The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.488 of 2019 1973 against (An application U/S. 374(2) of the Code of Criminal dated Procedure, 25.02.2019/26.02.2019 passed by Shri Asim Kumar Dalbehera, Judge, Nuapada in Special Act Case No.70 of 2016 arising out of Nuapada P.S. Case No.117 of 2016). learned Sessions-cum-Special order the Chhabilal Banchhor …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. D. Mohapatra, Advocate For Respondent : Mr. S.S. Pradhan, AGA CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :14.08.2024 DATE OF JUDGMENT:21.08.2024 G. Satapathy, J. 1. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short “the Code”) by the convict challenging his conviction and sentence passed in Special Act No.70 of 2016. In the aforesaid case, the learned Sessions Judge-cum-Special CRLA No.488 of 2019 Page 1 of 22 Judge, Nuapada by the judgment dated 25.02.2019 convicted the appellant for commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS Act”) and sentenced him on the next date i.e. 26.02.2019 to undergo Rigorous Imprisonment (RI) for ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh), in default whereof, to undergo RI for further two years with consequential direction for setting off the pre-trial detention of the convict against his substantive sentence. 2. Facts in precise are that on 22.08.2016 in the morning at about 5 AM on receipt of reliable information regarding transportation of Ganja in a Motor Cycle bearing Regd. No.CG-06 PA-2777 by two persons from Kurumpuri side to Raipur side through Sarabong, the IIC, Nuapada PS (PW17) entered such facts in SDE No.22 dated 21/22.08.2016 and proceeded towards Sarabong area along with staffs at 5.30 AM only to find out two persons namely Chhabilal Banchhor CRLA No.488 of 2019 Page 2 of 22 (hereinafter referred to as convict) and one Child in Conflict with Law (CCL) coming from Kurumpuri side by a Hero Honda CBW Motor Cycle with aforesaid registration number by carrying two plastic white bags. On suspicion, PW17 and staffs detained the said Motor Cycle along with the convict and CCL, and recovered Contraband Ganja in presence of independent witnesses PWs.8 and 9 and on weighment, the Contraband Ganja along with polythene bag came to be 28Kgs, out of which the weight of two plastic bags
Legal Reasoning
was 200Grams. PW17 then drew two samples measuring 25Grams each and sealed it as well as the bulk Ganja. On completing all formalities, PW17 seized the bulk Ganja as well as the sample packets and forwarded the same to the learned Special Judge, Nuapada along with convict and the other person, who was later on declared as CCL and his case was separated, by lodging a plain paper FIR vide Nuapada PS Case No.117 of 2016 and handed over the charge of investigation to PW18, who thereafter, did the formality CRLA No.488 of 2019 Page 3 of 22 of investigation and submitted charge-sheet against the convict for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act resulting in trial in the present case, when the convict pleaded not guilty to the charge. 3. In support of its case, the prosecution examined altogether 18 (eighteen) witnesses vide PWs.1 to 18; proved 22(twenty two) documents under Exts.1 to 22 and identified 3 (three) material object under MOI-III as against no evidence whatsoever by the defence. The plea of the convict in the course of trial was denial simplicitor and false implication. Of the witnesses examined in this case, the material witnesses are PWs.2, 8 and 9, who are independent witnesses to the seizure, PW15 is the Assistant Collector, Nuapada, and PWs.17 and 18 are the two Investigating Officer. 4. After appreciating the evidence on record upon hearing the parties, the learned trial Court by relying upon the evidence of seizure witnesses, Investigating Officers and the Assistant Collector found CRLA No.488 of 2019 Page 4 of 22 the accused-convict guilty of the offence and, accordingly, convicted him for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act. After convicting the appellant, the learned trial Court proceeded to sentence him to the punishment indicated in the first paragraph. Being aggrieved with the judgment of conviction and sentence, the appellant has preferred this appeal. 5. In the course of hearing of the appeal, Mr. D. Mohapatra, learned counsel for the appellant, however, by critically analyzing the evidence on record has emphatically submitted that there is not only discrepancies in material evidence, but also non- compliance of Section 42 of NDPS Act which is palpable on the face of record and the Assistant Collector being examined as PW15 has testified in the Court about detection of Contraband Ganja from a bicycle, but the consistent case of the prosecution is seizure of Contraband Ganja from a Motor Cycle, which not only contribute to the suspicion of the prosecution case, but CRLA No.488 of 2019 Page 5 of 22 also makes presence of PW15 at the spot very doubtful and on that score, the prosecution evidence should be rejected in entirety. It is also submitted by him that none of the independent seizure witnesses has ever supported the prosecution case and, thereby, the seizure of Contraband Ganja from the possession of the appellant has not been established by clear, cogent and reliable evidence and, therefore, the mandatory provision of Section 55 of NDPS Act has not been complied with, which vitiate the conviction of the appellant and thus, the impugned judgment of conviction cannot be sustained in the eye of law for want of compliance of mandatory provision of NDPS Act. 6. On the other hand, Mr. S.S. Pradhan, learned AGA by taking this Court through the evidence of PWs.17 and 18 has strenuously argued that not only the compliance of Section 42 of NDPS Act has been duly made, but also the prosecution has established its case against the convict beyond all reasonable doubt CRLA No.488 of 2019 Page 6 of 22 and, therefore, the conviction as well as sentence of the appellant calls for no interference. 7. In order to address the rival submissions as to the compliance of mandatory provision of NDPS Act, this Court now proceed to re-examine/re-evaluate the evidence to find out compliance of mandatory provision of Section 42 of NDPS Act, since the allegation on record reveals about PW17 getting secret information and reducing it into writing by making a Station Diary Entry. A scrutiny of impugned judgment would go to reveal that the learned trial Court considers the inapplicability of Section 42 of NDPS Act in this case by relying upon the decision in State of Orissa Vrs. Rajendra Tripathy and others; 2004 SCC (Cri) 1586, but law on this point has been well settled in Karnail Singh Vrs. State of Haryana; (2009) 8 SCC 539, wherein a constitutional Bench of five Judges of Apex Court in paragraph-35(c) and (d), which are very much relevant for this case, has held as under:- CRLA No.488 of 2019 Page 7 of 22 “(c) In other words, the compliance with the requirements of Sections 41 (1) and in regard to writing down the 42(2) information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer. But in special circumstances emergent the situations, information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search, entry and seizure. The question is one of urgency and expediency. recording of involving the (d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, but delayed compliance with satisfactory explanation the delay will be acceptable about compliance with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails the information received, or fails to send a copy thereof, to the official superior, then suspicious be circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the in writing it will record to a CRLA No.488 of 2019 Page 8 of 22 information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of above position got the Act. The strengthened with amendment to section 42 by Act 9 of 2001.” the 8. It is, however, held by the Apex Court in Karnail Singh (supra) that non-compliance of the said provision may not vitiate the trial, if it does not cause any prejudice to the accused, but it is also quite relevant that more is the punishment, strict is the standard of proof. It is not the case of the prosecution that PW17 has not entered any Station Diary Entry on receipt of information due to certain exigency, rather the prosecution case demonstrates that on receipt of secret information, PW17 has made Station Diary Entry before proceeding to detect the case. On the other hand, a brief reference to Section 42 of NDPS Act makes it ample clear that the officer empowered to seize the Narcotic and Contraband substance, on receipt of any information in the nature referred to in Sub-Sec.(1) of Section 42 of NDPS Act shall have to CRLA No.488 of 2019 Page 9 of 22 record it in writing in the concerned register and forthwith send a copy thereof to his immediate official superior, before proceeding to take action in terms of clauses-(a) to (d) of Section 42(1) of the NDPS Act. Section 42(2) of the NDPS Act makes it mandatory that where an officer takes down any information in writing under Sub-Sec.(1) or records ground for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. 9. From a plain reading of the provisions of Section 42 of NDPS Act together with the law laid down by the Apex Court in Karnail Singh (supra), it is considered mandatory that if the empowered officer has reason to believe upon personal knowledge or information given by any person and taken down in writing with regard to commission of offence under NDPS Act, or any document or other article which furnishes evidence for commission of offence is kept concealed in any conveyance or enclosed place, such officer shall within 42 hours send a copy thereof to his CRLA No.488 of 2019 Page 10 of 22 immediate official superior. The present case demonstrates that the Contraband Ganja was carried on a Motor Cycle being kept concealed in a bag and Motor Cycle is definitely coming within the meaning of conveyance, but on perusal of evidence of concerned witnesses, neither PW17, who was the IIC at the relevant time, although stated to have received reliable information, but has failed to prove compliance of Section 42(2) of NDPS Act nor did any witness state/prove the compliance of Section 42(2) of NDPS Act by of way of any clear evidence. Further, the evidence of PW17 does not disclose about compliance of Section 42 of NDPS Act, rather PW18, who was the IO in this case has stated to have proved the Station Diary Entry vide Ext.17 with objection by the defence and such objection was rightly taken by the defence and cannot be overlooked, since the prosecution case is that PW17 received the information and entered such fact in Station Diary, but PW17 has not whispered a single word about making any entry in the Station CRLA No.488 of 2019 Page 11 of 22 Diary, rather his testimony is totally silent with regard to making entry of such information in the Station Diary. On a cumulative assessment of evidence of PWs.17 and 18, it goes without saying that the compliance as required under Section 42 of NDPS Act has not been done, but law is very clear on this point that compliance of Section 42 of NDPS Act is mandatory in nature as held by the Apex Court in Karnail Singh (supra) wherein it has been clearly held that if the police officer fails to record in writing the information received or fails to send a copy thereof to the officer superior, then it would be a suspicious circumstance being a clear violation of Section 42 of NDPS Act. Once there is clear violation of Section 42 of NDPS Act, the conviction would be vitiated. 10. On coming back to see the mandatory compliance of Section 52-A of NDPS Act, it appears that the representative sample(s) in question is/are required to be taken in the presence of Magistrate, but a brief reference to the evidence of PW17 makes it very clear CRLA No.488 of 2019 Page 12 of 22 that he drew 50 grams of sample “Ganja” after mixing the contents of Ganja homogeneously and separated 25 grams each and kept in separate poly packets duly sealed by him with his brass seal impression marked as ‘S1’ & ‘S2’ and kept two bulk Ganja bags marked as ‘A’ & ‘B’ and nine poly packets marked as ‘A1’ to ‘A6’ & ‘B1’ to ‘B3’ in a cotton bag arranged by him as well as duly packed and sealed the same with his brass seal impression at the spot. It is, therefore, clear violation of Section 52-A(2) of NDPS Act which provides that where any Narcotic Drugs and Psychotropic Substance has been seized, it is required to be forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 of NDPS Act and, thereafter, the officer referred to in Sub-Section(1) of Section 52-A of NDPS Act shall prepare an inventory of such Narcotic Drugs or Psychotropic Substance containing such details relating to their description, quality, quantity, mode of packing, marks, numbers and such other identifying particulars of the Narcotic CRLA No.488 of 2019 Page 13 of 22 Drugs or Psychotropic Substance or the packing in which they are packed, country of origin and other particulars as the officer referred to in Sub-Section(1) of Section 52-A of NDPS Act may consider relevant to identify the Narcotic Drugs or Psychotropic Substance in any proceeding under this Act and make an application, to any Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances or conveyances and certifying such photographs as true; or (c) allowing to draw representatives samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of sample so drawn. 11. In this case, there is absolutely no evidence to indicate that the inventory of the seized Contraband Ganja was duly certified by any Magistrate nor was the representative sample of seized Contraband Ganja being taken in presence of CRLA No.488 of 2019 Page 14 of 22 Magistrate nor the correctness of any list of samples was certified, which would have constituted such documents as a primary evidence for the purpose of trial in respect of offence under NDPS Act. The scheme of Section 52-A of NDPS Act makes it very clear that once Contraband Ganja is seized, the representative sample thereof is required to be drawn in presence of Magistrate, otherwise the seized Contraband Ganja and samples drawn thereof could not be a valid piece of primary evidence in the trial. Once the Court is deprived of getting primary evidence of a fact, the inevitable conclusion is that such fact is considered to be not proved or established beyond all reasonable doubt. In this aforesaid situation and admitted evidence on record, this Court does not find due compliance of Sec. 52-A(2) of the NDPS Act. 12. For non-compliance of Section 52-A(2) of NDPS Act, this Court gainfully refers to the decision in Simarnjit Singh Vrs. State of Punjab; (2023) SCC OnLine SC 906, wherein the Apex Court after CRLA No.488 of 2019 Page 15 of 22 extensively quoting paragraphs-15 to 17 of the decision in Union of India Vrs. Mohanlal and another; (2016) 3 SCC 379 has allowed the appeal by setting aside the conviction of the appellant therein for offence punishable under Section 15 of NDPS Act. For better appreciation, paragraphs-15 to 17 of the decision in Mohanlal and another (supra) are extracted below: is manifest "15. It from Section 52- A(2)include (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 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 to draw Magistrate as representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. true, and (c) forwarded 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband the officer-in- charge of the police station or the officer 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 to CRLA No.488 of 2019 Page 16 of 22 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. 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 the Magistrate in compliance with sub- sections (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." certified by 13. On coming back to re-appreciate the oral evidence of prosecution witnesses, it appears that in addition to the evidence of independent private witnesses PWs.2, 8 and 9 who have not supported the prosecution case, PW15 being the Assistant Collector is considered to be one of the important witnesses who remained present during search, seizure and collection of samples at the spot, but his testimony is quite CRLA No.488 of 2019 Page 17 of 22 interesting not only because he said that from the said bulk Ganja, we drew two samples of 25 grams each which were sealed and handed over to the IIC, Nuapada PS, but also he said that when he along with the police personnel reached at the spot (Sarabong), he saw two persons carrying two packets on a bicycle. The aforesaid evidence of PW15 makes his presence at the spot very doubtful, since it is the consistent case of the prosecution starting from the moment, PW17 received information that the accused persons were transporting Contraband Ganja on a Hero Honda CBZ Motor Cycle and the evidence of other witnesses also suggests that the accused-convict was detained with the Motor Cycle. Further, the prosecution has also tried to prove the forwarding of Contraband Ganja to SFSL, Bhubaneswar under Ext.14, which is the forwarding report of sending of sample to RFSL, Berhampur, Ganjam for chemical examination, but not only from this, but also through evidence of PW18, it is found that the samples of the seized Contraband Ganja were drawn on 22.08.2016 CRLA No.488 of 2019 Page 18 of 22 and the chemical examination report under Ext.19 discloses that the samples were received in the chemical laboratory on 25.08.2016 through constable C/326 PW-10-Radheshyam Majhi, but the evidence on record never discloses as to under whose custody, the samples were kept from the time it was handed over to the IO on 22.08.2016 till it was produced before the chemical examiner on 25.08.2016 by PW10, who has not at all whispered a single word about him depositing the samples at RFSL, Berhampur, Ganjam. The aforesaid inconsistency in the prosecution evidence clearly contributes to the suspicion already entertained for non-compliance of Section 42 & 52-A(2) of the NDPS Act. In a case like this, not only the seizure of Contraband Ganja has to be proved with clear & cogent evidence, but also the journey of sample from the Court to chemical examiner with clear and cogent evidence to rule out any tampering in the sample and it must be proved that the samples were under safe custody during the transit, but in this case, the samples were CRLA No.488 of 2019 Page 19 of 22 kept under whose custody from 22.08.2016 to 25.08.2016 has not been revealed in the evidence which only speaks about the inability of the prosecution to prove its case against the convict beyond all reasonable doubt. 14. On a careful conspectus of evidence on record together with discussion made hereinabove, this Court has not only found non-compliance of Section 42 and 52-A of NDPS Act, which are mandatory in nature as held by the Apex Court in the decisions referred to above, but also the oral evidence is full of inconsistencies and well short of the standard of proof required to convict a person for commission of offence under NDPS Act, and when the mandatory provisions have not been complied with, the necessary inevitable consequence is that the conviction of the appellant would be considered unsustainable. Once it is found that the drawing and sending of samples has not been established and proved inconformity with the mandatory provision of Section 52-A of NDPS Act, the CRLA No.488 of 2019 Page 20 of 22 only inference would vindicate the acquittal of the convict-accused. 15. In the aforesaid facts and circumstance together with the discussion of evidence and the prosecution having not been able to establish the compliance of mandatory provision of NDPS Act and the oral evidence of material witnesses being suspicious and not inspiring confidence of the Court, it can be well said that the prosecution has failed to establish the guilt of the convict-accused beyond all reasonable doubt. This Court is, accordingly, constrained to hold that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. 16.
Decision
In the result, the appeal stands allowed on contest, but in the circumstance there is no order as to costs. Consequently, the impugned judgment of conviction and the order of sentence passed by the learned Sessions Judge-cum-Special Judge, Nuapada in Special Act No.70 of 2016 are hereby set-aside. Accordingly, the appellant/convict is acquitted of the CRLA No.488 of 2019 Page 21 of 22 charge and he be set at liberty forthwith, if his detention is otherwise not required in any other case. Since the appellant is in jail, warrant of release on appeal in Form No.(M)77 of GR & CO, (Criminal) Volume-II be immediately sent to the Officer-in-charge of the concerned jail through e-mail or any other faster mode of communication in view of the Rule 154 of the GR & CO (Criminal) Volume-I. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 21st day of August, 2024/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2024 19:19:38 CRLA No.488 of 2019 Page 22 of 22