The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.1214 of 2023 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 29th September, 2023 passed by the learned 3rd Additional Sessions Judge, Berhampur in Case No.2(a)C.C.19/2022(N). Judge-cum-Special Prasad Jani …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- M/s.Dillip Kumar Mohanty(Advocate) For Respondent - Mr.P.K. Mohanty Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 03.05.2024 : Date of Judgment : 20.05.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 29th September, 2023, passed by the learned 3rd Additional Sessions Judge-cum-Special Judge, Berhampur in Case CRLA No.1214 of 2023 Page 1 of 11 No.2(a)C.C.19/2022(N), arising out of P.R No.30/2022-23 dated 09.04.2022 of Inspector of Excise, E.I & E. B. Unit-II (S.D.), Berhampur. The Appellant (accused) thereunder 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 a period of ten (10) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) in default to undergo rigorous imprisonment for one year. 2. The prosecution case, in short, is that on 09.04.2022 around 5 p.m., the Inspector of Excise attached to E.I. & E.B., Unit-2, S.D, Berhampur (P.W.4) received an information from reliable source regarding illegal transportation of Ganja at Pakudibandha Junction. He (P.W.4), having recorded the information, intimated the same to his superior authority i.e. Deputy Superintendent of Excise. On being directed, he (P.W.4) with his other staff proceed to the spot. It was around 6 p.m., they all reached at the spot and saw the accused carrying one Jari basta on his head was standing on the road side. P.W.4 then having detained the accused, gave his identity and ascertained the identity of the accused too. Since P.W.4 got the smell of Ganja, coming from that jari basta, he CRLA No.1214 of 2023 Page 2 of 11 expressed his intention for carrying out the search. It is stated that the accused was told as to if he would be desiring to be searched in presence of a Gazette Officer. The accused while denying for the search in presence of the Gazetted Officer, gave his consent of being searched by P.W.4. So, the persons of the nearby place were called. After observing all the formalities, the jari basta being recovered from the possession of the accused, small amount of the contents of the same were taken. With the departmental experience and training, P.W.4 by observing the colour, complexion, texture and smell and by rubbing and burning, ascertained those contents inside the jari basta to be flowering and fruiting tops of cannabis (Ganja). Thereafter, the contents of the bag were weighed. The net weight came to be 22 kg excluding the jari basta. The jari basta was seized under seizure list and it was sealed by using personal brass seal of P.W.4 and was also sealed by papers under the signature of P.W.4. The brass seal was given in zima of ASI of Excise (P.W.2), who was a member of the raiding party. The copy of the seizure list was given to the accused and he thereafter was arrested and produced before the Special Judge, Berhampur along with the seized contraband kept inside the jari basta. On the prayer of P.W.4, the two parts samples each weighing 50 grams from the jari basta were drawn and marked CRLA No.1214 of 2023 Page 3 of 11 Ext.A1 and Ext.A2. One of those i.e. ‘A1’ was sent to Assistant Chemical Examiner (DECTL), Berhampur for chemical examination and the other part of the sample ‘A2’ with the jari basta containing the residue were kept in Court Malkhana as per the order of the Court. The factum of search, seizure and recovery as above were reported by P.W.4 to his superior authority. The chemical examination report being received, on completion of all such legal procedures, final prosecution report was submitted placing the accused to face the trial for commission of offence under section 20(b)(ii)(C) of the NDPS Act being in chemical possession of transportation of Ganja. 3. In the trial, prosecution in total examined four witnesses including P.W.4, the head of the reading party who had recovered that jari basta from the possession of the accused after search and had seized contraband with the jari basta. Prosecution has also proved several documents which have been admitted in evidence and marked Ext.P-1 to Ext.P-24. The brass seal, sample ganja packet and the broken seal were produced during trial and marked as material objects, M.O-I to M.O-III. 4. The case of the defence is that of complete denial and false implication. CRLA No.1214 of 2023 Page 4 of 11 5. The Trial Court upon examination of the evidence on record, both oral and documentary and their scrutiny has held the prosecution to have proved beyond reasonable doubt that the accused was in possession of 22 Kgs. of contraband ganja when had been carried out by P.W.4 search after being detained on 09.04.2022 evening at Pakudibandha Junction. Accordingly, the
Legal Reasoning
Trial Court has sentenced the accused as aforestated.
Legal Reasoning
6. Learned counsel for the Appellant (accused) submitted that the evidence on record is highly doubtful to establish the nexus between the contents of the jari basta said to have been seized from the possession of the accused with those produced before the learned Magistrate and that the sample being taken from the said contents of the jari basta taken from the accused was sent for chemical examination and that the contents of jari basta found from the possession of the accused was nothing but contraband Ganja. He submitted that when P.W.4 has stated that after the recovery of the jari basta having the contents from the possession of the accused, he brought the accused and seized ganja to his office and kept the seized ganja in the office Malkhana vide Malkhana Register No.30/2022 dated 09.04.2022, that Malkhana Register has not been proved to show as to whether actually that jari basta having the contents were at all kept in the Malkhana in the night till it was taken on the next day for its production before CRLA No.1214 of 2023 Page 5 of 11 the Court. He further submitted that P.W.4 in order to ensure the safe custody of the same ought not to have further remained in charge of that Malkhana and for the period, he ought to have given the charge to someone else by handing over the key of that Malkhana and that having not been done in the case which rather shows that P.W.4 had all the control during the period and scope to meddle with the contents of the said jari basta and tamper the same. He next contended that the brass seal used for sealing the said jari basta instead of being given to an independent person when has been given in zima of another member of the raiding party that is one ASI (P.W.2) attached to the office of P.W.4 serious doubt arises about the contents of that jari basta to have remained intact from the time of seizure till collection of the samples therefrom by the learned Magistrate. He, therefore, urged that for non-compliance of the provision of section 55 of the NDPS Act, the prosecution is bound to fail. 7. Mr. P.K. Mohanty, learned Additional Sanding Counsel for the Respondent-State refuted the submission. Inviting the attention of the Court to the deposition of P.W.4, he submitted that when the jaribasta carrying the contents was having the seal intact when was produced before the learned Magistrate which he has noted, merely because P.W.4 had not given the charge of Malkhana to someone else during the period after the jari basta CRLA No.1214 of 2023 Page 6 of 11 was kept in office Malkhana, it cannot be said that there has been non-compliance of the provision of section 55 of the NDPS Act so as to vitiate the trial. According to him, the sample drawn by the learned Magistrate after opening the seal of that jari basta had been examined and found to be nothing but Ganja and therefore, the instant prosecution cannot for that reason suffer. 8. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction and order of sentence which have been impugned in this Appeal. I have also gone through the depositions of P.W.1 to P.W.4 as also the documents which has been admitted in evidence and marked Ext.P-1 to Ext.P-24. 9. Addressing the above submission, adverting to the case at hand, it is seen that the seizure of jari basta being made on 09.04.2022, the same was produced before the Court of Sessions Judge-cum-Special Judge on 10.04.2022 and as per his direction, the learned SDJM has drawn the samples on that day. It is the evidence of P.W.4 that the search and seizure operation at the spot being over, he (P.W.4) brought the accused and seized ganja to their office and kept the seized ganja in office Malkhana vide entry in the Malkhana Register. It is also his evidence that the brass seal which he used to seal the jari basta CRLA No.1214 of 2023 Page 7 of 11 containing the ganjas had been given in zima of the departmental witness (P.W.2) at the spot. P.W.2 has stated to have received the said brass seal in zima at the spot and that he produced before the trial Court on the day he deposed. But he has not stated that on 10.04.2022, when the accused with the seized articles were produced before the Court, he too had produced the brass seal which he has taken on zima before the learned Court and that the learned Magistrate before drawal of the sample had undertaken the exercise as to comparison with the said seal with the seal put while sealing the jari basta. The order sheet of the learned Magistrate dated 10.04.2022 also does not reflect that position that he had compared the seal by taking it from the custody of P.W.2 or on his production so as to note that the same had been used for sealing the jari basta although it has been indicated in the order that P.W.2 was very much present in the Court at the time of drawal of sample. P.W.4 has stated that “we drew the sample for chemical examination on 10.04.2022” when that is not the case at all. It is the evidence of P.W.4 that on that day he was the Officer- In-Charge of Malkhana of the office. It is not his evidence that he after the arrival in the office had given the said jari basta to any other official attached to his office for keeping the same in the office Malkhana and taking the charge of the said Malkhana thereafter so as to repell all sorts of doubts in that regard of safe CRLA No.1214 of 2023 Page 8 of 11 keeping/custody. He has rather stated that he kept the articles in the Malkhana. Moreover, the extract of Malkhana Register as regards that entry which is relevant was not sent with the accused to the Court nor the Register had been produced and it has also not been produced and proved during trial. This confirms the doubt as the best evidence is withheld. The forwarding report submitted by P.W.4 while forwarding the accused and the seized articles does not find mention of the fact that the seized articles had been safely kept in the office Malkhana before bringing the same to the Court for production. 10. Law is well settled 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 right from the time of seizure of the contraband till the examination has to be travelled trouble by the prosecution alone by adducing reliable, cogent, unimpeachable and trustworthy evidence in establishing that the articles seized during investigation were kept in safe custody till their production before the Court by overruling all such scope of any meddling with the same. Furthermore, it is also the requirement to ensure safe keeping and dispel the doubt as to tampering that when contraband articles were seized with the seal impression then the CRLA No.1214 of 2023 Page 9 of 11 seal used has to be kept in zima of a reliable person under proper zimanama giving the undertaking to produce it as and when so required by the Court for verification including at the time of production of the articles in Court for comparison and verification. Such are not empty formalities or rituals but necessities to eliminate the chance of tampering the articles. If the brass seal remains with the person who has effected the search and seizure or with anyone who was also a member of the reading party with the person who effected the search, in that event, the chance of tampering is not wholly ruled out which the prosecution owes as a matter of duty to show through clear and acceptable evidence. 11. Evidence as discussed in the foregoing paragraph –(para-9) would reveal that the prosecution has not discharged its duty of proving the above important aspect by adducing clear, cogent and acceptable evidence that the articles which were seized from the possession of the accused, from that time onwards were kept in safe custody till production of the same in Court. Therefore, doubt looms large in mind that the articles which were produced in Court were the very articles that were seized from the accused in saying that there was no chance of tampering with the same. CRLA No.1214 of 2023 Page 10 of 11 For all the aforesaid, the evidence let in by the prosecution is found to be highly deficient in showing the compliance of the provisions of section 55 of the NDPS Act. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 29th September, 2023 passed by the learned 3rd Additional Sessions Judge-cum-Special Judge, Berhampur in Case No.2(a)C.C.19/2022(N) are hereby set aside. Since the Appellant, namely, Prasad Jani, is in custody, be he set at liberty forthwith, if his detention is not wanted in connection with any other case. (D. Dash), Judge Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 21-May-2024 18:27:08 CRLA No.1214 of 2023 Page 11 of 11