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2005 DIGILAW 206 (ORI)

State of Orissa v. Kabi Sankar Malu

2005-03-23

P.K.TRIPATHY

body2005
JUDGMENT This Government Appeal has been registered to scrutinize and find out the correctness of the order of acquittal on benefit of doubt granted by the learned Fist Additional Sessions Judge, Puri to the accused/respondent in S.T. Case No.52/266 of 1992 arising out of G.R. Case No.70 of 1992 of the Court of S.D.J.M., Puri relating to offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the N.D.P.S. Act’) on the allegation of the accused being found in possession of 306 Milligrams of heroin in 9 packets, which was the gross weight. 2. The case of the prosecution is that on 19.2.1992 at about 1.30 P.M. Shri Kalakar Sha, the then in-charge of the Temple Out Post, Puri Town on getting reliable information about the accused selling heroin inside the Temple of Lord Jagannath at Puri, he made a Station Diary entry and conducted raid. Inside the temple premises, he chased and caught hold of accused/re¬spondent who on the sight of the said Police Officer wanted to escape. The accused was searched by the said Kalakar Sha (P.W.No.5) in presence of witnesses who have been examined as P.W. Nos.1, 2 and 3. Amongst them P.Ws.1 and 2 are two shop keepers inside the Temple premises and P.W. No.3 is a Police Constable. After search and recovery of the Narcotics in paper packets service of a Goldsmith, named K.P. Sarma (P.W. No.4) was requisitioned. He came and made weighment of the recovered pack¬ets and thereafter P.W. No.5 seized that and a cash of Rs.50/- in presence of P.Ws.1, 2 and 3. The O.I.C. of the Town P.S. then arrived at the Temple Out Post and he took charge of the investi¬gation alongwith the accused and the seized goods in sealed packets. The seized narcotics were sent for chemical analysis and a report (Ext.5) was obtained to the effect that such article was heroin. Accordingly the accused was charge sheeted and there¬after committed to face the trial in the manner already indicat¬ed. 3. In course of trial prosecution relied on the evidence of the aforesaid 6 witnesses and the seizure list etc. Exts. 1 to 5 and the seized articles M.Os. 1 to 5. 4. Accordingly the accused was charge sheeted and there¬after committed to face the trial in the manner already indicat¬ed. 3. In course of trial prosecution relied on the evidence of the aforesaid 6 witnesses and the seizure list etc. Exts. 1 to 5 and the seized articles M.Os. 1 to 5. 4. Accused took plea of complete denial and stated that a false case has been framed against him at the behest of P.W. Nos.1 and 2 who were his erstwhile master because he was working in their shop. No defence evidence was adduced by the accused. 5. Trial Court accepted the Ext.5 and held that the arti¬cles seized was Brown sugar/Heroin. On scrutiny of the evidence of P.W. Nos.1 and 5, he however found that prosecution has not laid clinching and trustworthy evidence that the article was seized from the possession of the accused/respondent. In that respect, trial Court took note of admission of P.W. No.1 that ac¬cused was under his employment and subsequently he was driven out. Trial Court also took note of the contradictions in relation to the place where accused was caught and the place where he was searched and the incidents thereof. 6. In that respect learned Addl.Sessions Judge stated that from the evidence on record two places have been shown as place of search, one near the Kasi Biswanath Temple at Baisipahachha inside the temple and the other is the Office of the Temple Out Post. Similarly, he found contradictions relating to presence of P.W. No.6 at the time of search inasmuch as P.W. No.5 stated that he searched the accused in presence of P.W. No.6 and P.W. No.6 stated that he arrived at the Out Post only after the search was completed and the articles were sealed. 7. Learned Standing Counsel argues that the aforesaid contradictions are not material or crucial so as to throw away acceptable and consistent evidence of the independent witnesses regarding the fact that accused was caught and searched and narcotic articles were recovered from him. This Court does not find any substance in that argument in as much as the offence in Section 21 of the N.D.P.S. Act is punishable with a minimum sen¬tence of imprisonment for 10 years and a fine of Rs.1,00.000/- (rupees one lakh). Therefore, undoubtedly, the offence is serious and the punishment prescribed is severe. This Court does not find any substance in that argument in as much as the offence in Section 21 of the N.D.P.S. Act is punishable with a minimum sen¬tence of imprisonment for 10 years and a fine of Rs.1,00.000/- (rupees one lakh). Therefore, undoubtedly, the offence is serious and the punishment prescribed is severe. Once that be so, the provisions in N.D.P.S. Act in Chapter V are clear enough to safeguard against a trap case by providing the manner in which search and seizure is to be made and to ensure such search to be made, as far as practicable, in presence of a Gazetted Officer or a Magistrate. In this case according to P.W. No.5 after receipt of the information he intimated the fact over phone to P.W.No.6, who happens to be a Gazetted Officer and also D.S.P. another Gazetted Officer before he proceeded to conduct the raid. If that be so, after capturing the accused he should have waited for arrival of P.W. No.6 and/or the D.S.P. and should not have con¬ducted search and seizure himself. It is, of course, the provision of statutory law that after accused volunteers to be searched by a Police Officer in the absence of a Gazetted Officer or Magis¬trate, then such Officer has the jurisdiction and authority to conduct such a search. In this case, in that respect, evidence of P.W. No.1 reads consistent with evidence of P.W. No.5 that ac¬cused did not insist for his search in presence of a Gazetted Officer or Magistrate. But in that respect, in their evidence, P.W. Nos.2 and 3 who are said to be eye-witnesses to the search and seizure do not speak anything that accused volunteered to be searched in the absence of a Gazetted Officer or Magistrate. Above all, according to P.W. No.5, when P.W. No.6 was present at the time of search and seizure, there was no necessity to ask for the option of the accused for his search in presence of a Gazet¬ted Officer. 8. Therefore, from all the aforesaid lacunas in the prose¬cution evidence this Court finds that the trial Court has taken note of the same correctly so as to grant benefit of doubt to the accused. Once that approach of the Trial Court is found to be reasonable and not illegal, it is not proper to interfere with the order of acquittal. Therefore, from all the aforesaid lacunas in the prose¬cution evidence this Court finds that the trial Court has taken note of the same correctly so as to grant benefit of doubt to the accused. Once that approach of the Trial Court is found to be reasonable and not illegal, it is not proper to interfere with the order of acquittal. Taking that view of the matter, the Gov¬ernment Appeal is dismissed. 9. The accused, who was directed to remain on bail during the pendency of this Government Appeal, is discharged from the bail bond. Appeal dismissed.