The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.605 of 2019 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 3rd July, 2019 & 9th July, 2019 respectively passed by the learned 1st Additional Sessions Judge- Cum-Special Judge, Puri in T.R. Case No.03/43 of 2014 (T.R. Case No.04/34(A) of 2015/2014). Ramesh Kumar Mohanty @ Kuna Mohanty ---- …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Manas Chand, R.R. Mishra & K. Mansingh (Advocates) For Respondent - Mr.Gyanaloka Mohanty Counsel for NCB CORAM MR. JUSTICE D.DASH Date of Hearing : 29.04.2024 : Date of Judgment : 20.05.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 3rd July, 2019 & 9th July, 2019 respectively passed by the learned 1st Additional Sessions Judge-Cum-Special Judge, Puri in T.R. Case CRLA No.605 of 2019 Page 1 of 19 No.03/43 of 2014 (T.R. Case No.04/34(A) of 2015/2014) arising out of G.R. Case No.23 of 2014 corresponding to NCB Crime P.R. No.02/NCB/BBSR/2014. The Appellant (accused) thereunder has been convicted for commission of the offence under sections 20(b)(ii)(C) and 18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for ten (10) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) in default to undergo rigorous imprisonment for one (1) year for commission of the of the offence under section 20(b)(ii)(C) of the N.D.P.S. Act; and rigorous imprisonment for ten (10) years and fine of Rs.1,00,000/- (Rupees One Lakh) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 18(b) of the N.D.P.S. Act; with the stipulation that the substantive sentences would run concurrently. 2. PROSECUTION CASE:- On 01.06.2014, the Intelligence Officer of Narcotics Control Bureau (NCB), Bhubaneswar Sub-Zone, namely, Barunjyoti Choudhury (P.W.2) received an information as regards the illegal possession of contraband articles by this accused in his house situated at Village-Mukteswar Bazar, Batamangala, Gopinathpur, under Puri Sadar Police Station in the District of Puri. CRLA No.605 of 2019 Page 2 of 19 He (P.W.2), therefore, having immediately reduced the same into writing, intimated the fact to his Superior Authority. After obtaining necessary permission, a team consisting of the officials attached to NCB, which included himself (P.W.2), being led by the Superintendent of NCB, Bhubaneswar Sub-Zone, who has been examined as P.W.3, left Bhubaneswar around 1.00 p.m. They arrived in the Office of Superintendent of Police, Puri around 2.30 p.m. and made requisition for local police assistance. That, being favoured, the members of the team with others proceeded to Krupasagar Patna and met their informer there at 5.00 p.m. who then identified the house of the accused where the search was to be conducted. Some local persons were then, being contacted, the identity of the house, as stated by the informer,
Legal Reasoning
was confirmed and the members of the team, having disclosed their identity before them and the purpose of their visit, requested them to accompany to be the witnesses in the search to be conducted in the house. The members of the team then reached near the house of the accused. The door of the house being knocked, the accused opened the door. He also disclosed his identity. The Officers of the team then disclosed their identity to the accused and expressed their intention to search the residential premises in view of the prior information regarding keeping of Ganja and Opium therein. CRLA No.605 of 2019 Page 3 of 19 The Officers then offered themselves to be personally searched by the accused and the independent witnesses. It was stated that the accused was apprised if his available right under section 50 of the N.D.P.S. Act and was asked to exercise the option of getting the house searched in presence of the Magistrate and gazetted Officer. He too was intimated that a gazetted officer was very much present in the team. It is stated that the accused declined to be searched in presence of the Magistrate and the Gazetted Officer and rather opted in writing to be searched by the members of the team. The search accordingly started at 5.30 p.m. in presence of the witnesses. First room of the house of the accused, being searched, one yellow plastic bag was found, which being opened, some transparent plastic packets contain black colour substance was found. On opening of the transparent plastic packets, some brown/black coloured resinous substance was found. A small quantity therefrom, being taken, when was tested with the help of Drug Detection Kit, the substance was detected to be Opium. Thereafter, the members of the team came down and saw two godowns to have been under lock and key. First godown, being opened, large number of plastic bags were found to be containing female flowering top of Cannabis (Ganja) as confirmed by taking small quantity and testing it with the help of Durg Detection Kit. CRLA No.605 of 2019 Page 4 of 19 The other godown when was opened, large number of bags were found to have been kept therein. All those bags, being opened and small quantity being taken therefrom, on test the contents were found to be the female flowering tops of Cannabis (Ganja). It is next stated that thereafter as per the information received, another team being led by the Superintendent (P.W.3) went to the other residence of the accused and there of course, despite search, no such contraband was recovered and in stead one Country made Pistol containing ten rounds of live ammunitions was recovered and seized. The members of the team then returned to the first residence and there all the plastic bags said to be containing female flowering tops of Cannabis (Ganja) were taken out of the godown and contents of all the packets were weighed. The weight of the contents with the bag came to 2506.250 kgs and those packets were then divided into five lots of different numbers of packets; containing almost the same weight under one lot. Two samples from each lot, i.e,. Lot No.1 to Lot No.5 (2 X 5 =10) each weighing 25 grams were taken and kept in transparent plastic packets, which were then sealed and placed in yellow envelope, which were again sealed with Departmental Brass Seal. Thereafter, all the packets of the five lots were stitched and wrapped with cloth and again sealed with the Departmental Brass Seal. Similarly, all the packets said to be CRLA No.605 of 2019 Page 5 of 19 Opium, being distributed in three lots of different weights, were dealt with and one sample in duplicate of 5 grams each (5X2=10) were taken from the three lots, which was then kept in transparent plastic packets being sealed. All the six plastic packets were then kept in yellow envelope, which were sealed with by using the Departmental Brass Seal. Some other articles, which P.W.2 believed to be incriminating, were also seized. The seizure list in support of all such seizure were prepared. The accused with all those seized articles were then brought to the NCB Sub-Zonal Office, Bhubaneswar where his statement under section 67 of the N.D.P.S. Act was recorded and so also of others and it is said that he (accused) admitted his guilt during then. The accused thereafter was arrested. The samples of the seized contraband articles were produced in the Court of the learned Special Judge, Puri and the I.O. (P.W.2) prayed before the said Court that those samples be sent to State Forensic Science Laboratory (S.F.S.L.), Rasulgarh, Bhubaneswar for Chemical Analysis. The accused, being produced before the Court, was remanded to the judicial custody and rest seized contraband articles were kept in Court Malkhana. The Court was moved for collection and dispatch of the samples for Chemical Examination. Accordingly, that was done by the learned S.D.J.M., Puri directed by learned Special Judge, Puri. The report came to be received CRLA No.605 of 2019 Page 6 of 19 that the samples taken from Lot Nos.1 to 5 were Ganja whereas Lot Nos.6 to 8 were ‘Opium’. Final Prosecution Report (P.R.) then was placed and this accused with another faced the Trial, being charged for commission of the offence under section 20(b)(ii)(C) and 18(b) of the N.D.P.S. Act. 3. During trial, the prosecution, in total examined as seven witness and the defence has examined two witnesses in support of their defence of denial of false implication. Several documents, being proved from the side of the prosecution, those were admitted in evidence and marked Exts.1 to 47. From the side of the defence, the certified copy of the judgment in G.R. Case No.1338 of 2014, which had been initiated against the accused for seizure of the Country made Pistol has been filed and marked Ext.A; so also other documents as Exts.B to G. The packets containing contraband Ganja and Opium as also the sample packets were produced in Court during trial and marked Material Objects (M.O.I to M.O.XLIII). 4. The Trial Court, on going through the evidence of all the witnesses examined from the side of the prosecution (P.Ws.1 to 7) and defence (D.Ws.1 & 2) and upon undertaking the scrutiny of the same, has held the prosecution to have established the factum of seizure of the contraband Ganja And Opium from the CRLA No.605 of 2019 Page 7 of 19 conscious possession of this accused and another person, namely, Prasanna Kumar Sahoo, who too had faced the trial with this accused. As such, this accused has been convicted for commission of the offence under section 20(b)(ii)(C)/18(b) of the N.D.P.S. Act and sentenced as afore-stated and the other one (not an Appellant in this accused) has also been convicted for commission of the offence under section 20(b)(ii)(C)/29 of the N.D.P.S. Act.
Legal Reasoning
5. Mr.M.Chand, learned Counsel for the Appellant (accused) submitted that the investigation, in the present case, having been done by the Officer (P.W.2), who had arrested this accused, the prosecution is bound to suffer for the same as the accused has been seriously prejudiced thereof and, therefore, the entire trial based upon said investigation stands vitiated. He further submitted that there are serious discrepancies in the evidence of the witnesses examined from the side of the prosecution as to the seizure of contraband from the conscious possession of the accused. He submitted that the search and seizure have been carried out in violation of the provision of section 41(1) and 41(2) of the N.D.P.S. Act, the conviction cannot be sustained. It was next contended that the prosecution is bound to fail for total non-compliance of the mandatory provision contained in Section 52-A of the N.D.P.S. Act. He submitted that the so-called confessional statement of the accused recorded CRLA No.605 of 2019 Page 8 of 19 under section 67 of the N.D.P.S. Act before the Officers of the N.C.B., who are invested with the powers under section 53 of the N.D.P.S. Act being the Police Officers, the bar under section 25 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’) is attracted. He, therefore, urged for acquittal of this accused by setting aside the judgment of conviction and order of sentence. 6. Mr.G.Mohanty, learned Counsel for the NCB, while submitting all in favour of the finding returned by the Trial Court, contended that the Trial Court, upon detail discussion of the evidence on record and their scrutiny at every step; viewing the same from every possible angle, has rightly found the compliance of all the mandatory provision of law during the present search and seizure. He submitted that even if the confessional statement is kept beyond the arena of consideration; on the basis of the evidence available on record, the conviction has to be held to be well founded. He, therefore, urged that no interference is called for with the findings of the Trial Court, which are based on just and proper appreciation of evidence. 7. Keeping in view the rival submission, I have perused the impugned judgment of conviction passed by the Trial and Court and have also extensively travelled through the evidence of all CRLA No.605 of 2019 Page 9 of 19 the witnesses, i.e., P.Ws.1 to 7 and D.Ws.1 & 2 as well as the documents admitted in evidence and marked Exts.1 to 47. 8. In order to judge the sustainability of the finding holding this accused, Ramesh by addressing the rival submission, it is felt appropriate to being with the last limb of the submission of the learned Counsel for the Appellant (accused) as regards the non- compliance of the mandatory provision of section 52A(2) of the N.D.P.S. Act since that goes to the root of the matter as in the event of non-compliance, the entire prosecution case has to be viewed with suspicion leading to the inevitable conclusion that the prosecution has failed to prove beyond reasonable doubt that the accused was in possession of the contraband as the samples taken from said seized substances being tested, has been so certified. 9. Before going to other evidence, let me have a glance at the evidence of P.W.2, who is the most important and thus the star witness for the prosecution. He has stated that at 21.40 hours on 01.06.2014, all the plastic packets containing female flowering tops of Cannabis (Ganja) as ascertained by him were taken out from the godown and weighment was made there at the spot of seizure. The total numbers of bags were One Hundred Twenty- Eight (128). Those were then distributed into five Lots; each CRLA No.605 of 2019 Page 10 of 19 comprising of the bags as shown below; (a) Lot No.I containing 37 bags, each weighing approximately 10 kg marked as serial Nos.1 to 37; (b) Lot No.II containing 40 plastic bags each weighing approximately 20 kgs marked as serial Nos.1 to 40; (c) Lot No.III containing 6 plastic bags each weighing 21 kgs marked serial Nos.1 to 6; (d) Lot No.IV containing 28 plastic bags each weighing approximately 25 kgs marked serial Nos.1 to 28; (e) and Lot No.V containing 17 plastic bags each weighing approximately 30 kgs marked serial Nos.1 to 17. This P.W.2 next states that one sample in duplicate from each lot, i.e., from Lot No.I to Lot No.(V) weighing 25 grams each, (5X2) i.e., 10 packets were taken and kept in transparent plastic packets, sealed and those were marked as L.G.1 (original) and L.G.2 (duplicate) from Lot No.1; L.G.3 (original) and L.G.4 (duplicate); from Lot No.II, L.G.5 (original) and L.G.6 (duplicate); from Lot No.III, L.G.7 (original) and L.G.8 (duplicate) from Lot No.V. The plastic bags containing the residue were then stitched, wrapped and sealed. His (P.W.2) further evidence is that thereafter all the plastic packets containing Opium as ascertained by him were weighed and those were twenty-four (24) in numbers. Those 24 plastic packets were distributed in three lots, i.e., Lot Nos.6, 7 & 8. As per the evidence of P.W.2, Lot No.6 contained five packets, each approximately weighing 2.5 kg; Lot No.7 contained ten packets, CRLA No.605 of 2019 Page 11 of 19 each approximately weighing one kg; and Lot No.8 contained nine packets each approximately weighing one kg. As stated, all those were marked as Exts.1 to 8. He has also stated that one sample of five gram in duplicate (5 X 2) were taken from Lot No.6, Lot No.7 and Lot No.8 and being kept in plastic packets were sealed. The evidence of P.W.2 further reveals that on 03.06.2014 at 15.15 hours, the accused was produced before the Court with the contraband articles. He again says that he had collected five packets of samples of seized Ganja each containing 25 grams and sealed those with departmental brass seal (Para-18) of the deposition. He then at Para-19 of the deposition says to have also collected samples of 25 grams of Ganja each in five packets as duplicate. He also at Para-20 of the deposition says about collection of samples of Opium in three packets and sealed, the same as also three packets in duplicate. It is his evidence that learned S.D.J.M. did not accept the sample packets of Ganja (Para-18) but he does not state as to if the sample packets of Opium whether were not accepted. It was submitted by the learned Counsel for the Appellant that as the action by the P.W.2 was contrary to section52-A of the N.D.P.S. Act, grave suspicion is created about the prosecution’s case. CRLA No.605 of 2019 Page 12 of 19 10. In order to appreciate the above submission, it would be relevant to go through the following paras (15 to 17) of the case of Union of India -V- Mohanlal and Another; (2016) 3 SCC 379. “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 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 the presence of 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- In-Charge of the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above to draw 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; and 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 CRLA No.605 of 2019 Page 13 of 19 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.” 11. Now, again turning the attention to the production of the said seized contraband before the Court on the date when the accused was produced, it be stated first that the search and seizure operation, having started on 01.06.2014, the production before the Court has been made on 06.04.2014 and it is said in the Complaint that the search and seizure procedures were completed around 4.40 hours on 02.06.2014. The Complaint, however, does not find mention as to where those seized articles were kept during the period till production before the Court. P.W.2, in his evidence, has also not breathed a word about it when he said that the accused, after search, was given a notice under section 67 of the N.D.P.S. Act and on 02.06.2014 and his interrogation continued, then another notice, being issued to the accused, he appeared at the N.C.B. Office at 03.06.2014 where he gave his statement in writing. When he has stated that he had collected five samples of seized Ganja each containing 25 grams and those samples were not CRLA No.605 of 2019 Page 14 of 19 accepted by the learned S.D.J.M., he submitted those samples in Court Malkhana; he in the same line states to have collected three packets of samples of Opium each containing 5 grams. But, then it is not stated whether those were accepted by the learned S.D.J.M. or not. At this stage, turning the attention to the order-sheet of the learned S.D.J.M., it is found that on that day, i.e, 04.06.2014, the I.O. produced seized contraband articles as per the forwarding letter, seizure list and inventory report. When it is stated that those were verified, the most important aspect is not mentioned that in all those packets containing seized contrabands, the seals were intact and there was no tampering with the same and that sign of tampering was noticed and further that the seal used had been placed for comparison with the impression of the said seal which were very much there on those seals put on the seized contraband packets. The learned Magistrate does not state here anything about the production of those sample packets, which were drawn at the spot by P.W.2, which P.W.2 states to have been produced and rejected by the learned S.D.J.M in so far as the samples of Ganja are concerned. It is simply noted in the order-sheet that after collection of ten packets of samples of Ganja, six sample packets of Opium; five sample packets of Ganja and three sample packets of Opium were sent for chemical examination and rest of the sample packets, i.e, five sample packets of Ganja and three sample packets CRLA No.605 of 2019 Page 15 of 19 of Opium were kept in the Court Malkhana. The samples from the Court were taken by none other than that very P.W.2, who is the I.O. to the State Forensic Science Laboratory and the order-sheet does not reveal as to if the samples collected by P.W.2 at the spot whether remained with P.W.2 or deposited in the Court Malkhana, which gives rise to grave doubt in mind that the samples collected by P.W.2 were still with him being not deposited in the Court Malkhana. The learned S.D.J.M neither has indicated in the order- sheet that any such sample packets were produced before him much less to say that those were kept in the Court Malkhana. No such evidence is also tendered with regard to safe keeping of the contraband from the time of seizure till their production before the Court. P.W.3, the Superintendent of N.C.B., who claims to have gone with P.W.2 to the spot, is also silent on that score. P.Ws.5 & 6 do not state anything on that aspect. 12. Furthermore, when P.W.2 states that the accused, pursuant to the notice under section 67 of the N.D.P.S. Act, having appeared in the Office on 02.06.2014 and 03.06.2017, it would be interesting to take note of the following statement made:- “in response to the notice, Ramesh Chand Nayak (accused) was appeared before the NCB Officers and his statement was recorded by his own hand writing. He admitted his involvement in dealing with Ganja and CRLA No.605 of 2019 Page 16 of 19 Opium in reasonably plea that an offence has been committed in response of the above-noted contraband in violation under section 8 of the N.D.P.S. Act liable for punishment under section 20(b)(ii)(C) and 18(b) of the N.D.P.S. Act” The above statement (Ext.13) is stated to be voluntary statement of the accused, which from the deposition, as quoted above, per se is not acceptable. Moreover, P.W.2 stating that he is the authorized officer to conduct the search and seizure of the Narcotic Drugs and Psychotropic Substances in the State of Odisha. He also expresses his inability to state as to if on the day, i.e., 04.06.2014, when he forwarded the accused in custody to Court, whether he had sent that statement (Ext.13) to the Court or not. This P.W.2 was the I.O. during that time and he only handed over the investigation to P.W.4 on 20.11.2014. Ext.12 is the notice issued to the accused to appear on 03.06.2014 at 12 hours in the Office of NCB at Bhubaneswar and Ext.13, is the so-called statement of the accused. These two documents do not contain the initials of the Presiding Officer of the Court before whom the accused was produced. The statement (Ext.13), in total, runs to 18 pages. Even with all the deficiencies and suspicious features surrounding the documents, the same is taken as it is, the so-called statement, being made by the accused to an officer empowered under section 53 of the N.D.P.S. Act, in view of the bar under section 25 of the Evidence Act, the confessional statement will CRLA No.605 of 2019 Page 17 of 19 have to be kept out of consideration following the majority view in case of Tofan Singh V State of Tamil Nadu (2021) 4 SCC 1 wherein the reference has been answered as under:- “158. We answer the reference by stating: 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.” 13. Thus, in view of the discussion in the foregoing paragraph, the act of P.W.2 of drawing samples of all packets at the time of seizure is not in conformity with what is held by the Hon’ble Apex Court in the case of Mohanlal (Supra), which has been reiterated in a very recent case Bothilal -V- Intelligence Officer, Narcotics Control Bureau; 2023 SCC Online SC 498 and for that reason, serious doubt is created about the prosecution’s case that the substances recovered was contraband. 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 accused was in possession of the contrabands. CRLA No.605 of 2019 Page 18 of 19 In the circumstances, the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained and are liable to be set aside. 14. Accordingly, the judgment of conviction and order of sentence dated 3rd July, 2019 & 9th July, 2019 respectively passed by the learned 1st Additional Sessions Judge-Cum-Special Judge, Puri in T.R. Case No.03/43 of 2014 (T.R. Case No.04/34(A) of 2015/2014), 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: 21-May-2024 19:05:32 CRLA No.605 of 2019 Page 19 of 19