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2003 DIGILAW 25 (ORI)

Brahmananda Rout v. State of Orissa

2003-01-10

L.MOHAPATRA

body2003
JUDGMENT L. MOHAPATRA, J. — The appellant having been convicted for commission of offence under Sections 18 and 20 (b)(i) of the N.D.P.S. Act and having been sentenced to undergo R.I. for ten years and to pay a fine of Rs. 1,00,000/- in default to undergo further R.I. for two years for his conviction under Section 18 and further sentenced to imprisonment for three years and to pay a fine of Rs. 5,000/-, in default to undergo R.I. for one month for his conviction under Section 20(b)(i) of the Act has preferred this appeal. 2. The case of the prosecution is that on 27.6.1997 at about 1.00 A.M. the S.I. of Excise, P.W.2 on receiving informa¬tion about transportation of opium and ganja by the accused-appellant from his village Narendrapur to Naganpur Hat, recorded the same in his Information Register and after consulting with the Deputy Commissioner of Excise he left Cuttack along with his Inspector, P.W.1 and one B. K. Mishra (his staff), A.P.R. Force and Executive Magistrate Gokul Chandra Jena and arrived at Narendra¬pur Gada at about 3.30 P.M. He had received the information of probable transportation of opium and ganja by the accused and he communicated the copy of the information to his immediate superi¬or B.D.Mishra, Inspector at the spot. The raiding party found the accused coming towards them from the side of Narendrapur village riding one Luna Moped without having any registration number. On seeing the accused, P.W.2 in presence of witnesses detained him who got down from the vehicle and suddenly brought out one iron farsa which was hanging on the left side handle of his Luna and attempted to attack P.W.2 and other members of the raiding party. However, he was caught hold of and the farsa was snatched away from him. In presence of the witnesses and the Magistrate, P.W.2 gave his identification to the accused and told him that he is suspecting him to be in possession of narcotic substances and wanted to search him and gave him an option and wanted to know as to whether the accused wants to be searched in presence of a Gazetted Officer or a Magistrate. The accused having exercised his option and told that he has no objection to be searched in presence of a Magistrate, the search was carried out after giving personal search of the raiding party. The accused having exercised his option and told that he has no objection to be searched in presence of a Magistrate, the search was carried out after giving personal search of the raiding party. On search 0.125 K.G. opium wrapped in a polythene sheet kept in the lungi worn by the ac¬cused was recovered from the waist and one Khaki coloured big cloth bag containing 3.500 K.Gs. of ganja having in the clamps of the handle of the Luna was also seized. Thereafter, P.R. was submitted and the accused faced trial. The plea of the accused-appellant is complete denial of the entire occurrence. 3. Prosecution examined three witnesses who are official witnesses and on the basis of their evidence, the learned Ist Addl. Sessions Judge, Cuttack convicted the appellant for the commis¬sion of the offence as stated above and sentenced him to undergo imprisonment as indicated earlier. 4. Sri B. Panda, the learned counsel appearing for the appellant challenged the order of conviction solely on the ground of non-compliance of the mandatory provision of the Act. He also challenged the impugned order on the ground that even though the independent witnesses were available at the spot not a single witness has been examined on behalf of the prosecution. The learned counsel submitted that though P.W.2 in his evidence has stated that an option was given to the accused to say as to whether he wants to be searched in presence of a Gazetted Officer or Magistrate and that he appellant exercised his option for being searched in presence of a Magistrate, the same does not get corroboration from the evidence of P.W.1 who is the superior officer of P.W.2 and the Magistrate having not been examined, the evidence of P.W.2 cannot be accepted and as such there is non-compliance of the provision contained in Section 50 of the Act. P.W.2 in his deposition has stated that he explained to the accused in clear and explicit language that as per provision of Section 50 of the Act he had the statutory right to be searched in presence of a Gazetted Officer or a Magistrate and asked for his option. In reply, the accused is alleged to have exercised his option and expressed that he has no objection to be searched in presence of a Magistrate. This part of the evidence is not corroborated by P.W.1. In reply, the accused is alleged to have exercised his option and expressed that he has no objection to be searched in presence of a Magistrate. This part of the evidence is not corroborated by P.W.1. P.W.1 in his deposition has stated that when they were proceeding, they saw the accused coming in a Luna and P.W.2 directed the accused to stay. The accused did not obey him and went away. When the staff attempted to catch hold of the accused, he leaving the Luna fled away and started running. But the staff could catch hold of the accused and the accused was trying to assault the staff by means of a farsa. This witness has further stated that the P.W.2 overpowered the accused and caught hold of the accused and farsa whereafter they searched the body of the accused and recovered the contraband articles. Though this witness states about presence of a Magistrate, he is silent about any option being given to the accused by P.W.2. P.W.3 the only other witness examined on behalf of the prosecution is a constable of Excise Department who in his deposition has stated that P.W.2 asked the accused if he wants to be searched before a Magistrate to which the accused had no objection. This witness is silent with regard to the option exercised by the accused as indicated by P.W.2. In view of such nature of evidence with regard to compliance of Section 50 of the Act, it was the duty of the prosecution to examine the Magistrate to prove that such an option was in fact given to the accused and the accused had exer¬cised his option to be searched in presence of a Magistrate. It also appears from the evidence of P.W.2 that an independent witness B. K. Mishra had accompanied the raiding party and was all along present. However, the prosecution did not examine this witness who could throw some light with regard to compliance of the provision contained in Section 50 of the Act. In the case of State of Punjab v. Balbir Singh and others reported in (1994) 7 O.C.R. (SC) 283 the Apex Court observed that Section 50 of the Act is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities and compliance of the said provision is mandatory. The Apex Court in the said decision has also held that non-compliance of Section 50 affects the prosecution case and vitiates the trial. 5. In view of the discussions made above, a grave doubt arises as to whether there was compliance of Section 50 of the Act or not. Since a doubt arises as to whether there was compli¬ance of provisions of Section 50 of the Act, the benefit of the same has to go in favour of the appellant Accordingly, I allow the appeal, set aside the impugned judgment and order passed by the learned Ist Addl. Sessions Judge, Cuttack. If the accused-appellant is in custody he be released forthwith, if his detention is not required in connection with any other case. Appeal allowed.