 38 // 27 // the case so also the S.P., Kandhamal, however, P.W.10 who was working as A.S.I., S.R. Section, District Police Office, Phulbani has proved the seizure of the letter sent by P.W.7 along with the copy of the station diary as per seizure list marked as Ext.17. The Station Diary Entry No. 446/24.01.2011 of Phulbani Sadar Police Station reads as follows: “At this hour, received information from reliable sources that two persons are coming from Phiringia side towards Phulbani on a Pulsar motor cycle carrying a bag containing ganja without any licence or authority and they are likely to cross Ambapada Chhak at about 8 P.M. noted the fact in S.D. As I along with ASI B.D. Sharma, C/16 Sesadeba Kanhar, C/15 Ranjit Kumar Behera, C/08 Mrutyunjaya Behera are going to Ambapada Chhak, D/C left with OASI, N. Kanhar with no accd. In PS lock up. Intimate this fact to S.P. Kandhamal vide Letter No.52/Sadar PS Dtd.24.01.2011 as required under section 42(2) N.D.P.S. Act and issued C.C. No.42527 Dtd.24.01.2011 to Constable 197/ Sahadeba Sethi with direction to deliver the intimation letter as quick as possible in the office of S.P., Kandhamal.” Page 27 of 38 // 28 // The letter of P.W.7 to Superintendent of Police, Kandhamal which has been marked as Ext.15 reads as follows: “To The Superintendent of Police, Kandhamal, Phulbani Ref: Station Diary Entry No.446 Dtd.24.01.2011 of Sadar PS, Phulbani Sub: Intimation regarding receipt of information as regards transportation of ganja by two persons on a pulsar motorcycle. As required under section 42(2) of the N.D.P.S. Act. Sir, I beg to submit that today i.e. on 24.01.2011 at about 7.30 PM while at Sadar P.S. received information from reliable source that two persons are coming from Phiringia side to Phulbani on a Pulsar motorcycle carrying ganja on a bag without any authority or licence and they are likely to cross Ambapada Chhaka of Sadar PS at about 8 PM. I entered this fact in Sadar P.S. S.D.E. No.446 Dtd.24.01.2011 (copy enclosed) and rushed to Ambapada Chhaka without causing any delay along with staffs to detect the said motorcyclist carrying ganja. This is for favour of information as per section 42(2) of N.D.P.S. Act and necessary action. Page 28 of 38 // 29 // Yours faithfully, OIC, Sadar PS Phulbani” Ext.17, the seizure list indicates that it was seized from P.W.10 and in the description of the seized articles, the document has been mentioned as follows: “4. (i) Original Letter No.52/Sadar P.S. Dtd.24.01.2011 submitted by O.I.C., Sadar PS to S.P., Kandhamal under section 42(2) N.D.P.S. Act regarding receipt of information about transportation of ganja by accd. persons on V/C from Phiringia side towards Phulbani.” Specific questions relating to compliance of section 42 of the N.D.P.S. Act have been put to both the appellants in the accused statements, but except telling that ‘it is false’, no other material has been adduced by the defence regarding non- compliance of the provision under section 42 of the N.D.P.S. Act. In view of the foregoing discussions and particularly the evidence of the official witnesses so also the documentary evidence, I am of the humble view that the prosecution has successfully proved that there has been compliance of section 42 of the N.D.P.S. Act. Page 29 of 38 // 30 // (iii) Retention of seized contraband articles in safe custody: Regarding safe custody of the seized contraband articles after it was brought to the police station by P.W.7, it appears from the evidence of P.W.7 that he returned to the police station with the seized articles and the accused persons and the seized articles were resealed and kept in police malkhana by making necessary entry in the malkhana register vide 03/2011 SDE no.464/25.01.2011. The extract of the entry no.3/2011 of the malkhana register has been marked as Ext.23 from which it reveals what were the seized articles kept in the malkhana on 25.01.2011, who had seized those articles and on what date, when it was dispatched from police station to the District Court malkhana. Not a single question has been put by the defence to P.W.7 on the evidence adduced by him regarding keeping the seized articles in sealed condition in police malkhana after making necessary entries in the malkhana register. It appears from the evidence of P.W.7 that he has sent a detailed report under section 57 of the N.D.P.S. Act to the Superintendent of Police, Kandhamal and the said report has been marked as Ext.16 Page 30 of 38 // 31 // It is true that the accused persons and the statements of the witnesses, seizure lists were produced before the learned Special Judge on 25.01.2011 and the seized articles were not produced on that date, but when the articles were kept in malkhana on 25.01.2011 and the next day was Republic Day and the police officials were engaged in law and order duty and on 27.01.2011 the articles were taken out from the police station malkhana and produced before the Court, it cannot be said that there was inordinate and unexplained delay in production of the seized articles. The prosecution has adduced oral as well as documentary evidence relating to the safe custody of the seized articles in the police station malkhana and the defence is unsuccessful in bringing anything on record that there was any scope for tampering with the same and the hypothetical argument that since there was delay, there was chance of tampering with the seized articles and the prosecution case is to be discarded, cannot be accepted. (iv) Non-production of the brass seal and paper containing specimen seal impression and absence of comparison thereof at the time of production of seized articles in Court: The seizure list (Ext.7/3) of the seized articles was produced before the learned Special Judge on 25.01.2011 when Page 31 of 38 // 32 // the appellants were forwarded and the seizure list was containing the brass seal impression given by P.W.7 and the same has been marked as Ext.7/9. The seized bulk quantity of ganja and two sample packets which were prepared by P.W.7 at the spot and kept in police malkhana were produced in Court on 27.01.2011 and on that day, prayer was made by P.W.11 by filing two petitions to send the seized exhibit (Ext.A/1) to State Forensic Laboratory, Rasulgarh, Bhubaneswar for expert examination and opinion and to keep the bulk quantity of ganaja marked as Ext.A and the second sample packet marked as Ext.A/2 in Court malkhana. Both the petitions were allowed on 27.01.2011. The order sheet dated 27.01.2011 of the learned Special Judge, Phulbani reads as under: “2/27.01.2022 The case record is put up today. The I.O. R. K. Thait has filed a petition praying to send the seized exhibits to SFSL, Rasulgarh, Bhubaneswar for expert examination and opinion on the grounds stated therein.
Arguments
grams. Sample packet in duplicate each containing 25 grams each was taken from the seized ganja. P.W.7 after observing formalities of search and seizure, seized the bulk quantity of contraband ganja and two sample packets and marked as ‘A’. ‘A/1’ and ‘A/2’ along with the Pulsar motorcycle from the appellants in presence of the Executive Magistrate and the local witnesses and sealed the packets using his personal brass seal and kept the brass seal in the zima of Nrusingha Charan Panda (P.W.1) by executing zimanama and prepared seizure list and after arrest of the appellants, P.W.7 drew up the plain paper F.I.R. at the spot and returned to Phulbani Sadar police station and drew up formal F.I.R. and registered Phulbani Sadar P.S. Case No.04 dated 25.01.2011, kept the seized articles in the police malkhana after resealing the same and making necessary entry in the malkhana register and took up investigation as no other officer above the rank of Sub-Inspector was available. P.W.11, the Inspector of Police, District Headquarters, Phulbani took over the charge of investigation from P.W.7 as per the order of the Superintendent of Police, Kandhamal, examined the witnesses, visited the spot and prepared spot map, produced the appellants on 25.01.2011 and the seized contraband articles on 27.01.2011 and on his prayer, Page 5 of 38 // 6 // as per the order of the Court, the sample packet (Ext.A/1) was sent for chemical examination and the bulk ganja packet (Ext.A) and sample packet (Ext.A/2) were kept in Court Malkhana, the details of the offending motorcycle was obtained through R.T.O., Bhubaneswar, detail report under section 57 of N.D.P.S. Act was submitted before S.P., Kandhamal and on completion of investigation, charge sheet was submitted against the appellants on 11.05.2011 under section 20(b)(ii)(C) of the N.D.P.S. Act. 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 eleven witnesses. P.W.1 Nrusingha Charan Panda and P.W.2 Chitaranjan Pradhan, who are independent witnesses, did not support the prosecution case and have been declared hostile by the prosecution. P.W.3 Sibaram Padhi, who was the weighman, did not support the prosecution case and he was declared hostile by the prosecution. Page 6 of 38 // 7 // P.W.4 Ramesh Chandra Behera, who was working as police constable in Sadar police station, Phulbani, was issued with command certificate for carrying the ganja sample packets to S.F.S.L., Rasulgarh, Bhubaneswar. He proved his signature on the command certificate (Ext.10). P.W.5 Mrutunjaya Behera, who was working as police constable in Sadar police station, Phulbani, has stated that as per the command certificate dated 24.01.2011 issued by P.W.7, he along with P.W.7 and other police staff proceeded to Ambapada Square near Sadar police Station, Phulbani. He stated about search and seizure of contraband ganja from the possession of the appellants in the Pulsar motorcycle. He is a witness to the seizure of bulk ganja packet as well as sample ganja envelopes as per seizure list Ext.7/3. He has also proved M.O.I, the bulk ganja packet and M.O.II the sample ganja packet. P.W.6 Miss Chinmayee Kanhar, was working as Revenue Officer in the office of the Sub-Collector, Phulbani in whose presence the personal search and seizure of both the appellants was conducted pursuant to the requisition vide Ext.12. She has also proved the seizure list marked as Ext.2/2 and her signature Ext.2/3 on the said seizure list in respect of Page 7 of 38 // 8 // the appellant Sk. Sahir Khan and also proved the seizure list marked as Ext.3/2 and her signature Ext.3/3 on the said seizure list in respect of the appellant Asfak Alli. She is also a witness to the seizure of bulk ganja, sample ganja packets as well as motorcycle as per seizure list Ext.7/3. P.W.7 Braja Kishore Sahu, who was the officer in- charge of Sadar Police Station, Phulbani, not only detected the offence and conducted search and seizure, but was the initial Investigating Officer of the case. P.W.8 Bibhudatta Sharma, A.S.I. of Police, Sadar P.S., Phulbani was one of the members of the raiding party and stated about recovery of contraband ganja from the possession of the appellants. P.W.9 Shesadev Kanhar was the constable attached to Sadar 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. He is a witness to the seizure list as per Ext.7/3. P.W.10 Ranjan Bisoi, who was working as A.S.I., SR Section, District Police Office, Phulbani, is a witness to the seizure of detailed report (Ext.15) vide seizure list Ext.17. Page 8 of 38 // 9 // P.W.11 Rohit Kumar Thait, who was the Inspector of Police attached to the District Police Headquarters, Phulbani, on being directed by the Superintendent of Police, Phulbani took over charge of investigation from P.W.7. He has proved the spot map marked as Ext.18 being prepared by him. He has also proved the prayer made by him to the learned trial Court to send one of the sample packets (Ext.A/1) to S.F.S.L., Bhubaneswar as per Ext.19 and also the prayer made to keep the bulk ganja (Ext.A) and the second sample packet (Ext.A/2) in the Court malkhana as per Ext.19/1. He has also proved the requisition to send the sample packet to SFSL as per Ext.20 and also the CE report as per Ext.20/2. He is also a witness to the zimanama as per Ext.21. He has also proved the requisition made to R.T.O., Bhubaneswar as per Ext.24. The prosecution exhibited twenty five documents. Ext.1/2 is the written consent of appellant Asfak Alli, Ext.2/2 is the seizure list in respect of seizure of Nokia Mobile Phone bearing SIM No.8895735786 and three numbers of hundred note, Ext.3/2 is the search list, Ext.4/3 is the seizure list in respect of seizure of weighing instrument, Ext.5 is the seizure list of brass seal, Ext.6/2 is the written consent of appellant Sk. Sahir Khan @ Sk. Sahil, Ext.7/3 is the seizure list in respect of Page 9 of 38 // 10 // seizure of motorcycle bearing registration No. OR-02-BE-2095, polythene bag containing 20 kgs. 200 grams of ganja, sample ganja and brass seal, Ext.7/9 is the brass seal impression of P.W.7 in Ext.7/3, Exts.9 & 21 are the zimanamas, Ext.10 is the command certificate, Ext.11 is the seizure list in respect of seizure of station diary and malkhana register of Phulbani Sadar police station, Ext.12 is the requisition of Sub- Collector, Phulbani, Ext.13 is the requisition issued to Sub-Collector, Phulbani, Ext.14 is the written report of F.I.R., Ext.14/2 is the formal F.I.R., Ext.15 First report submitted to S.P., Kandhamal, Ext.16 is the detailed report submitted to S.P., Kandhamal, Ext.17 is the seizure list with regard to seizure of detailed report, Ext.18 is the spot map, Ext.19 is the prayer of the I.O. to send the sample packets to S.F.S.L., Bhubaneswar, Ext.19/1 is the prayer of the I.O. to keep the bulk ganja at Court Malkhana, Ext.20 is the requisition to S.F.S.L., Bhubaneswar, Ext.20/2 is the chemical examination report, Ext.22 is the extract of the Station Diary Entry No.446, Ext.23 is the extract of Entry No.3/2021 of Malkhana Register, Ext.24 is the requisition to R.T.O., Bhubaneswar, Ext.24/2 is the reply to R.T.O., Bhubaneswar and Ext.25 is the requisition dated 29.03.2011. Page 10 of 38 // 11 // The prosecution also proved two nos. of material objects i.e. M.O.I is the bulk ganja packet and M.O.II is the sample ganja packet. 6. The learned trial Court after assessing the oral as well as documentary evidence on record, has been pleased to hold that the evidence of P.Ws.5, 7, 8 and 9 is trustworthy and their evidence has also been corroborated by the Executive Magistrate (P.W.6). It is further held that the bag containing the contraband articles which was seized from the motorcycle in question was used by the appellants and thus, they had the power and control over the same. Accordingly, the learned trial Court found the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act. 7. Mr. Anirudha Das, learned counsel appearing for the appellant in CRLA No. 741 of 2017 and Ms. Jyotsnamayee Sahoo, learned Amicus Curiae appearing for the appellant in JCRLA No. 63 of 2018 contended that the sentence of fifteen years which was imposed on both 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. Reliance was placed upon the Page 11 of 38 // 12 //
Decision
Heard. The petition is allowed. Send the exhibits to S.F.S.L., for examination. (Dictated) Spl. Judge, I/c Page 32 of 38 // 33 // Later/27.01.2011 The I.O. has also filed another petition praying to keep Exhibit. ‘A’ and Exhibit ’A/2’ in Court malkhana. Heard. The petition to keep the Exhibit ‘A’ and Exhibit ’A/2’ in Court malkhana is allowed. Malkhana Clerk is directed to receive the M.O.s. PO is on leave. (Dictated) Spl. Judge, I/c” On a plain reading of the order sheet, it is apparent that learned Special Judge in-charge before whom the seized articles were produced has not mentioned that the seized exhibits which were produced before him was in sealed condition and that he compared the seal impression appearing on the seized exhibits with that of Ext.7/9 which is appearing on the seizure list marked as Ext.7/3. Admittedly, the bras seal which is stated to have been handed over by P.W.7 to P.W.1 was not produced and P.W.1 has not supported the prosecution case and has been declared hostile. When the seized contraband articles were produced in Court and the brass seal with which those were sealed was not produced, the learned Court was required to verify whether the seal in the seized articles were intact or not and whether the seal given in the seized articles tallied with the seal impression which was available in the seizure list or seal Page 33 of 38 // 34 // impression, if any, given in any separate sheet and in absence of such verification and mentioning the same specifically in the order sheet of the case record, it cannot be said with certainty that the prosecution has successfully established that the seal was intact right from the beginning it was given and there was no scope for tampering with the same particularly when the seized bulk ganja packet along with two sample packets were produced in Court two days after it was kept in the police Malkhana. On this vital aspect, no laches either on the part of the I.O. or the Court is permissible and the prosecution is required to adduce clinching evidence that there was no scope with tampering with the articles or seal during the period of retention. Law is well settled as held in the case of Herasha Majhi -Vrs.- State of Odisha reported in 2020 (I) ILR-CUT- 197 that the prosecution has to prove that the contraband articles produced before the Court were the very articles which were seized and the entire path has to be proved by adducing reliable, cogent, unimpeachable and trustworthy evidence. Since the punishment is stringent in nature, any deviation from it would create suspicion which would result in giving benefit of doubt to the accused. Page 34 of 38 // 35 // In the case of Ramakrushna Sahu (supra), it is held as follows:- "Rule 119 of the Orissa Police Rules which deals with malkhana register states, inter alia, that all the articles of which police take charge, shall be entered in detail, with a description of identifying, marks on each article, in a register to be kept in P.M. form No. 18 in duplicate, and a receipt shall be obtained whenever any article or property of which the police take charge is made over to the' owner or sent to the Court or disposed of in any other way and these receipt shall be numbered serially and filed, and the number of receipts shall be entered in column No. 7. Therefore, it is clear that whenever any article is seized and kept in police malkhana, details thereof should be entered in the malkhana register and while taking it out, the entry should also be made in such register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court." In case of Sinic Patricia -Vrs.- State of Orissa reported in (1994) 7 Orissa Criminal Reports 277, it has been held that specimen seal was not produced before the Magistrate when the packets were opened to bring out samples Page 35 of 38 // 36 // for the purpose of sending the same to the Chemical Examiner of State Forensic Science Laboratory. It is for the prosecution to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets during the retention of those packets at the police station and the seized articles were the very articles produced before the Magistrate for sending them to the Chemical Examiner. In the case in hand, even though after the samples were drawn and the seized articles were produced in police station, those were kept in police malkhana as appears from the oral as well as documentary evidence, but in my humble view, it is not sufficient in itself to completely rule out tampering with the same. When the prosecution is not producing the brass seal at the time of production of seized articles and the seizure list containing brass seal impression was produced on 25.01.2011, it was the duty of the learned Special Court to verify at least the brass seal impression appearing on the seizure list with the seal impression available on the sample packets as well as on the bulk quantity of ganja packet which were produced on 27.01.2011 and marked as Exts. A/1, A/2, A and also to verify Page 36 of 38 // 37 // whether the seals appearing on the seized articles are in proper condition or not, but the same has not been done nor verified. Therefore, I am of the humble view that it is a fit case where benefit of doubt should be extended in favour of the appellants. 9. Accordingly, both the criminal appeal and jail criminal appeal are allowed and the impugned judgment and the order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence passed thereunder is hereby set aside. It is stated that the appellant Asfak Alli @ Mohammed Asfak in JCRLA No. 63 of 2018 is in judicial custody and thus, he be released from judicial custody, if his detention is not required in any other case. So far as the appellant Sk. Sahir Khan @ Sk. Sahil in CRLA No. 741 of 2017 is concerned, he is on interim bail as per the order dated 28.11.2022 of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled. The trial Court records with a copy of this judgment be sent down to the learned Court concerned forthwith for information and necessary action. Page 37 of 38 // 38 // Before parting with the case, I would like to put on record my appreciation to Ms. Jyotsnamayee Sahoo, learned Amicus Curiae in JCRLA No.63 of 2018 for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Anirudha Das, learned counsel for the appellant Sk. Sahir Khan @ Sk. Sahil and Mr. Arupananda Das, learned Additional Government Advocate. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 22rd February 2023/PKSahoo/Sipun Page 38 of 38