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Orissa High Court · body

2007 DIGILAW 12 (ORI)

Sambhulal Tibriwal v. State of Orissa

2007-01-05

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : The appellant has challenged the order passed by learned Additional Sessions Judge-cum-Judge, Special Court Jharsuguda in T.R. Case No.36 of 2000 dated 5.5.2005 con¬victing him under Section 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘N.D.P.S. Act’) and sentencing him to undergo R.I. for 15 years and to pay fine of Rs.1,00,000/- in default to undergo R.I. for a further period of five years. 2. Prosecution case is that on receipt of reliable infor¬mation, the O.I.C., Jharsuguda Police Station on 27.07.2000 conducted search in the betel shop of the appellant at Marwaripa¬da in presence of Magistrate and witnesses and recovered several paper packets containing Ganja in total amounting to Kg 2.610 gms along with 51 nos of Ganja-Smoking pipes (Chillum). On the same day the O.I.C. also conducted search of the house of the appellant in presence of the witnesses and Magistrate and recovered one tin box, one gunny bag, some polythene bags containing more than Kgs 25.200 gms of Ganja. It is alleged that the appellant was illeg¬ally trading ganja and more than 25 kgs of contraband ganjas were recovered from his conscious possession. 3. The plea of the appellant was one of complete denial. 4. To bring home the charge against the appellant prosecu¬tion examined seven witnesses and exhibited documents, which were marked as Exts.1 to 12. The appellant did not produce any witness or document. On consideration of the evidence on record learned Special Judge came to the conclusion that the appellant was treading contraband Ganja and was in conscious possession of Ganja amounting to commercial quantity. He accordingly, convicted and sentenced the appellant as indicated above. 5. Miss Deepali Mohapatra, learned counsel for the appellant challenged the correctness of the impugned judgment basically on the ground that the charge framed against the appellant was defective, that there was lack of credible evidence to establish the conscious possession of the appellant over the seized Ganja, that mandatory procedures of Section 42(2) and Section 50 of the N.D.P.S. Act was not followed by the I.O. On the issue of charge Miss. Mohapatra specifically submitted that the time and the provision of law mentioned in the charge are incorrect and as such the charge is defective and that once the charge is defective,the order of conviction is liable to be set aside. Mohapatra specifically submitted that the time and the provision of law mentioned in the charge are incorrect and as such the charge is defective and that once the charge is defective,the order of conviction is liable to be set aside. In support of this contention, she cited the Cases of Salim Khan v. The State of Orissa, (2000) 19 OCR-48 and Mayadhar Swain and another v. State of Orissa, 91 (2001) C.L.T. 283 wher¬ein it has been remarked that if the charge is defective and such defect has occasioned in failure of justice then conviction is liable to be set aside. In these cases charge had been simply framed under Section 20(b) without specifying whether it was an offence under Sub-clause (i) or Sub-clause (ii) of Clause (b) of Section 20 of the N.D.P.S. Sub-Clause (i) of clause (b) of Sec¬tion 20 prescribes punishment for cultivation of cannabis, wher¬eas Sub-clause (ii) provides punishment for production, manufac¬ture, possession, sells, purchase, transports, imports and export etc. relating to small quantity and lesser than commercial quant¬ity and commercial quantity of cannabis. When the charge specifi¬cally indicated that the appellant was in possession of the contraband Ganja of specific quantities in different places, the charge cannot be said to be defective to the extent of causing prejudiced to the appellant. As has been said in the Case of Durgo Bai & another v. State of Punjab, 2004 (6) Supreme 93 formal defect in charge which has not caused any prejudice to the accused is not fatal to the prosecution case and on the ground of such formal defect the conviction can not be set aside. When there was specific allegation in the charge, as well as in the questions put to the accused at the time of recording of his statement about his possession of particular quantity of Ganja, the appellant cannot claim prejudice on the ground of ambiguity in the charge. That apart the appellant never raised objection before the trial Court about the defect in charge. So formal defect, if any, in the charge about time or Section of law has not occasioned in failure of justice and on this ground the order of conviction and sentence cannot be set aside. 6. That apart the appellant never raised objection before the trial Court about the defect in charge. So formal defect, if any, in the charge about time or Section of law has not occasioned in failure of justice and on this ground the order of conviction and sentence cannot be set aside. 6. The next allegation is that when the independent wit¬nesses did not speak about recovery of Ganja and the exclusive ownership and possession of the appellant over the residential house in question was not established through any document or reliable evidence, learned trial Court committed error in con¬cluding that the Ganja were recovered from the exclusive posses¬sion of the appellant. 7. The prosecution examined seven witnesses. Out of them P.Ws.2 and 4 are local witnesses. These witnesses did not speak about the seizure of Ganja from the possession of the appellant, but other witnesses, namely, P.Ws. 3, 6 & 7 who are police offi¬cers and P.W.5, who is the Executive Magistrate clearly spoke about the recovery of Ganja from the shop and residence of the appellant. It is clearly available in the evidence of P.Ws. 3, 6 & 7 that in the presence of the Magistrate P.W.5 the shop of the appellant was searched after observing due formalities and a total of 249 paper packets containing Ganja were recovered and on weighment such Ganja amounted to 2 Kgs. 610 gms. These witnesses also stated that besides the packets containing Ganja, 51 number of Ganja-smoking pipes (Chillums) were also recovered from the shop of the appellant. The Executive Magistrate-P.W.5 thoroughly supported the evidence of above named witnesses. There is abso¬lutely nothing on record to show that these Police officers or the Executive Magistrate had animosity or hostile feeling with the appellant. When Police officers and Magistrate who are public functionaries and not in any way hostile to the appellant spoke about the seizure of Ganja and Chillums, there was no reason to disbelieve their version even though P.Ws. 2 and 4 remained silent about the seizure of the Ganja and Chilliums. It is to be noted that P.Ws.2 and 4 are the local persons. Such persons may naturally hesitate to speak against a neigbour or a known person. That apart, P.W.2 admitted in his evidence that he pointed out the shop of the appellant to the raiding party. 2 and 4 remained silent about the seizure of the Ganja and Chilliums. It is to be noted that P.Ws.2 and 4 are the local persons. Such persons may naturally hesitate to speak against a neigbour or a known person. That apart, P.W.2 admitted in his evidence that he pointed out the shop of the appellant to the raiding party. The appellant also did not take the plea that the shop does not belong to him. Such being the evidence learned trial Court had every justifica¬tion of believing that the appellant was in conscious possession of the Ganja packets and Chillums in his shop. 8. P.Ws. 3, 5, 6 and 7 also clearly stated that the house of the appellant was also searched after observing due formali¬ties and a gunny bag containing 7 kgs of Ganja, a tin box con¬taining 15 kgs 750 gms of Ganja and polythene bag containing 1 kg 800 gms of Ganja, two weighing scales and 11 weights were recov¬ered. When the Executive Magistrate and responsible Police Offi¬cers who have no animosity with the appellant spoke about the recovery of Ganja from the house and when the seizure list Ext.3/1 and the M.Os are there to support their version, there is no scope to entertain doubt about the recovery of the above said quantity of Ganja, wieghing scales, weights etc. from the house in question. The allegation of the appellant is that his owner¬ship and exclusive possession over the house was never estab¬lished and therefore he cannot be made liable for conscious and exclusive possession of the seized Ganja, weighing scales etc. According to him, evidence is there to show several other persons were also living in that house and there is no specific evidence to show that one of those persons had not kept the Ganjas in the house. In support of the stand reliance was placed on the Cases of Bhaskar Kumar Karan alias Bhaskar Chandra Karana v. State, (2001) 20 OCR-113 and Krushna Dora v. State, (1994) 7 OCR 590 wherein it was said that it is obligatory on the part of the prosecution to establish by reliable evidence that accused was in exclusive and conscious possession on the contraband articles and if such evidence is wanting then the accused would be entitled to benefit of doubt and acquittal. In the case of Jadumani Sahu v. State, 1997 (3) Crimes 486 also identical view was taken.In that case some opium was seized from the house which stood jointly recorded in the name of several persons and because prosecution could not adduce any specific evidence about actual possession of the house in question by the accused, the accused was given bene¬fit of doubt. Similar view was also taken in the Cases of Mayad¬har Swain (supra) and Raju Qurasi v. State of Orissa, 91 (2001) C.L.T. 543. In the present case P.W.5 in paragraph-6 of his evidence stated that no document or article was seized to estab¬lish that the room wherefrom the Ganja were seized was under the possession of the accused. According to him, four adult persons were inside the house when they reached the house to conduct the search and the police officer enquired the names and relationship of those persons with the accused. P.W.5 is, however, unable to say if those persons are related to the accused. P.W.5 is, howe¬ver, unable to say if those persons are related to the accused. P.W.6 in his cross-examination also stated that he cannot say the name of the owner of the house which was searched and although the house is situated in Municipal area he did not verify the municipal record to ascertain the name of the owner or person in possession of the house. P.W.7 who conducted the investigation and submitted the charge-sheet also candidly admitted in para¬graph-4 of his statement that he did not seized any document to ascertain the ownership of the house. He stated that he sent requisition to the Tahasildar, Executive Officer of the Munici¬pality and the Executive Officer, WESCO, Jharsuguda to disclose the ownership of the house, but did not receive any reply. The local witnesses examined by the prosecution never said that the house which was searched belongs to the appellant or that it was in his exclusive possession. From the evidence of above named P.Ws. it becomes apparent that no document or evidence was pro¬duced by the prosecution to show the ownership or exclusive possession of the appellant over the house in question. Rather their evidence show that some adult persons were also staying in that house. From the evidence of above named P.Ws. it becomes apparent that no document or evidence was pro¬duced by the prosecution to show the ownership or exclusive possession of the appellant over the house in question. Rather their evidence show that some adult persons were also staying in that house. Who were those persons and whether they had kept the Ganja in that house and whether they had any connection with the Ganja which was recovered from the house was neither investigated nor any evidence excluding their involvement was produced. Such being the situation, it cannot be said that the accused was the owner or person in exclusive possession of the house in ques¬tion. Once the exclusive ownership or possession of the accused over the house is not established, the contraband article cannot be said to be in the conscious and exclusive possession of the accused. Learned trial Court was therefore in error holding that the Ganjas seized from the residential house was in exclusive and conscious possession of the appellant. 9. Learned Counsel for the appellant vehemently argued that the mandates of Section 42(2) was not compiled and for that reason the appellant is entitled to acquittal. In supports he relied on the Cases of Shyamasundar Palei v. State of Orissa, (2003) 25 OCR 638 and State of West Bengal and others v. Babu Chakraborty, 2005(I) OLR (SC) 30. In the former case the I.O. did not state as to whether the copy of the Station Diary Entry was sent within 72 hours of receiving the information or not and the intimation given to the S.P. was also not produced in the Court for which the Court felt that the provision of Section 42(1) was violated.In the West Bengal Case raid was conducted on obtaining secret information, but the information was not taken down in writing and search was conducted after sunset and before sunrise without complying with the provision of Section 42(1) and (2). Further more independent witnesses to the search were not sum¬moned or examined. Further more independent witnesses to the search were not sum¬moned or examined. In the present case the O.I.C., Jharsuguda P.S. on receiving reliable information that the accused has stored huge quantity of Ganja in his betel shop at Marwaripara, Jharsuguda made S.D. entry about the information, sent requisi¬tion to the A.D.M., Jharsuguda to depute a Magistrate to remain present at the time of search and seizure and also intimated about the information in writing to his superior authority through a Special Messenger. The concerned O.I.C. as P.W.6 clear¬ly stated about making the S.D. entry and sending information to the S.P. through a Lady constable P.W.1. The lady constable P.W.1 also clearly stated that on being commanded she delivered the letter of intimation in the office of the S.P., Jharsuguda and also in the office of the A.D.M., Jharsuguda on dated 27.07.2000 and also proved the carbon copy of the letter addressed to the S.P. as Ext.1. It was submitted that P.W.1 is not able to give specific time of delivery of the letter and the number of the command certificate and for that reason the sending of the inti¬mation to the S.P., Jharsuguda should be disbelieved. A witness cannot be expected to recollect the exact time of leaving police station, exact time of handing over the letter, the serial number of command certificate from memory after lapse of years.When carbon copy of the intimation is available, when the O.I.C. and the lady constable say that the intimation was given to the S.P. and when the S.D. entry is also available, there is hardly any scope to doubt about the sending of intimation to the superior authority within the stipulated time. There was thus no violation of mandate of Section 42(1) of the N.D.P.S. Act. 10. It was further contended by the learned counsel for the appellant that the factum of safe custody of the seized article and the seal used, having not been established the appellant should have been given benefit of doubt. In this regard, it would be sufficient to indicate that although Malkhana Registrar was not produced,there was statement of witnesses that the seized articles were kept in Malkhana under lock and key and that the I.O. had handed over the seal to the witness. In this regard, it would be sufficient to indicate that although Malkhana Registrar was not produced,there was statement of witnesses that the seized articles were kept in Malkhana under lock and key and that the I.O. had handed over the seal to the witness. Moreover, the evidence of P.Ws.3, 6 and 7 would show that basing on the requi¬sition of P.W.6 the brass seal of P.W.7 was used for sealing the seized articles and samples. The Malkhana Registration number noted in the sample packets were also indicated by P.W.7, which shows that the seized articles and samples were in the Malkhana. Besides, the appellant while cross-examining P.W.7 never chal¬lenged the proper custody of the seized articles, samples and seal. In that situation, there is no reason to say that the seized articles and samples were not kept in proper custody. 11. Miss Mohapatra also submitted that the provision of Section 50 of the N.D.P.S. Act were not complied with, inasmuch as, there is no clear evidence that personal search of the wit¬nesses was taken before the search of the shop and house of the appellant. P.W.6 made it clear in his evidence that requisition was sent for the Executive Magistrate and in presence of the Executive Magistrate, Police Officers and local witnesses the accused was told that his shop would be searched and the accused expressed his intention that the search be conducted in presence of the Magistrate, where after the personal search of the wit¬nesses, police officers were made and then the cabin was searched. He also stated that before searching the house in question, the police officers and witnesses gave their personal search in presence of the Magistrate.. Such evidence has not been discredited. In that situation, it cannot be said that the man¬date of Section 50 of the Act was not complied with. Moreover, as has been said in the case of P. Venkataswarlu v. State of A.P. and others, (2003) 26 OCR (SC) 186, personal search of witness is not essential when the search relates to vehicle or premises. Only when personal search of the accused is involved or a very small quantity of contraband article is seized, personal search of witness and raiding officers become essential. So in the present case is not hit for non-compliance of provision of Sec¬tion 50 of the Act. 12. Only when personal search of the accused is involved or a very small quantity of contraband article is seized, personal search of witness and raiding officers become essential. So in the present case is not hit for non-compliance of provision of Sec¬tion 50 of the Act. 12. On reassessment of the entire evidence and the above noted circumstances, it is seen that the prosecution has failed to prove that the Ganja stock recovered from the residential house was in the conscious and exclusive possession of the appel¬lant. But it has successfully proved that Ganja and the smoking pipes (Chillum) seized from the shop of the appellant was there in the conscious and exclusive possession of the appellant. 13. Section 20(b) of N.D.P.S. Act provides distinct and separate punishment for possession or sale of different quantity of contraband Ganja. The Section reads as follows : “20. punishment for contravention in relation to cannabis plant and cannabis-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence grant¬ed thereunder- (a) xx xx xx xx (b) produces, manufactures, posssess, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable- (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. (C) And involves commercial quantity, with rigorous, imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” Small quantity and commercial quantity of different Narcotic and Psy¬chotropic substances has been notified by the Revenue Department vide notification S.O. No.527(E) dated 16.7.1996. According to this notification Ganja upto 1 Kg. is small quantity and 20 Kg and above is commercial quantity. 14. In the present case, prosecution has established that the appellant was in conscious possession of 2.610 grams of Ganja and Ganja smoking pipes and was selling Ganja packets in his shop. The quantity of Ganja seized from the shop of the appellant is more than small quantity, but less than commercial quantity. Therefore, he is liable for punishment as per the provisions of Section 20(b)(ii)(B) of the N.D.P.S. Act. That being so, the conviction of the appellant is modified to one under Section 20(b)(ii)(B) of the N.D.P.S. Act and considering the quantity of contraband articles seized and the socio economic standing of the appellant, the sentence is modified to rigorous imprisonment for five years with a fine of Rs.25,000/-. In default of payment of fine he shall undergo rigorous imprisonment for a further period of one year. The period of detention as U.T.P., if any, of the appellant be set off against the substantive sentence awarded. 15. In the result, the appeal is partly allowed. Appeal partly allowed.