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2003 DIGILAW 391 (ORI)

CHITARANJAN DAS v. STATE OF ORISSA

2003-06-18

A.S.NAIDU

body2003
JUDGMENT : A.S. Naidu, J. - The Appellant, in this criminal appeal, has challenged the judgment and the order of conviction dated 11.1.2002 passed by the learned Sessions Judge-cum-Special Judge, Cuttack in G.R Case No, 343 of 2000 (Trial No. 4 of 2000) finding the Appellant guilty u/s 20 (b) (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "N.D.P.S. Act") and convicting him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/-, in default, to undergo RI. for a further period of one year. 2. The prosecution case in short is that on March 12, 2000 on the basis of Station Diary Entry No. 295 made at Lalbag Police Station, the police personnel along with Shri Sapan Chandra Roy, the Executive Magistrate proceeded to investigate if the accused-Appellant was possessing Ganja and selling the same to different persons near his house situated at Daraji Sahi. On arrival they found that the Appellant was carrying a drum and moving on the road. The S.I. of Police (P.W. 1) detained him and disclosing his identity expressed his intention to search him in presence of the Executive Magistrate (P.W. 3) on the suspicion that he was in possession of Ganja and with his due consent and in presence of witnesses, searched the Appellant and the drum which he was carrying. P.W. 1 also intimated P.W. 5 who was an I.P.S. Officer about the search and he immediately arrived at the spot. It is asserted that the search was conducted after observing all formalities. Though nothing could be found from the wearing apparels of the Appellant and from his person, yet on search of the drum which he was carrying Ganja wrapped in polythene was seized. On weighing, the same came 10,'1.8 K.Gs. Two samples (A-1 & A-2) weighing 100 gMs. each were collected, packed and sealed in presence of witnesses. The Executive Magistrate also put his seal on each of the packets and the stickers were pasted on the packets with the signature of the Executive Magistrate and the witnesses. The seizure list Ext-2 was prepared, the Appellant was arrested and the seized Ganja was brought to the police station. Thereafter the F.I.R (Ext-3) was lodged before the Inspector-in?Charge of Lalbag police station who kept the seized articles in Malkhana. The seizure list Ext-2 was prepared, the Appellant was arrested and the seized Ganja was brought to the police station. Thereafter the F.I.R (Ext-3) was lodged before the Inspector-in?Charge of Lalbag police station who kept the seized articles in Malkhana. On 13.3.2000, the Investigating Officer produced the accused-Appellant and the seized materials before the learned S.D.J.M., Cuttack. As per the direction of the S.D.J.M., the seized articles were again produced before' him on 14.3.2000, out of which the sample A-1 was sent to the Chemical Examiner. After analysis, the sample was found to be Ganja and finally charge-sheet was submitted against the accused-Appellant. 3. The plea of the accused was one of complete denial. 4. To substantiate its case, the prosecution examined six witnesses out of whom all are police officers except P.W. 3, the Executive Magistrate who was present at the time of seizure. The prosecution also exhibited six documents including Ext-6, the chemical examination report and the seizure list Ext-2 containing the signature of the Executive Magistrate. The written consent given by the accused-Appellant to conduct the search was exhibited as Ext-1. 5. On the basis of the evidence, both oral and documentary and particularly on the evidence of the Executive Magistrate (P.W.3) and the report of the Chemical Examiner (Ext-6), the trial Court arrived at the conclusion that the evidence adduced by the prosecution was reliable and could be accepted. Accordingly, the Court below found the accused guilty and sentenced him. The said order of conviction and sentence, as stated above, is impugned in this case,. 6. Learned Counsel for the Appellant at the outset submitted that the Court below has acted illegally and with material irregularity and proceeded more on surmises and conjectures than the evidence available on record. According to the Learned Counsel, the findings arrived at by the Court below have No. basis and the Appellant is entitled to be acquitted in view of the following infirmities apparent on the face of record: (A) Though according to the prosecution, the seizure took' place on the road of Darji Sapi, Cuttack, a busy locality, not a single independent witness was examined. All the witnesses examined by the prosecution are police officers except the Executive Magistrate.(P.W. 3). Non-examination of an independent witness throws clouds of suspicion on the prosecution case. All the witnesses examined by the prosecution are police officers except the Executive Magistrate.(P.W. 3). Non-examination of an independent witness throws clouds of suspicion on the prosecution case. (B) Relying upon Section 50(1) of the N.O.P.S. Act, Learned Counsel for the Appellant submitted that the provisions of Section 50 (1) of the Act have not been duly complied with and thus, the entire prosecution case falls flat. (C) It is also reiterated that the provisions of Section 42 (1) of the Act have not been complied with nor the station diary entry on the basis of which the search was conducted on the alleged date of occurrence, has been produced in Court. (0) Provisions of Section 55 of the N.O.P.S. Act have also not been duly complied with and the so-called seized materials were not kept in safe custody. Learned Counsel for the Appellant forcefully submitted that due to the aforesaid laches committed 'by the Investigating Officer, the Court below acted illegally in believing the prosecution case and thus, it is a fit case where the appeal should be allowed and the Appellant should be acquitted. 7. Learned Counsel for the State, on the other hand, strenuously took me through the oral evidence of all the witnesses examined during the trial. Laying emphasis on the evidence of P.W. 3, an officer of Orissa Administrative Service and an Executive Magistrate, Learned Counsel for the State submitted that P.W. 3 is an independent witness and is a high ranking officer of the Orissa Administrative Service. The evidence given by him clearly reveals' that all the formalities required to be complied with?under the N.D.P.S. Act had been sacrosanctly observed by the prosecution. It is further submitted that apart from P.W. 3, another Gazetted Officer- (P.W. 5), an officer belonging to the Indian Police Service Cadre was also present at the time of seizure. My attention was also drawn to the written consent given by the accused-Appellant at the time of seizure. In addition to the aforesaid document, Learned Counsel for the State relied upon Ext?6, the report submitted by the Chemical Examiner which, according to the prosecution, clinches the issue regarding possession of Ganja by the Appellant. 8. After hearing Learned Counsel for both the parties, being the final Court of facts, I once again scanned through the evidence both oral and documentary. 8. After hearing Learned Counsel for both the parties, being the final Court of facts, I once again scanned through the evidence both oral and documentary. The submissions made by the Learned Counsel for the Appellant that the story presented by the police officers cannot be believed in toto in absence of independent witnesses, cannot be accepted in all cases. The SC in the case of State Government of NCT of Delhi v. Sunil and Anr. 2001 (1) Cri 176 observed as follows: It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang-over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way round. That official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a Police Officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the Police Officer is either unreliable or at least in safe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the Police the Court could certainly take into account the fact that No. other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the Police action as unreliable to start with, nor to jettison such action merely for the reason that Police did not collect signatures of independent persons in the documents made contemporaneous with such actions. Similar view was also expressed by the SC in the case of Jeil Singh v. State of Haryana (2001) CCR 59 (SC). Similar view was also expressed by the SC in the case of Jeil Singh v. State of Haryana (2001) CCR 59 (SC). It was held that seizure of opium not from the person of the accused, but from the bedding he was carrying, even in absence of independent witness, can be accepted if the evidence of the I.O. is unshaken and worthy of acceptance. 9. In the present case, though the Police Officers, the Executive Magistrate (P.W. 3) and the Gazetted Officer (P.W. 5) were cross-examined at length, nothing could be elicited from them, to disbelieve the prosecution case. Added to it, as would be evident from Ext-1/1, the Appellant after being cautioned as required u/s 50 of the N.D.P.S. Act, gave consent to be searched in presence of a Gazetted Officer (P.W. 5) and the Executive Magistrate (P.W. 3). The written consent is available on record. Thus, the plea taken by the Appellant that the provisions of Section 50 (1) of the Act were not duly complied with, cannot be accepted. 10. P.W. 1 in his deposition has clearly stated that though persons residing in the neighborhood were available who had seen the seizure, none of them came forward to sign as a seizure witness. The prosecution when confronted with such a situation could not but proceed with the investigation with witnesses available. That the neighbours of the Appellant refused to become seizure witnesses is also reiterated by P.W. 2, the A.S.I. The said fact has also been corroborated by the other witnesses. Asstated earlier, if independent witnesses refused to co-operate in the investigation for some reason or other, the law-enforcing agency had No. other option but to proceed with the investigation. In such eventuality, according to me, the entire prosecution evidence cannot be disbelieved or thrown to the wind. Admittedly, in the present case, on search nothing could be found from the person of the accused-Appellant. But Ganja was seized from a drum/container which the Appellant was carrying. The evidence of all the witnesses (P.Ws. 1 to 5) clearly leads to an irresistible conclusion that on search of the tin container, a packet containing 1.8. K.Gs of Ganja being wrapped in polythene was found. But Ganja was seized from a drum/container which the Appellant was carrying. The evidence of all the witnesses (P.Ws. 1 to 5) clearly leads to an irresistible conclusion that on search of the tin container, a packet containing 1.8. K.Gs of Ganja being wrapped in polythene was found. The question as to whether the provisions of Section 50 of the N.D.P.S. Act could be strictly adhered to while searching any article or container carried by the Appellant, was answered by the SC in the case of Kalema Thumba v. State of Maharashtra (2000) 18 OCR (SC) 45 observing as follows: As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh 1994 (4) SC 595: (1999) 17 OCR (SC) 275, this Court has held that the requirement of informing the accused about his right u/s 50 comes into existence only when person of the accused is to be searched. The decision of this Court in State of Punjab Vs. Jasbir Singh and Others wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands over-ruled by the decision in Bladev Singh's case (supra). If a person is carrying a bag or some other article with him and narcotic drug or the psychotherapy substance is found from it, cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the Appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate. Ratio of the aforesaid judgment clearly fits to the present case. 11. Reading of the evidence both oral and documentary also clearly reveals that the provisions of Section 42(1) of the N.D.P.S. Act has been duly complied with. Though the station diary entry was not produced, it reveals from the oral evidence as well as the F.I.R. (Ext-3) that pursuant to the station diary entry No. 295 dated 12.3.2000, police proceeded to the residence of the Appellant which is situated at Daraji Sahi along with the Executive Magistrate. Though the station diary entry was not produced, it reveals from the oral evidence as well as the F.I.R. (Ext-3) that pursuant to the station diary entry No. 295 dated 12.3.2000, police proceeded to the residence of the Appellant which is situated at Daraji Sahi along with the Executive Magistrate. The seizure list (Ext-2) which was prepared at the spot also reveals the station diary entry number. The contention of the Learned Counsel for the Appellant that the entire story of the prosecution should be disbelieved only on the simple ground that the station diary entry was not produced in Court though attractive cannot be accepted. The SC in the case of Kalpanath Rai v. State AIR 1998 SC 201 observed as follows: We do not find any force in the said contention. No. doubt Daily Diary is a document which is in constant use in police station. But No. prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every case, the function of the police station would be greatly impaired. It is neither desirable nor feasible for the prosecution to produce such diaries in all cases. of course it is open to the defence to move the Court for getting down such diaries if the defence wants to make use of it. 12. I am also not in a position to accept the contention of the Learned Counsel for the Appellant that provisions of Section 42 of the N.D.P.S. Act have not been complied with. In fact, the evidence recorded and the materials produced clearly reveal that the prosecution party raided the spot at 8.45 P.M. and found the accused-Appellant on road carrying the tin container in his hand and he was trying to run away from the spot in a bicycle. In view of the fact that the accused-Appellant was found OR the road while trying to slip off carrying the container and on search of the container, Ganja was seized, the contention of the Learned Counsel for the Appellant that police did not search the residence or the place of concealment has No. legs to stand. In view of the fact that the accused-Appellant was found OR the road while trying to slip off carrying the container and on search of the container, Ganja was seized, the contention of the Learned Counsel for the Appellant that police did not search the residence or the place of concealment has No. legs to stand. In fact the contraband article was carried by the Appellant in a tin container which was seized and thus, No. infirmity or irregularity was committed by the prosecution and I have No. reason to interfere with the order of conviction passed by the trial Court and I confirm the same. 13. The Appellant is a young man. The quantity of Ganja seized was only 18 K.Gs.. The quantity of Ganja i.e. "Cannabis" as per the definition u/s 2 and admittedly seized from the Appellant was less than the small quantity as stipulated in the Notification issued by the Government in exercise of powers conferred by Clause-VIII (a) and Clause-XXIII (a) of Section 2 of the N.D.P.S. Act, 1985. The Appellant has also No. criminal background. He was sentenced to undergo rigorous imprisonment for a period of five years by the Court below. He is in custody for more than three years. Taking into consideration the evidence recorded as well as on a cumulative assessment of the facts and circumstances, age and the fact that the Appellant has No. criminal antecedent, I feel ends of justice and equity would be better served if the sentence of R.I. for five years is reduced to the period of imprisonment the Appellant has already undergone, and order accordingly. The fine imposed by the Court below is reduced to Rs. 20,000/- and in default of payment of the fine amount, it is directed that the Appellant shall undergo further R.I. of six months. 14. With the aforesaid modification in sentence, the criminal appeal is disposed of.