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2009 DIGILAW 488 (ORI)

Jadaba Dehury @ Dehery v. State of Orissa

2009-07-07

I.MAHANTY

body2009
JUDGMENT I. MAHANTY, J. — In the present appeal, the appellant Jadaba Dehury has sought to challenge the judgment dated 7.2.1992 passed by the learned Sessions Judge, Bolangir in G.R. Case No.476 of 1991 (Sessions Case No.68 of 1991) convicting him under Section 20(a)(i) of the N.D.P.S. Act, 1985 and sentencing him to undergo R.I. for a period of one year. 2. From the facts of this case, it appears that the Offi¬cer-in-charge of the local Police Station seized two Ganja Plants from the vegetable garden of the appellant on 27.7.1991 and since the appellant had no authority to cultivate ganja, the appellant was charge-sheeted under Section 20(a)(i) of the N.D.P.S. Act, 1985. The prosecution examined three witnesses and while P.W.2 was the Revenue Inspector in whose presence the seizure was ef¬fected. P.W.3 was the Police Officer who detected the case and P.W.1 was stated to be an independent local witness to the sei¬zure. 3. The Defence plea was one of the complete denial. 4. It is stated by the learned counsel appearing for the appellant that from the facts of the present case and the evi¬dence forthcoming therefrom, it would be clear that the sample sent for chemical examination was not drawn from the articles seized from the possession of the appellant and there was ade¬quate chance of tampering the samples. In this respect, learned counsel for the appellant laid stress on the cross-examination of P.W.3 (detecting Police Officer) who admits that “no sample was kept nor he affixed any specimen seal on the plants recovered and seized from the accused”. It is also a fact that while the recov¬ery was effected on 27.7.1991, the sample was received by the Forensic Laboratory, Bhubaneswar only on 27.8.1991. Learned counsel laid stress on the aforesaid fact and submitted that the prosecution has not been able to establish by leading cogent, convincing, consistent evidence regarding the discrepancy in the sample sent for chemical analysis and that failure to affix any seal on the seized plant and the further delay in sending the samples for chemical analysis has not been explained. For conven¬ience, Section 55 of the N.D.P.S. Act is quoted hereinbelow. “Police to take charge of articles seized and delivered. For conven¬ience, Section 55 of the N.D.P.S. Act is quoted hereinbelow. “Police to take charge of articles seized and delivered. - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 5. The aforesaid provision clearly enjoins a duty upon the Officer-in-charge of the Police Station to receive and keep in safe custody, the articles seized and delivered to him. It is mandatory to affix a seal to such articles and to take samples of the articles from them and all samples so taken are required also to be sealed to the seal of the Officer-in-charge of the Police Station and non-compliance of the same is clearly an infraction of stipulation contained in Section 55 of the N.D.P.S. Act. 6. It is well settled by the series of judgments of this Court as well as Apex Court that non-compliance of the mandatory requirements of the N.D.P.S. Act render a prosecution thereunder invalid in law and in the facts of the present case clearly shows that the mandate of Section 55 of the N.D.P.S. Act has not been admittedly complied with. In the case of Kedarnath Mallik @ Kedar Mallik v. State of Orissa, 2001 CrL.L.J. 1307, this Court acquitted the appellant therein by extending the benefit of doubt in similar facts and circumstances of the present case for non-compliance of the mandatory provisions of the N.D.P.S. Act. 7. Accordingly, I am of the considered view that the appeal will succeed on account of the admitted non-compliance of Section 55 of the N.D.P.S. Act, 1985 and the order of conviction and sentence dated 7.2.1992 passed in G.R. Case No.476 of 1991 is quashed and the appeal is allowed. Appeal allowed.