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2000 DIGILAW 239 (ORI)

RANJIT SENAPATI v. STATE OF ORISSA

2000-05-02

P.K.PATRA

body2000
P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 23-9-1998 passed by Shri A. P. Das, Second Additional Sessions Judge, Cuttack in G. R. Case No. 2262 of 1996 (Tr. No. 2/97) convicting him under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N. D. P. S. Act') and sentencing to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs. 1,00,000. 00, in default to undergo rigorous imprisonment for a further period of two years. ( 2 ) PROSECUTION case runs as follows :on 30-12-1996 at about 2. 30 p. m. the informant (P. W. 1), a Sub-Inspector of Police, Malgodown Police Station, Cuttack wasperforming patrol duty with P. W. 5, an A. S. I. of the said Police Station at the College Square, Cuttack and he received reliable information that the appellant who was working as a Collection Agent in the Sulabh Sauchalaya at Station Road, Cuttack was residing with his wife in one of the rooms of the said Sulabh Sauchalaya and was dealing in brown sugar. Since the informant had no sufficient time to obtain a search warrant from Court, or to requisition the services of an Executive Magistrate and as there was chance of the appellant concealing the brown sugar and escaping from the Sulabh Sauchalaya, the informant communicated the fact to the Additional Superintendent of Police, Cuttack who directed him to proceed to the spot and guard the spot till arrival of the Deputy Superintendent of Police (P. W. 7 ). Accordingly P. W. 1 and his staff went to the spot. At about 3 p. m. , P. W. 7, the Deputy Superintendent of Police, Cuttack, reached the spot with two lady Constables. Two local witnesses were called and all of them went to the room where the appellant and his wife were residing. Since the door of the room had been closed from inside, the appellant was called and he opened the door. His wife was found inside the room. After completion of the formalities of search and taking the consent of the appellant and his wife, the room was searched. During the search, two polythene packets, one containing twenty-three small paper packets and the other containing twenty two small paper packets, were seized along with cash of Rs. 67. His wife was found inside the room. After completion of the formalities of search and taking the consent of the appellant and his wife, the room was searched. During the search, two polythene packets, one containing twenty-three small paper packets and the other containing twenty two small paper packets, were seized along with cash of Rs. 67. 06 paise and small pieces of paper, probably kept for packing brown sugar, one tin Diba containing an empty matchbox, ash, cigarette buds and one burnt Jari. It is alleged that fortyfive small paper packets found in the polythene packets contained brown sugar as opined by the Scientific Officer (P. W. 4) and on weighment the same was found to be 23. 450 grams. The services of a goldsmith was requisitioned for weighment of the same. Samples were drawn from each polythene packet and the polythene packets as also the samples were duly sealed using a brass seal and paper seals containing signatures of the accused persons, the goldsmith and other witnesses. The brass seal used in the process was then left in the Zima of a witness named Nabakishore Hout, who has been examined as D. W. 1 in this case. The appellant and his wife could not produce any authority to possess brown sugar. Hence P. W. 1 prepared the report Ext. 5 and send the same to the Police Station for registration of the case, through P. W. 5 and took up preliminary investigation. He arrested the appellant and his wife and took them to the Police Station. The Inspector-in-charge of the Police Station (P. W. 6) registered the case and took over charge of investigation. During investigation P. W. 6 re-sealed the material objects with his own brass seal and kept the same in the Malkhana of the Police Station. He sent information to the Deputy Superintendent of Police (City) as also to the Superintendent of Police, Cuttack and visited the spot. He forwarded the appellant and his wife to Court in custody along with the material objects on 31-12-1996 and prayed before the S. D. J. M. for sending the material objects for chemical analysis and on 3-1-1997 the sample packets were sent for chemical examination. After receipt of the chemical examination report, the investigation was completed and charge-sheet was submitted against the appellant and his wife who stood their trial. After receipt of the chemical examination report, the investigation was completed and charge-sheet was submitted against the appellant and his wife who stood their trial. ( 3 ) THE plea of the defence is one of denial. According to defence, the appellant and his wife had come to Cuttack for medical examination of the wife of the appellant due to her pregnancy and they had gone to the Sulabh Sauchalaya for answering call of nature and that the contraband article was not seized from their conscious and exclusive possession. ( 4 ) IN order to bring home the charge, prosecution has examined seven witnesses in all. of them, P. W. 1 is the S. I. of police who detected the case, P. W. 5 is the A. S. I. of Police who had accompanied P. W. 1 on patrol duty, P. W. 2 is the goldsmith who weighed the seized packets, P. W. 3 is the Lady Constable who accompanied the Dy. S. P. to the spot, P. W. 4 is the Scientific Officer of the Forensic Science Laboratory, Cuttack who was called to the spot and who opined that the paper packets contained brown sugar. P. W. 6 is the Inspector-in-charge of the Police Station who investigated the case and submitted charge-sheet, P. W. 7 is the Dy. S. P. (Crimes), Cuttack who went to the spot with two lady Constables and in whose presence the seizure was effected. Defence has examined one witness (D. W. 1) in support of its case. ( 5 ) MR. Pushpalak, learned counsel for the appellant, challenged the iimpugned judgment contending that the learned Addl. Sessions Judge erred in coming to the conclusionthat the contraband article was seized from the exclusive and conscious possession of the appellant and that the appellant should have been acquitted for non-compliance with the mandatory provisions of Ss. 41. 42, 50, 55 and 57 of the N. D. P. S. Act. Mr. R. K. Patnaik, learned Addl. Standing counsel for the State has supported the impugned judgment refuting the contention of the learned counsel for the appellant. ( 6 ) P. W. 1 has stated in Court as well as in the FIR (Ext. 5) that the appellant was staying in one room of the Sulabh Sauchalaya at Station Bazar, Cuttack as the Collection Agent of the said Sauchalaya. ( 6 ) P. W. 1 has stated in Court as well as in the FIR (Ext. 5) that the appellant was staying in one room of the Sulabh Sauchalaya at Station Bazar, Cuttack as the Collection Agent of the said Sauchalaya. Investigation was not directed to establish that the appellant was in fact working as the Collection Agent of that Sauchalaya in order to refute the defence plea that the appellant and his wife had come to Cuttack on the very day and had gone to the Sauchalaya for answering call of nature. That apart, though P. W. 1 has stated that he found the personal belongings of the appellant, such as, bed, charpoy, wearing apparels, attache, trunk, utensils, etc. , he did not seize the same. The statement of the investigating Officer (P. W. 6) reveals that investigation was not directed to prove that the appellant was the Collection Agent of the Sauchalaya. P. W. 7 has also stated that he had no idea if the employees of the Sauchalaya were employed on shift basis and if the appellant was the caretaker of that Sauchalaya. According to P. W. 5, one sweeper, named, Kedar was present at the time of seizure of the contraband article who informed that the appellant and his wife were there in a room, but he had not stated that the said sweeper informed that the appellant was the caretaker of the Sauchalaya. The said sweeper-Kedar has not been examined in support of the prosecution case. P. W. 1 has stated that he has not specifically mentioned the number of Collection Agents and Sweepers employed in the Sauchalaya. According to him there were sweepers working in the Sauchalaya and he could not say if there was any rest place in the Sauchalaya for the Collection Agents and Sweepers working there. In a case of this nature, investigation should have been directed to seize the relevant registers and documents from the concerned authorities to establish that it was the appellant and none else who was working as the caretaker or Collection Agent of the Sauchalaya and in that capacity was occupying a room in the Sauchalaya. But prosecution has failed to do so. Hence it cannot be held that the appellant was occupying a room in the Sauchalaya and was staying there with his wife. But prosecution has failed to do so. Hence it cannot be held that the appellant was occupying a room in the Sauchalaya and was staying there with his wife. ( 7 ) D. W. 1 who is a betel shop-keeper adjacent to the Sauchalaya is a witness to seizure of the article from the Sauchalaya but he has not been examined by the prosecution and has been examined by the defence in support of its case. He has stated that a female was standing at the gate of the Sauchalaya who was being interrogated by the police and she was stating that she came from the railway station to the Sauchalaya and had come to Cuttack to go to Dr. Ahalya Dei's Nursing Home for her treatment and at that time a male came from the latrine. Thereafter police took his signatures in 5/6 blank papers. According to him, there were two Collection Agents and two Sweepers employed in the Sauchalaya. There is only one rest room in the said Sauchalaya which is accessible to all. He added that the female and male interrogated by police in his presence were the appellant and his wife whom he saw at the Sauchalaya for the first time and had not seen them prior to that. This statement of D. W. 1 cannot be lightly brushed aside considering the other circumstances of the case. ( 8 ) ACCORDING to P. W. 1 he recovered two polythene packets, M. Os. I and II, containing brown sugar from the rack on the wall of the room and that the said room was not earmarked for accommodation of the Collection Agent of the Sauchalaya. P. W. 3 has stated that from a wooden self in the room one yellow colour Diba containing twentyfive small packets and one green colour Diba containing twentytwo small packets were recovered which is not consistent with the prosecution case. In her statement in cross-examination she stated that she did not know the person who was present in the counter of the Sauchalaya at the time of her arrival there and who showed the room that was searched. In her statement in cross-examination she stated that she did not know the person who was present in the counter of the Sauchalaya at the time of her arrival there and who showed the room that was searched. P. W. 5 has stated that he remained outside while the search was conducted and he could not specify the place of the room wherefrom the article was recovered and has stated that subsequently he came to know about recovery of fortyfive packets of brown sugar from the possession of the appellant. In his statement in cross-examination he has stated that he was away from the seizure and had no personal knowledge about the same. ( 9 ) P. W. 7 who was present at the time of search and seizure has stated that he remained at the door of the room from which the article was recovered. In his statement in cross-examination P. W. 7 has stated that he did not mark the exact place for the room wherefrom the article was recovered. It cannot be believed for a moment that P. W. 7 standing at the door of the small room could not have marked the place of the room wherefrom the contraband article and other articles were recovered. Thus the statements of P. Ws. 1, 3, 5 and 7 are not consistent with each other regarding the exact place in the room wherefrom the contraband article and other articles were recovered. ( 10 ) IN view of the discussions made above, it is found that the prosecution has failed to establish that the appellant was in occupation of the room of the Sauchalaya as an employee of the Sauchalaya and that the contraband article was seized from his conscious and exclusive possession. In a decision reported in Krushna Dora v. State, reported in (1994) 7 OCR 590. It has been held that prosecution is obliged to establish by cogent and reliable evidence that the appellant was in exclusive and conscious possession of the contraband article in order to sustain conviction for the offence of illegal possession of the contraband article. ( 11 ) IN the present case, as discussed earlier, the evidence of prosecution is miserably lacking in this respect. In view of the above finding, discussion regarding non-compliance with the mandatory provisions of the N. D. P. S. Act will be merely academical. ( 11 ) IN the present case, as discussed earlier, the evidence of prosecution is miserably lacking in this respect. In view of the above finding, discussion regarding non-compliance with the mandatory provisions of the N. D. P. S. Act will be merely academical. ( 12 ) FOR the reasons discussed above, the inevitable conclusion is that prosecution has not been able to prove its case against the appellant beyond reasonable doubts and hence the appellant is entitled to acquittal. ( 13 ) IN the result, the Criminal Appeal is allowed. The impugned judgment dated 23-9-1998 and the sentence passed against the appellant are set aside and the appellant is acquitted of the charge. He be set at liberty forthwith if his detention is not required in any other case. Appeal allowed.