The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.954 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 7th December, 2019 passed by the learned Additional Sessions Judge-Cum-Special Judge under NDPS Act, Chatrapur (Ganjam) in 2(a) C.C. No.04 of 2017 (N). Raghunath Pradhan …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Soumya Mishra, M. Mohanty, G.N. Parida, B. Jena, A. Agarwal & N. Sharma (Advocates)
Legal Reasoning
For Respondent - Mr.P.K. Mohanty Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 23.04.2024 : Date of Judgment : 01.05.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 7th December, 2019 passed by the learned Additional Sessions Judge- Cum-Special Judge under NDPS Act, Chatrapur (Ganjam) in 2(a) CRLA No.954 of 2019 Page 1 of 8 C.C. No.04 of 2017 (N) arising out of P.R. No.43/2017-18 dated 29.09.2017 of Sub-Inspector of Excise, Striking Force, Chatrapur, Ganajm. By the impugned the judgment of conviction and order of sentence, the Appellant (accused) has been convicted for commission of the offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for ten (10) years and pay fine of Rs.2,00,000/- (Rupees Two Lakh) for commission of the said offence. 2. The prosecution case, in short, is that on 29.09.2017 around 7.00 a.m, the Sub-Inspector (S.I.) of Excise Striking Force, Chatrapur, Ganjam (P.W.6) along with other Excise Officials were on patrolling duty and then they got some reliable information from RPR, Crime Branch, Khurda, East Coast Railway. So, they proceeded to the Platform No.2 of Chatrapur Railway Station and saw the accused carrying one red colour trolley bag and a blalck colour air bag. The S.I. of Excise (P.W.6) then giving his identity, searched those bags and asked the accused about the contents. It is stated that the accused told him that ganja had been kept in the bags. The S.I. of Excise (P.W.6) then searched the trolley bag and air bag held by the accused. He first of all mixing the contents of CRLA No.954 of 2019 Page 2 of 8 the two bags, brought one piece from each bag and by rubbing it on his palm and then pouring the same could get the smell. From that smell, colour, texture of the said contents of the trolley bag, P.W.6 asserted that those were nothing but ganja. He weighed the contents of the red colour trolley bag, which came to 15 kgs and that of black colour air bag, coming to 10 kgs of ganja. Thus, in total, he (P.W.6) found 25 kg of ganja from both the bags. He then drew two samples of 100 grams each from the contents of each the bags and kept the rest ganja inside the bags. The bags were then sealed by paper slip and all those were seized under seizure list. The case, being registered against the accused, the accused was forwarded in custody to the Court. The S.I. of Excise (P.W.6) then made the prayer for collection of samples and sending the same for chemical examination. The prayer, being allowed, the Court below directed him to do the needful. Ultimately, on receipt of the chemical examination report (Ext.11), the Final Prosecution Report (P.R.) was submitted and that is how the accused faced the Trial. 3. The Trial Court, after examination of the evidence both oral and documentary let in by the prosecution, has come to a conclusion that the prosecution has proved the charge against the accused that he, on that particular date, time and place, was in possession of 25 kgs of ganja beyond reasonable doubt and as CRLA No.954 of 2019 Page 3 of 8 such is liable to be punished under section 20(b)(ii)(C) of the N.D.P.S. Act. Accordingly, the accused has been convicted and sentenced as afore-stated. 4. Heard Mr.G.N. Parida, learned counsel for the Appellant and Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State. I have perused the impugned judgment of conviction passed by the Trial and Court and have also extensively travelled through the evidence of all the prosecution witness (P.Ws.1 to 8), more particularly the evidence of S.I. of Excise (P.W.6.) 5. Admittedly, P.W.6 drew two samples of 100 grams each from each bag from out of the contents and kept four numbers of samples in four envelopes. His further evidence is that rest ganja were put in respective bags by putting identification mark as A & B and also identification marks on sample packets as A/a1, A/a2, B/b1 & B/b2, which were seized under the seizure list. His evidence is on that on his prayer, learned S.D.J.M., Chatrapur, having drawn the samples from the Ganja, which were produced before him those samples had been sent for chemical examination. This P.W.6 does not state as to where he then carried those sample packets, which he had prepared at the spot at the time of seizure. He (P.W.6) is also not stating that those CRLA No.954 of 2019 Page 4 of 8 samples packets, which he had collected at the spot from each of the packets, were produced before the Court and where the accused was produced. When he says that the learned S.D.J.M. drew the sample from ganja and those were sent for Chemical Examination; the Report of the S.D.J.M forwarding the samples (Ext.8), however, reveals that two paper envelopes containing 100 grams of ganja marked as A/a1 and B/b1 were sent for said examination. But then it is not stated that these two envelopes A/a1 and B/b1 are not out of those which P.W.6 had collected at the spot after the detection, which he too had marked A/a1, A/a2, B/b1 and B/b2. The submission of the learned counsel for the Appellant (accused) was that grave suspicion is created about the prosecution’s case as the action of P.W.6 was contrary to what have been laid down in section 52-A of the N.D.P.S. Act. 6. In the case of Union of India -V- Mohanlal & Another; (2016) 3 SCC 379, the Hon’ble Apex Court has held thus:- “15. It is manifest from Section 52-A (2) (supra) that upon seizure of the contraband, the same has to be forwarded either to the Officer-In-Charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated 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 CRLA No.954 of 2019 Page 5 of 8 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. including grant of permission 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.” (Emphasis added). CRLA No.954 of 2019 Page 6 of 8 7. In case of Bhotilal -V- Intelligence Officer, Narcotics Control Bureau; 2023 SCC Online SC 498, keeping the above in view in that given case, having found that the act of the seizing officer (P.W.2) as to drawal of samples from all the packets at the time of seizure to be not in conformity with what has been held in case of Mohanlal (supra) has said that the same creates doubt about the prosecution case that the substance recovered was contraband. Finally, the prosecution case was held to be not free from suspicion. 8. In view of the evidence of P.W.6 as discussed as to his role of drawal of samples from the bags at the time of seizure and then also not clarifying as to whether envelopes marked A/a1 and B/b1 sent for chemical examination were not those which he had marked in similar fashion at the spot; in my considered view creates doubt about the prosecution case that the substance recovered was contraband. Therefore, in my view, the case of the prosecution is not free from suspicion and the prosecution is found to have not proved beyond reasonable doubt that the appellant was in possession of contraband ganja when he was there at Platform No.2 of Chatrapur Railway Station. 9. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 7th December, 2019 passed CRLA No.954 of 2019 Page 7 of 8 by the learned Additional Sessions Judge-Cum-Special Judge under NDPS Act, Chatrapur (Ganjam) in 2(a) C.C. No.04 of 2017 (N) are hereby set aside. Since the Appellant, namely, Raghunath Pradhan, is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 02-May-2024 15:28:29 CRLA No.954 of 2019 Page 8 of 8