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2008 DIGILAW 380 (ORI)

CHAINA DALAI v. STATE OF ORISSA

2008-05-02

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This Single Judge appeal has been referred to a larger Bench to answer the following references made by the Hon'ble Single Judge. (i) In case of seizure of ganja whether chemical analysis of the seized articles is mandatory and non-examination of such articles chemically shall render such seized articles not to be ganja; and (ii) Will launching of prosecution by the State under N.D.P.S. Act for possession of ganja or any form of cannabis (hemp) shall be a futile exercise in the event the investigation/prosecuting agency has not got the seized article chemically examined for determination as to whether such article is ganja or cannabis, as the case may be. While making the reference to a larger Bench the Hon'ble Single Judge has referred to a decision of the Apex Court in the case of Baidyanath Mishra and Anr. v. The State of Orissa, reported in Vol. 34 (1968) CLT 1 as well as other decisions, such as, the cases of Raghu ' Raghunath Barik v. State, reported in (1993) 6 OCR 527, Pilli Dilli Dora v. State of Orissa, reported in (1994) 7 OCR 674 and Subash Suna v. State, reported in (1996) 11 OCR 527. The Court has also referred to some other decisions,such as, in the cases of Subodh Sethi and Anr. v. State, reported in Vol. 73 (1992) CLT 28; Radhashyam Jena alias Mohapatra Vs. State of Orissa, ; State of Orissa Vs. Lokanath Sahu and Another, ; and Karpura Senapati Vs. State of Orissa, . 2. Appellant has been convicted u/s 20(b)(1) of the N.D.P.S. Act, 1985. Case of the prosecution is that on 19.2.1990 the Inspector of Excise while on patrolling duty on suspicion searched the Appellant at Sathipur crossing near the bus stop at about 4.30 A.M. and during such search he found a tin box and a plastic coated bag in possession of the Appellant. On verification of the material inside such containers in presence of independent witnesses, ganja to the tune of 6 kg. 750 gm. was found in the tin box and similarly 2 kg. 500 gm. of ganja was also found in the bag. Accordingly a prosecution report was submitted. On conclusion of trial the Appellant was found guilty of the charge and was convicted for the said offence. 750 gm. was found in the tin box and similarly 2 kg. 500 gm. of ganja was also found in the bag. Accordingly a prosecution report was submitted. On conclusion of trial the Appellant was found guilty of the charge and was convicted for the said offence. Out of several contentions raised by the Learned Counsel for the Appellant before the Hon'ble Single Judge, one was that the chemical examination of seized ganja was mandatory and the same having not been done, the order of conviction is liable to be set aside. In support of the contention Learned Counsel for the Appellant relied on two decision of this Court, but the Hon'ble Single Judge referring to a decisions of the Apex Court referred the aforesaid question for determination by a Larger Bench. Hence this matter is before us for answering the references. 3. Shri Sahoo, Learned Counsel appearing for the Appellant submitted that that before enactment of the N.D.P.S. Act, 1985 which came into force on 16.9.1985, possession of ganja was punishable in Orissa u/s 47(a) of the Bihar and Orissa Excise Act, 1915. Ganja was included under the heading "intoxicating drug". The term "intoxicating drug" was defined in Section 2(13) of the Bihar and Orissa Excise Act. In the said Act, ganja was not specifically defined. However, in the N.D.P.S. Act, ganja was more specifically defined under the definition "cannabis" and the definition runs as follows: Gianja, that is, the flower or fruiting tops of the cannabis plants (excluding the seeds and leaves when not accompanied by the tops) by Whether name they may be known or designated. 4. Learned Counsel appears to have referred to a decision of this Court in the case of The State Vs. Satyanarayan Mallik, where it was held that ganja having not been sent for chemical examination, it would not be established from the oral evidence that the seized ganja was non duty paid ganja. The aforesaid decision was followed in the case of Radhshyam Jena ' Mohapatra v. The State (supra). In the case of Pilli Dilli Dora v. State of Orissa (supra), it was decided by this Court that chemical examination is necessary to determine whether the seized article was ganja or not. The aforesaid decision was followed in the case of Radhshyam Jena ' Mohapatra v. The State (supra). In the case of Pilli Dilli Dora v. State of Orissa (supra), it was decided by this Court that chemical examination is necessary to determine whether the seized article was ganja or not. While deciding thus this Court relied upon a Notification of the Revenue Department dated 30.5.1989 and Standing Instruction No. 1 of 1988 issued by the Narcotic Control Bureau as well as the Standing order of the Revenue Department dated 13.6.1989. Such decision following the aforesaid Notification/Standing Order was referred to in the case of Subash Suna v. State (supra). It was contended by the Learned Counsel Sri Sahoo appearing for the Appellant that so far as punishment prescribed under the N.D.P.S. Act is concerned, it is more stringent than that of the Bihar and Orissa Excise Act. Taking into account objects and reasons for such enactment, the Apex Court in the case of State of Punjab v. Balbir Singh and Ors., reported in (1994) 7 OCR (SC) 283 held some of the provisions of the. N.D.P.S. Act to be mandatory. Relying upon the Standing Instructions issued by the Narcotic Control Bureau, it was contended by the Learned Counsel for the Appellant that mere visual examination of most of the Narcotic Drugs and Psychotropic Substances cannot exclusively prove the accusation and it is required to be proved by chemical analyst. It was further contended by the Learned Counsel that said instruction specifies the quantity of ganja that is required for examination as well as the manner in which samples are to be collected. It was also contended that the Standing Orders in the year 1989 give a clear picture that the Legislature while issuing such instructions have kept in mind the nature of punishment prescribed in the N.D.P.S. Act. Learned Counsel appearing for the Appellant in course of his argument too us to the Standing Orders in support of his argument. 5. Both the references are inter-linked and the question that is required to be answered in this reference is as to whether chemical examination of the seized articles under the N.D.P.S. Act is mandatory or not and as to whether non-examination of such articles chemically shall render such seized articles not to be termed as ganja. 5. Both the references are inter-linked and the question that is required to be answered in this reference is as to whether chemical examination of the seized articles under the N.D.P.S. Act is mandatory or not and as to whether non-examination of such articles chemically shall render such seized articles not to be termed as ganja. In case of cannabis also, the question raised for answering in the reference is same. Admittedly, there is no provision in the N.D.P.S. Act or the Rule s made there under making chemical examination of seized Narcotic Drugs mandatory. Reliance was placed by the Learned Counsel for the Appellant on the Standing Instruction No. 1/88 issued by the Narcotic Control Bureau, New Delhi. The relevant portion of the said standing instructions are quoted below. All illicit narcotic drugs or psychotropic substances recovered from a person, place, conveyance etc. are material evidence as they are liable to confiscation. Further, they constitute primary evidence for any act, omission or commission on the part of a person rendering him liable for punishment under Chapter IV of the N.D.P.S. Act, 1985. Most of the narcotic drugs and psychotropic substances cannot be conclusively proved to be such drugs or substances merely by visual examination in the Trial Court and they require to be proved by chemical analysis to be conducted by chemists authorized u/s 293 of Code of Criminal Procedure., 1973. xxx. Quantity of different drugs required in the sample: - The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The drugs in the packages/ containers should be well mixed to make it homogenous and representative before the same in duplicate is drawn. Laboratories to which samples may be sent: - The seizing officers of the Central Government Departments viz. Customs, Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, D.R.I., etc. should dispatch samples of the seized drugs ton one of the Laboratories of the Central Revenues Control Laboratory nearest in their offices depending upon the availability of test facilities. Xxx" 6. Laboratories to which samples may be sent: - The seizing officers of the Central Government Departments viz. Customs, Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, D.R.I., etc. should dispatch samples of the seized drugs ton one of the Laboratories of the Central Revenues Control Laboratory nearest in their offices depending upon the availability of test facilities. Xxx" 6. Relying on the aforesaid standing instructions, it was contended by the Learned Counsel for the Appellant that this Court having held that the chemical examination of the seized drug is necessary, the provision is mandatory and failure to comply with the same shall cause prejudice to the accused. 7. Learned Counsel for the Appellant could not cite any provision in the N.D.P.S. Act authorizing Narcotic Control Bureau for issuing such standing orders. Section 76 of the N.D.P.S. Act empowers the Central Government to make Rules and similarly Section 78 of the Act empowers the State Government to make Rules. Section 77 of the Act provides that every rule made under this Act by the Central Government and every notification or order issued under Clause (vii-a), Clause (xi), Clause (xxiii-a) of Section 2, Section 3, Section 7-A, Section 9-A and Clause (a) of Section 27 shall be laid, as soon as may be, after it is made or issued, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised to one session or in two or more successive Sessions, and if, before the expiry of the session immediately following the session or the successive Sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made or issued, the rule or the notification shall thereafter have effect only in such modified form. The standing order relied upon by the Learned Counsel, for the Appellant not being a Rule, it may come under heading "order" as mentioned in Section 77. Even if it is construed to be an order u/s 77 of the Act so long as it has not been approved by Both Houses of Parliament, it cannot take effect. There is nothing on record to show that the Standing Instruction No. 1/88 had been approved by the Parliament in both the Houses. Even if it is construed to be an order u/s 77 of the Act so long as it has not been approved by Both Houses of Parliament, it cannot take effect. There is nothing on record to show that the Standing Instruction No. 1/88 had been approved by the Parliament in both the Houses. Therefore, the standing instruction cannot have a statutory force and can only be treated as a guideline. It may not be necessary for this Court to refer to all the decisions cited at the Bar, considering the fact that the very same question arose for consideration in the case of Khet Singh Vs. Union of India (UOI). The standing instructions were taken into consideration by the Apex Court and in para-10 of the judgment the Apex Court held as follows: The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the N.D.P.S. Act even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a change recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. 8. As is evident from the aforesaid decision, such standing instructions are intended to guide the officers and to see that fair procedure is adopted by the officer in-charge of the investigation. In view of such observation of the Apex Court in the aforesaid Judgment, we are unable to accept the contention of the Learned Counsel for the Appellant that the such standing instruction is to be treated as mandatory. It is true that such standing instructions are to be treated as guidelines for the officers investigating into a case under the Act in order to have a fair trial and it is desirable to follow the guidelines as far as practicable, but at the same time non-observation of the guidelines will not be fatal to the prosecution. We are, therefore, of the view that though in two of the decisions, such as, Pilli Dilli Dora v. State of Orissa, reported in (1994) 7 OCR 674 and Subash Suna v. State, reported in (1996) 11 OCR 527 this Court has acquitted the accused persons therein on the basis of the standing instructions quoted above, such standing instructions have no statutory force and cannot be treated as mandatory. We, however, observe that it is desirable for the investigating officer to follow the standing instructions for a fair trial as far as practicable, but non-compliance of the same will not be fatal to the prosecution. This answers both the references made by the Hon'ble Single Judge. 9. The matter may be placed before the Hon'ble Single Judge for decision on merit.