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2016 (3) TMI 560 - ORISSA HIGH COURT

2016 (3) TMI 560 - ORISSA HIGH COURT - TMI - Validity of Trial Court order - Contravention of provisions of NDPS Act - Illegal possession and transportation of 342 kgs. of ganja punishable under section 20(b)(ii)(C) of N.D.P.S. Act - Surmises and conjectures - Held that:- even though the samples were handed over to P.W.4 on 13.06.2008 by the Court but P.W.4 kept the samples with him because it was handed over to him in the evening hours on 13.06.2008 and thereafter there were three Government Ho .....

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ty of Trial Court order - Contravention of provisions of NDPS Act - Illegal possession and transportation of 342 kgs. of ganja punishable under section 20(b)(ii)(C) of N.D.P.S. Act - Non-seizure of original of Ext.14 which was the full report in compliance of section 57 of the N.D.P.S. Act - Held that:- in the column No.5, 6, 7 and 8 where name and address of the witness, points to prove, whether personally detected or on information and order of superior officer are required to be mentioned her .....

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pt of such report. The copy of the report which was sent to the Office of Commissioner of Excise has not been seized. Therefore, Ext.14 is not a full report as envisaged under section 57 of the N.D.P.S. Act and a reasonable doubt is created regarding submission of such report in the office of Commissioner of Excise. Therefore, in view of the glaring inconsistencies in the evidence of prosecution witnesses, non-compliance of provisions under section 100(4) of Cr.P.C., sections 52 (3) and 57 of .....

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Sahoo, J. The appellants faced trial in the Court of learned Addl. Sessions Judge -cum- Special Judge under N.D.P.S. Act, Khurda in T.R. Case No. 45/13 of 2008 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter N.D.P.S. Act ) for illegal possession and transportation of 342 kgs. of ganja on 12.06.2008 at Balugaon on N.H.No.5 at about 6 p.m. to 6.15 p.m. in a TATA Safari Car bearing Registration No. OR-02-N- 1368 in contraventi .....

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ff at Balugaon Bazar area and checking suspected vehicles indulged in transporting excisable articles, he deputed two of the Excise Constables namely Rudra Charan Mohapatra and Pradeep Kumar Behera to remain present at Railway level crossing situated outside Balugaon Bazar towards Berhampur to inform him over mobile phone about the movement of suspected vehicles. According to the information of those two Excise Constables, P.W.4 checked two to three vehicles but could not find any excisable arti .....

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of the vehicle and both of them accepted the request of P.W.4., who again directed the driver of the vehicle to open the door and this time the driver opened the door and both the appellants were found inside the vehicle. Appellant Prasanta Kumar Behera was the driver of the vehicle and appellant Dinabandhu Moharana was the owner of the vehicle. P.W.4 found the smell of ganja emitting from inside the vehicle. P.W.4 gave his identity to both the appellants and expressed his intention to search t .....

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gs. of ganja, two gunny bags were found each containing 10 kgs. of ganja, two plastic gunny bags and one gunny bag were found each containing 16 kgs. of ganja, five gunny bags and one plastic gunny bag were found each containing 24 kgs. of ganja and one gunny bag was found containing 30 kgs. of ganja. P.W.4 seized the driving license of the appellant-driver and the documents of the vehicles along with the gunny bags containing ganja and prepared seizure list Ext.1/2. P.W.4 prepared a weighment c .....

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brass seal was handed over to P.W.1 under Zimanama Ext.5/1. P.W.4 made over the copies of the seizure list to the appellants who put their signatures acknowledging the receipt of such copies. P.W.4 prepared sketch map vide Ext.4/2 in presence of the appellants and the witnesses. The statements of the appellants were also recorded separately. P.W.4 arrested both the appellants explaining them the grounds of arrest. P.W.4 took the appellants, the vehicle and seized gunny bags containing ganja to B .....

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vel nagar police station and gave requisition to the I.I.C. of the said police station to keep the gunny bags in the police station Malkhana. The appellants and the vehicle were taken to the Headquarters at Cuttack as the IIC, Kharvel nagar police station did not agree to keep the appellants and the vehicle. On the next day i.e. on 13.06.2008, P.W.4 took the appellants and the vehicle from Cuttack to Kharvela nagar police station, received the gunny bags from the Malkhana-in-charge and found the .....

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ts along with requisition were produced by P.W.4 before the Chemical Examiner. The broken seals were kept inside an envelope which was also sealed with the seal impression of the S.D.J.M, Bhubaneswar. The chemical examiner to Govt. of Orissa, S.D.T. & R.L., Bhubaneswar after analysis gave his opinion under Ext.11 that all the seventeen samples produced before him were found to be ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act. On the next day of seizure, P.W.4 intima .....

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. Act, Khurda has been empowered to try the case, the case records were transferred to the said Court. On 30.03.2009 charge was framed against the appellants by the Trial Court under section 20(b)(ii)(C) of N.D.P.S. Act. The appellants refuted the charge, pleaded not guilty and claimed to be tried. 3. In order to prove its case, the prosecution examined four witnesses. P.W.1 Surendra Swain and P.W.2 Tanuja Kumar Panda who were the independent witnesses did not support the prosecution case, for w .....

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the vehicle in which the two appellants were the occupants. He is the Investigating Officer of the case. The prosecution exhibited fourteen documents and also proved two material objects. Ext.1/2 is the seizure list, Ext.2/2 and Ext.3/2 are the notices served on the appellants Dinabandhu Moharana and appellant Prasanta Kumar Behera respectively under section 50 of the N.D.P.S. Act, Ext.4/2 is the rough sketch map, Ext.5/1 is the Zimanama, Ext.6 is weighment chart of gunny bags containing ganja, .....

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ner of Excise in Form No. C/4. The prosecution marked one envelope containing broken seals as M.O.I and one gunny bag containing ganja as M.O.II. 4. The defence plea of the appellants is that on the date of occurrence, both of them were returning from Berhampur and they were at Balugaon petrol pump to fill up oil and at that time some persons who were in civil dresses came there and took their signatures in some blank papers and foisted a case against them. One witness namely Pranab Kumar Panigr .....

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out 1.30 p.m, the appellants were transporting ganja (Cannabis) and seventeen gunny bags containing 342 kgs. of Ganja were recovered and seized from their possession. The learned Trial Court held that even though P.W.1 and P.W.2, the two independent witnesses are not the local inhabitants of Balugaon at which place the contraband articles were seized, no prejudice has been caused to the accused persons because of non-compliance of provision under section 100 (4) of Cr.P.C. as those witnesses hav .....

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at there is no violation of section 52 of the N.D.P.S. Act and on that score, the accused persons are not entitled to an order of acquittal. The learned Trial Court further held that violation, if any of section 52 of the N.D.P.S. Act cannot be a bonus and on that score, the accused persons are not entitled to an order of acquittal and section 57 of the N.D.P.S. Act is directory and nothing has been brought out as to how the accused persons were prejudiced because of its non-compliance. The lear .....

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gs. and accordingly the appellants were convicted under section 20 (b)(ii)(C) of the N.D.P.S. Act. 6. Mr. Sangram Kumar Das, learned counsel appearing for appellant Prasanta Kumar Behera contended that the two material witnesses namely Rudra Mohapatra and Pradeep Kumar Behera on whose information the offending vehicle was detained and searched were not examined during trial. While conducting search, P.W.4 has not complied with the provisions laid down under section 100 (4) of the Criminal Proced .....

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ced the appellants, the vehicle and the seized gunny bags in Balugaon Police Station, the Inspector in-charge and the other officers were absent is not correct in view of the statement of D.W.1, the Officer in-charge of Balugaon Police Station that the station diary did not reveal that the Excise people had come to the police station with contraband articles like ganja and with the appellants. The learned counsel further emphasized that even though several police stations were there by the side .....

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t been produced by the witness who was given zima of such seal by P.W.4 at the time of production of contraband articles in Court for verification and therefore it cannot be said with certainty that the seal has not been tampered with or the articles which were produced in Court and sent for chemical examination were the very articles which were seized. The learned counsel contended that since the entire process of search, seizure and arrest appears to be suspicious and shrouded in mystery, bene .....

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on the other hand P.W.1 and P.W.2 who belonged to distance places have been cited as witnesses. He emphasized that the conduct of P.W.4 in keeping the contraband articles at Kharavel nagar Police Station, Bhubaneswar and taking the appellants and the vehicle to Cuttack is suspicious. The Malkhana register of Kharavel nagar Police Station should have been produced to substantiate that the contraband articles were kept in safe custody. The learned counsel further contended that the statement of P. .....

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hout delivering to the chemical examiner, the possibility of tampering with the sample packets cannot be ruled out. While concluding his argument, the learned counsel emphasized that the punishment being stringent in nature, it was the duty of the Investigating Officer to comply with the provisions of the N.D.P.S. Act in its letter and spirit and having not done so, benefit of doubt should be extended in favour of the appellants. Mrs. Saswat Patnaik, learned Addl. Government Advocate on the othe .....

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cannot be a ground to throw away the entire case in view of the settled position of law that in such type of cases the version of official witnesses can be acted upon to adjudicate the guilt of the accused. 7. Law is well settled that the provisions of sections 100 and 165 of the Code of Criminal Procedure, 1973 which are not inconsistent with the provisions of the N.D.P.S. Act are applicable for effecting search and seizure under the N.D.P.S. Act. Section 165 Cr.P.C. deals with search by an of .....

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er or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and the officer may issue an order in writing to such persons or any of them to be a witness to the search. Even though sub-section (4) of section 100 Cr.P.C. states that such .....

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section 100 Cr.P.C. Even though section 100 Cr.P.C. states about the search of a closed place but in view of definition of place as per section 2 (p) of Cr.P.C., it includes a house, building, tent and vessel. Contentions were raised by the learned counsel for the appellants that the independent witnesses P.W.1 and P.W.2 are not the inhabitants of the locality in which place the vehicle was detained and searched and there is also no evidence that they were respectable persons and therefore sect .....

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ality while conducting search and seizure and not cited two persons like P.W.1 and P.W.2 as witnesses who are neither of that locality nor they are respectable persons. Adverting to the contentions raised, it is found that the search and seizure were made on 12.6.2008 in the afternoon. The time and place was such that P.W.4 could have easily got independent and respectable persons of the locality as witnesses to the search and seizure. The location of the spot was at Balugaon market which was al .....

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ming of search and seizure, non-availability of independent and respectable witnesses of the locality and noninclination of such persons even though available to become witnesses to the search and seizure are the factors to be taken note of while assessing the non-compliance of sections 100 (4) and 165 (4) of Cr.P.C. If after making reasonable efforts, the police officer is not able to get public witnesses to associate with the raid or arrest of the accused, the arrest and the recovery made woul .....

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nclined to be the witnesses, I am of the view the I.O. has deliberately flouted the statutory provisions. An officer conducting search and seizure under N.D.P.S. Act is bound to follow the procedure envisaged under law and cannot act at his sweet will, whim and fancy. Both the independent witnesses have not supported the prosecution case and they have been declared hostile by the prosecution. P.W.1 has stated that his signatures were obtained on blank papers near Hanuman Mandir which was situate .....

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ving a hotel as per their statement. Therefore the evidence of these independent witnesses are no way helpful to the prosecution and accordingly those are to be discarded. However it is the settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be a ground to discard the prosecution case in toto. On the other hand if the statements of the official witnesses relating to search and seizu .....

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at the railway level crossing situated outside Balugaon Town towards Berhampur to inform him over mobile phone about the movement of the suspected vehicles and that basing on their information, the offending vehicle was detained in front of Andhra Bank situated at Balugaon Bazar. P.W.4 stated that after the vehicle was detained and ganja was found inside, he telephoned to the two excise constables who were deputed to perform duty near the Railway level crossing and they returned after getting in .....

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t distance of about two and half kilometers from the place where they were performing patrol duty. In view of such distance between the two places i.e. the place where the two excise constables were posted to give information and the place where P.W.4 and other excise staffs were performing patrol duty, the statement of P.W.4 that the Tata Safari reached near Andhra Bank about 10 to 15 minutes after he received the telephone from the excise constables appears to be a suspicious feature. P.W.4 ha .....

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when the accused persons and seized articles were produced in Court which is evident from the order sheet. Handing over the brass seal to an independent, reliable and respectable person and asking him to produce it before the Court at the time of production of the seized articles in Court for verification are not the empty formalities or rituals but is a necessity to eliminate the chance of tampering with the articles. Sub-section (3) of section 52 of the N.D.P.S. Act states that every person a .....

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hicle and the seized gunny bags containing ganja to Balugaon Police Station but found one constable to be present in the Police Station who reported that IIC and other police officers had left for duty and therefore he brought the accused persons, the vehicle along with the gunny bags containing ganja to Bhubaneswar. In that respect the evidence of D.W.1 who was the Officer in-charge of Balugaon Police Station at the relevant time is very much important. D.W.1 has stated that from 9.30 a.m. of 1 .....

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duction of the appellant with the seized articles at the nearest police station to the spot i.e. Balugaon Police Station on the date of occurrence is not corroborated either by documentary evidence or by the evidence of D.W.1. P.W.4 has stated that Tangi Police Station, Jankia Police Station, Khandagiri Police Station, Nayapalli and Sahidnagar Police Station fall by the side of N.H.5 while coming from Balugaon to the Sessions Court at Bhubaneswar but the appellants and the seized articles were n .....

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would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In case of State of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283, it is held that the provisions of sections 52 and 57 of the N.D.P.S. Act which deal with the steps to be taken by the officers after making arrest or seizure under se .....

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hes of the seized ganja. In view of definition of ganja under section 2(iii)(b), the seeds and leaves when those were not accompanied by the tops should have been excluded. Even though the same was not done in this case before taking the weight but in view of the huge quantity of ganja seized in this case, it would not create much difference for assessing the commercial quantity. Even though P.W.4 stated to have handed over the gunny bags containing ganja to the Inspector-in-Charge of Kharavel N .....

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y after seizure till it was produced before the Court. In case of Sinic Patricia -Vrs.- State reported in (1994) 7 Orissa Criminal Reports 277, it is held that 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 very articles produced before .....

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or an independent officer ought to have investigated the case. 9. The learned Counsel appearing for the accused submitted that the controversy involved in this case is no longer res integra. In Megna Singh v. State of Haryana 1995 CriLJ 3988 , this Court has taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under: 4. ...We have also noted another disturbing feature in this case. P.W.3, .....

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to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. 10. The ratio of Megna's case has been followed by other cases. 11. In another case in Balasundaran v. State 1999 (113) ELT 785 (Mad), the Madras High Court took the same view. The relevant portion reads as under: 16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investig .....

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ad searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated. 12. In this view of the legal position, as crystallized in Megna Singh's case (supra), the High Court was justified in acquitting the accused. In view of the principle decided by the Hon ble .....

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mples were handed over to him in the evening hours on 13.06.2008 and thereafter there were three Government Holidays for which he kept the samples with him and produced it on 17.06.2008 at the S.D.T. & R.L. The samples were received at the S.D.T. & R.L. on 17.06.2008 and the seals on the sample cartoon and seventeen numbers of sample envelopes were found intact and identical with the specimen impression of the seal given on the forwarding memo. Therefore, the submissions of the learned c .....

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of the N.D.P.S. Act. Any arrest or seizure made under the N.D.P.S. Act has to be reported to the immediate official superior of the person making such arrest or seizure within forty-eight hours and a full report indicating all the particulars of arrest or seizure is envisaged under section 57 of the N.D.P.S. Act. Such a report is the safeguard to prevent any concoction or fabrication regarding arrest or seizure at a later stage. This is one of the external checks which not only protects the int .....

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