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2011 DIGILAW 172 (ORI)

Bishnu Charan Singh v. State of Orissa

2011-03-18

S.K.MISHRA

body2011
JUDGMENT S.K. MISHRA, J. — The appellant assails his conviction for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred as the ‘N.D.P.S. Act’ in G.R. Case No.702 of 2001 of the Court of the Additional Sessions Judge-cum-Special Judge, Jajpur. 2.The appellant was prosecuted for having allegedly committed offence under Sections 21 and 22 of the N.D.P.S. Act on the allegation that on 04.08.2001 at about 12.30 P.M. one Baidhar Sahu, a known drug addict, was produced before the S.I. of Police Suprasanna Kumar Mallik of Chhatia Beat House, while he was moving in a suspicious manner. In course of interrogation, the said Baidhar Sahu informed that he used to purchase brown sugar from the appellant. Getting this information, the police officer made a station diary entry informing the I.I.C., Badachana P.S. about the same, sent requisition for deputing an Executive Magistrate to be present at the time of search of the house of the appellant. The Magistrate arrived at Chhatia Beat house at 4.00 P.M. Then, the police staff headed by S.I. of Police S.K. Mallik along with the Executive Magistrate proceeded to the house of the appellant after picking up of the independent witnesses on the way. On reaching the house of the appellant, the raiding party was informed by the wife that the appellant was absent in his house. The S.I. of Police then intimated her about his intention to search the house and the ground of such search. On being questioned, she desired that the search be taken up in presence of a Magistrate. Thereafter, the Magistrate was introduced to her. Thereafter, the police team conducted the search after following the procedure of such search. During such search, the Police Officer found a heap of papers and damaged casket in the south-east corner of the bed room of the appellant. From underneath the heap two packets containing brown sugar were recovered. A goldsmith was summoned to that spot, who took weighment of the contents of the two packets which came to 130 grams and 257 grams. At the time of weighment, the appellant arrived at the house being brought by the Grama Rakhi. After informing him about the house search, four samples powder of 5 grams each from each of the two recovered packets were drawn by the goldsmith and packed separately in eight packets. At the time of weighment, the appellant arrived at the house being brought by the Grama Rakhi. After informing him about the house search, four samples powder of 5 grams each from each of the two recovered packets were drawn by the goldsmith and packed separately in eight packets. The remaining portion of the recovered powder was packed separately. All these packets were sealed by using brass seal in presence, of the Executive Magistrate and the witnesses. As the appellant could not produce any authority for possession or doing business of narcotic drugs, the police officer seized all the packets in presence of the Magistrate and the witnesses, prepared the seizure list, arrested the appellant and brought him to the Police Station. At the Police Station, the Police Officer Mallik drew up a plain paper F.I.R. and presented the same before the I.I.C., Barachana Police Station, he handed over the seized packets to the I.I.C., who resealed the packets and kept them in the police Malkhana under safe custody. The I.I.C. directed the S.I. of Police Md. Sahed Hossain to take up investigation. 3.In course of investigation, the Police Officer Md. Sahed Hossain examined the informant and other witnesses, seized the relevant documents and forwarded the information to the Superintendent of Police on 05.08.2001. He also sent an Amin for demarcation of the land on which house of the appellant stands. On his prayer on 06.08.2001, the seized sample packets were sent to the S.F.S.L., Rasulgarh, Bhubaneswar and C.S.F.L., Kolkata for chemical examination. Finally upon completion of investigation, charge-sheet was submitted against the appellant under Sections 21 and 22 of the N.D.P.S. Act. The defence took the plea of denial and false implication. 4.Prosecution, in order to prove its case, examined ten witnesses on its behalf. P.W.9 S.K. Mallik is the officer, who recovered the contraband articles from the house of the appellant and also and also submitted the F.I.R. P.W.1, Trilochan Sendha and P.W.3, Parsuram Naik a goldsmith, who weighed the contraband articles, are two witnesses to the search and seizure. P.W.2 is a co-villager of the appellant and an independent witness. P.W.4 Chhita Ranjan Mohanty happens to be the Executive Magistrate, who was present at the time of search and seizure. P.W.2 is a co-villager of the appellant and an independent witness. P.W.4 Chhita Ranjan Mohanty happens to be the Executive Magistrate, who was present at the time of search and seizure. P.W.10 Arun Kumar Pradhan is the Grama Rakhi, who brought the alleged drug addict to the Outpost and also later on produced the appellant at his house during search. P.W.6 Satyanarayan Senapati and P.W.7 Gunamani Nayak are police personnel who are brought along with the raiding party. P.W.5 Rasananda Kandi is the Revenue Officer, who was present at the time of demarcation of the house of the accused by Amin on police requisition. P.W.8 Md. Zahed Hossain is the Investigating Officer in this case. In addition, the prosecution relied upon 33 documents as exhibits and 3 M.Os. On the other hand, the defence neither examined any witness on its behalf nor led any document into evidence. 5.On the basis of the materials placed before the Court, the learned Special Judge came to the conclusion that the prosecution has established its case beyond all reasonable doubt as far as its offence under Section 21 of the N.D.P.S. Act is concerned, however, he found that the offence under Section 22 of the N.D.P.S. Act is not attracted. He acquitted the appellant from the charge under Section 22 of the N.D.P.S. Act and convicted him under Section 21 of the said Act and sentenced him to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for two years. Such judgment of conviction and order of sentence have been assailed in this appeal. 6.Learned counsel for the appellant assailing the finding recorded by the learned Special Judge has submitted that Baidhar Sahu, who alleged to be a drug addict, has not been examined in this case nor wife of the appellant has not been examined. It is further submitted that the appellant was not present in the house where the search was conducted and later on he was brought to that place. Hence, no presumption that the house belong to him can be raised in this case. It is further submitted that the appellant was not present in the house where the search was conducted and later on he was brought to that place. Hence, no presumption that the house belong to him can be raised in this case. It is further submitted that the house from where the contraband articles were allegedly seized, does not stand in the name of the present appellant and, therefore, the prosecution has failed to prove that any contraband articles were seized from the exclusive and conscious possession of the appellant. Furthermore, it is contended very emphatically that as there was a conflict in the chemical examination reports of the Central Forensic Science Laboratory, Kolkata and State Forensic Science Laboratory, Rasulgarh, Bhubaneswar, benefit of doubt should have been extended in favour of the appellant. Advancing such argument, learned counsel for the appellant, therefore, prayed that the appeal should be allowed and the conviction of the appellant should be set aside. Learned Addl. Government Advocate, on the other hand, supported the finings recorded by the learned Special Judge and alleged that the appeal be dismissed. 7.It is settled principle of law that the prosecution in order to succeed must establish the case it alleges. The burden is heavy on the prosecution to prove its case and in case of any reasonable doubt, the same shall enure to the benefit of the accused. It is also settled principle that an accused is presumed to be innocent till the contrary is proved by cogent and reliable evidence which proves his guilt beyond reasonable doubt. In this context it is to be seen whether in this particular case, the appellant was found to be in exclusive and conscious possession of contraband article i.e. Diacetyl morphine (heroin). 8.In this case, this Court is of the opinion that it is not necessary to examine other aspects of the case in view of the conflicting opinion in two chemical examination reports. It is borne out from the records that P.W.8 on 6.8.2001 prayed before the Court to forward the sample packets of S.F.S.L., Bhubaneswar and also to C.S.F.L., Kolkata. He has proved the forwarding report Exts. 30 and 31. Ext 32 is the chemical examination report of S.F.S.L., Bhubaneswar. Ext. 12 is the report of the Junior Scientific Officer of the C.F.S.L., Kolkata. It is borne out from Ext. He has proved the forwarding report Exts. 30 and 31. Ext 32 is the chemical examination report of S.F.S.L., Bhubaneswar. Ext. 12 is the report of the Junior Scientific Officer of the C.F.S.L., Kolkata. It is borne out from Ext. 32 that on chemical examination at S.F.S.L., Bhubaneswar, Diacetyl morphine (heroin) could be detected in all the fours sample packets. The report of the C.F.S.L. however shows that Monoacetyl-Morphine and Acetaminophen (paracetamol) were detected in two sample packets and no drugs could be detected in other sample packets. Thus, there is contradiction in the two scientific reports. Learned Special Judge having considered both the reports has come to the conclusion that the report of the S.F.S.L., Bhubaneswar should be preferred as the same has been signed by the Director, Asst. Director and the Scientific Officer, whereas the report of the C.F.S.L. has been prepared by a Junior Scientific Officer and, therefore, is of less probative value. Having given anxious thought to the problem at hand, this Court comes to the conclusion that the whole approach adopted by the learned Special Judge is erroneous. Moreover, it is not understood why the Investigating Officer sent the sample packets to two separate laboratories on the same day. The accused can only be convicted for the offence which he alleged to have committed in case of unimpeachable proof of his conscious and exclusive possession of the contraband articles. Such prove inherently have two components. Firstly, it must be proved by the prosecution that such contraband articles were seized from his exclusive and conscious possession and secondly, the substance which have been seized from his possession were narcotic drugs or psychotropic substance as alleged by the prosecution. In this case, the prosecution has tried to establish that the substances were heroin by relying upon two exhibits i.e. Ext. 12 and 32. Ext. 12 shows that Monoacetyl-Morphine and Acetaminophen (paracetamol) were detected in the contents of two packets of the exhibits marked as 503/2001/3 and 503/2001/4. No narcotic drugs were detected in the contents of the other two packets. However, the report of the State Forensic Science Laboratory shows that ‘heroin’ could be detected in all the packets. This raises a reasonable doubt regarding the nature and character of the substance recovered from the alleged possession of the appellant. It casts a doubt on the prosecution case. However, the report of the State Forensic Science Laboratory shows that ‘heroin’ could be detected in all the packets. This raises a reasonable doubt regarding the nature and character of the substance recovered from the alleged possession of the appellant. It casts a doubt on the prosecution case. Further, it is settled principle of law that whenever two views are possible the view favouring the defence should be adopted or accepted by Court as the accused is presumed to be innocent till his guilt is established by cogent evidence. 9.Another aspect of the case is that in this case all the independent witnesses have not supported the case of the prosecution and has been held to be hostile witnesses by the learned Special Judge. Furthermore, Baidhar Sahu, who is alleged to be a drug addict and allegedly purchased drugs from the present appellant, has been withheld by the prosecution and has not been examined without assigning any reason. Moreover, the petitioner’s wife, whose relationship has been disputed by the learned counsel for the appellant, has not been cited as a witness in this case. 10.All these aspects of the case cast very strong and reasonable doubts regarding prove of the guilt of the accused. Thus, on the basis of such discussion, the Court comes to the conclusion that the benefit of doubt should be extended to the appellant and he should be acquitted of the charges. Accordingly, the appeal is allowed. Conviction of the appellant for the offence under Section 21 of the N.D.P.S. Act and consequently, the sentence awarded to him by the learned Special Judge, Jajpur is, therefore, set aside. The appellant be set at liberty forthwith, if his detention is not required in any other criminal case. Appeal allowed.