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2013 DIGILAW 116 (ORI)

Sudhakar Nayak v. State of Orissa

2013-04-24

B.K.MISRA

body2013
JUDGMENT The two appellants having been convicted by the learned Special Judge-cum-2nd Additional Sessions Judge, Berhampur under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N. D. P. S. Act) and directed to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- each in default to further ungergo rigorous imprisonment for two years in 2(a) C.C. Case No. 4 of 2003 (N) have preferred this appeal. 2. The case of the prosecution is that on 9-3-2003 at about 8 a. m. the Sub-Inspector of Excise (E. I. & E. B.) Berhampur (P.W.4) found both the appellants coming from old bus stand proceeding towards Khallikote College via the Telephone Bhawan carrying one fertilizer bag and a V. I. P. Attache. The S. I. of Excise (E. I. & E. B.) Berhampur Sri Prafulla Kumar Patnaik (P.W.4) and his staff who were patrolling in the said area suspecting the movement of the appellants detained them by disclosing their identity. P. W. 4 expressed his desire to take search of the appellants and their belongings as the appellants to his querry disclosed that they were carrying Ganja in the fertilizer bag as well as the V. I. P. Attache. P. W. 4 gave his personal search to the appellants and when took search of the fertilizer bag found the same to have contained Ganja. Similarly, Ganja was also detected in the V. I. P. suitcase when the same was opened after appellant Sudhakar Nayak handed over the key of the said V. I. P. suitcase to P. W. 4. On taking weighment of the Ganja which were there in the V. I. P. suitcase it weighed 11 Kilogram and 500 grams and the Ganja which were therein the fertilizer bag on weighment became 9 Kilogram and 800 grams. Since the appellants could not produce any authority in support of such possession of the contraband articles which they were carrying, those were seized at the spot and the fertilizer bag containing Ganja as well as the V. I. P. suitcase were also sealed with paper seal after obtaining the signatures of the witnesses and the appellants thereon. Since the appellants could not produce any authority in support of such possession of the contraband articles which they were carrying, those were seized at the spot and the fertilizer bag containing Ganja as well as the V. I. P. suitcase were also sealed with paper seal after obtaining the signatures of the witnesses and the appellants thereon. The contraband articles as well as the V. I. P. suitcase and the fertilizer bag were also sealed with the personal brass seal of P. W. 4, which was handed over to P. W. 2 after the sealing was completed. The two appellants along with the seized contraband excise articles were produced before the learned Special Judge, Berhampur on 9-3-2003 and as per the direction of the learned Special Judge, Berhampur, the S. D. J. M., Berhampur collected samples from the seized contraband articles and the samples were sent for chemical examination in course of the investigation by P. W. 4. After completion of investigation, P. R. was submitted against the two appellants under Section 20(b)(II)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N. D. P. S. Act) to stand their trial. 3. The plea of the two appellants was that of complete denial of seizure of any Ganja from their possession and it is their further plea that they had come to Berhampur from their village in a bus and were caught by excise police along with four others at Puruna bus stand (Old Bus Stand). It is also their further plea that they had singed on different papers being directed by the excise officers and the four persons who were also caught along with them were let off by the excise staff. 4. The prosecution in order to establish its case against the two appellants examined five witnesses in all and of them P. Ws. 1 and 2 were the two independent witnesses to the search and seizure of Ganja. P. Ws. 3, 4 and 5 are the officers of the excise department and of them P. Ws. 3 and 4 spoke about the search and seizure of Ganja from the possession of the accused appellants whereas P. W. 5 was examined to speak regarding the safe custody of the contraband excise articles which were kept in the Malkhana of the Excise Department which was in his charge on 9-3-2003. 3 and 4 spoke about the search and seizure of Ganja from the possession of the accused appellants whereas P. W. 5 was examined to speak regarding the safe custody of the contraband excise articles which were kept in the Malkhana of the Excise Department which was in his charge on 9-3-2003. The two appellants declined to examine any witness in their defence. 5. The learned Special Judge, Berhampur formulated the sole point for determination i.e. where the accused persons were found in conscious possession of 21.3 Kilograms of Ganja. 6. Mr. D. Nayak, learned counsel appearing for the appellants in course of his argument while taking me through the evidence on record contended that the appellants in this case are entitled to an order of acquittal as the learned Special Judge failed to take note of the defects which the Investigating Officer committed during search and seizure of the alleged Ganja and it was also very strenuously urged that when P. W. 4 had effected the alleged seizure of the Ganja from the two appellants he should not have been the I. O. and for that reason the order of conviction as has been recorded by the trial Court cannot be sustained in the eye of law. It was also contended that the learned Special Judge placed too much reliance on the evidence of P. Ws. 1 and 2 who are the stock witnesses for the department and the learned Special Judge completely over looked the admission of P. W. 2 in that regard. Besides that the learned counsel for the appellants contended that since the statutory provisions of law with regard to safe custody of the Ganja has not been observed, the possibility of tampering with the contraband articles and implantation cannot be ruled out and, therefore, when there appear a needle of suspicion about the safe custody of the alleged contraband excisable articles after seizure the appellants cannot be held guilty of the charge and the order of conviction is bound to be set aside. 7. Mr. D. K. Mishra, learned Addl. Government Advocate appearing for the State contended that the findings recorded by the learned Special Court, Berhampur while convicting the appellants and awarding sentences are completely justified, in view of the overwhelming evidence on record and therefore the present appeal having no merit should be dismissed. 8. 7. Mr. D. K. Mishra, learned Addl. Government Advocate appearing for the State contended that the findings recorded by the learned Special Court, Berhampur while convicting the appellants and awarding sentences are completely justified, in view of the overwhelming evidence on record and therefore the present appeal having no merit should be dismissed. 8. I have perused the evidence on record in minute detail P. Ws. 1 and 2 are the two independent witnesses for the prosecution and it is their consistent evidence that in their presence the two appellants while coming towards the Telephone Bhavan from the old Bus stand carrying one Attache (M. O.II) and a gunny bag (M.O.I.) were detained by the Excise Officers and on being asked by the said officials the appellant confessed to have kept Ganja in M. Os. I and II. It is also their consistent evidence that they gave their personal search to the Excise Officer but nothing incriminating could be found. It is also their evidence that from M. O.I., 9 Kilogram and 800 grams of ganja was recovered and from M. O. II, 11 Kilogram and 500 grams of ganja was recovered. P. Ws. 1 and 2 deposed that the contraband articles were seized and seizure list was prepared and thereafter those were also sealed with the personal brass seal of the Excise Officer which was handed over to Bhaskar Sabat (P.W.2). Bhaskar Sabat who has been examined as P. W.2 also in his evidence admitted that the contents of M. Os. I and II were weighed in their presence by procuring the weighing machine from a nearby shop. He also deposed that the ganja which were there in the gunny bag and Attache after weighment were put inside the gunny bag and Attache and were sealed with the personal brass seal of Excise Babu. The Excise Babu gave the brass seal used for sealing both the Attache and gunny bag to him under a zimanama marked Ext. 4. 9. The Excise Babu gave the brass seal used for sealing both the Attache and gunny bag to him under a zimanama marked Ext. 4. 9. P. W. 4 was the S. I. of Excise, Intelligence Bureau, Berhampur on 9-3-2003 and it is his evidence that while performing patrol duty at Old Bus Stand, Berhampur around 8.00 a. m. on 9-3-2003 near the Telephone Bhawan he found appellant Sudhakar coming with a Jari bag (gunny bag, M. O.-I) and appellant Sarat Chandra Naik was carrying a blue colour V. I. P. Attache (M. O.-II) and while they were proceeding towards Khallikote College, Berhampur on suspicion he detained them. P. W.4 also deposed that when he asked the appellant as to what they were carrying in M. Os. I and II, they admitted that they have kept Ganja in M. Os. I and II. The evidence of P. W. 4 further discloses that the appellants could not produce any authority in support of such possession of Ganja and accordingly he served notice on the two appellants to take search of M. Os. I and II and he has proved the notice issued to the appellants as Ext. 1. The further evidence of P. W. 2 shows that the two appellants when agreed to be searched by him, search of M. Os. I and II were taken. It was also the evidence of P.W. 4 that the appellant Sudharkar handed over the key of the V. I. P. Attache to him with which he opened the Attache (M. O.II). P. W. 4 also deposed that when he took weighment of the contents of M. O. II i.e. Ganja the same weighed 11 Kilogram and 500 grams. Similarly, when he took weighment of the contents of M. O. I. (Ganja), the same weighed 9 Kilogram and 800 grams. P. W. 4 deposed that when he burnt a small quantity of Ganja which were there in M. Os. I and II, the smoke emitted the smell of Ganja and from the colour, texture and from his specialized training he was sure that the contents of M. Os. I and II were Ganja and accordingly he seized them in presence of the witnesses vide seizure list Ext. 3. P. W. 4 deposed that he sealed M. Os. I and II by affixing paper seal and by using his personal brass seal. I and II were Ganja and accordingly he seized them in presence of the witnesses vide seizure list Ext. 3. P. W. 4 deposed that he sealed M. Os. I and II by affixing paper seal and by using his personal brass seal. P. W. 4 also deposed that he handed over his personal brass seal after sealing M. Os. I and II to P. W. 2 under a properly executed zimanama by P. W.2, (Ext. 4). P. W. 4 also deposed that on the very same day he produced the two appellants as well as the articles seized before the Special Judge, Berhampur and since that was a holiday being Sunday as per the orders of the learned Special Judge, Berhampur he produced the seized articles before the S. D. J. M., Berhampur on 10-3-2003 to draw samples and to send them for chemical examination. P. W.4 also deposed that he produced the seized articles before the S.D.J.M., Berhampur and the S.D.J.M., Berhampur drew two samples each weighing 50 grams from M. Os. I and II and sent the same along with his forwarding report to the Deputy Drugs Controller, Bhubaneswar. The said forwarding letter of the learned S. D. J. M., Berhampur has been proved as Ext. 8 by P. W. 4 and the chemical examination report received from the Deputy Drugs Controller, Bhubaneswar has been proved as Ext. 10. P. W. 4, deposed that he examined the accused persons and recorded their statements and he had sent the letter regarding search, seizure and arrest of the accused persons to his immediate superior and he has proved the copy of the said letter as Ext. 12. P. W.3, the Excise Constable has categorically stated about the seizure of contraband Ganja from the possession of the appellant and his evidence is consistent with the evidence of P. W. 4 and P. Ws. 1 and 2. P. Ws. 1 to 4 have been cross-examined by the defence at length but nothing could be elicited from their mouth to disbelieve the factum of search and seizure of Ganja from the possession of the appellants in this case. On the other hand, the substratum of the case of the prosecution that contraband Ganja which the two appellants were carrying in M. Os. On the other hand, the substratum of the case of the prosecution that contraband Ganja which the two appellants were carrying in M. Os. I and II were recovered from their possession and the appellants were carrying such contraband excise articles without any authority has totally remained unshaken. There is nothing on record to disbelieve the evidence in that regard. It is true that P. W. 2 has admitted that he was a witness in a case under the N. D. P. S. Act and also in a case relating to seizure of liquor in another case but that cannot be a ground to disbelieve the evidence of P. W. 2 as his evidence reveals that he has depicted the true incident i.e. the factum of seizure of contraband excisable articles from the possession of the two appellants on 9-3-2003 morning. Taking also the worst view that evidence of P. W. 2 should not be believed but there is nothing on record to disbelieve the evidence of P. Ws. 1, 3 and 4 and it is not known as to why P. Ws. 1, 3 and 4 would speak falsehood against the two appellants with whom they had no axe to grind. 10. P. W. 5 was the I. I. C. (E. I. & E. B.), Southern Division, Berhampur. P. W.5 deposed that he was in-charge of Malkhana of the Department at the relevant time and he produced the Malkhana Register before the Court during evidence and he has proved the entry No.5 in the said Mal Register with regard to the mal item in P. R. No. 170 of 2002-03 which was proved as Ext. 13. He has also proved his endorsement in the register with regard to Ext. 13 as Ext. 13/1. It is also the evidence of P. W. 5 that the mal item seized in P. R. No. 170 of 2002-03 were sent to Court on 9-3-2003 which was received back on the same day. Ext. 7 is the extract of the order of the Special Judge, Berhampur to show that direction was given by him to S. D. J. M., Berhampur in forwarding the samples to the State Drugs Testing Research Laboratory, Bhubaneswar and Ext. 8 is the forwarding letter of the S. D. J. M., Berhampur which shows that the brass seal impression of the S. D.J.M., Berhampur was affixed to the forwarding report. 8 is the forwarding letter of the S. D. J. M., Berhampur which shows that the brass seal impression of the S. D.J.M., Berhampur was affixed to the forwarding report. Ext. 10, the chemical examination report shows that two sample packets marked X and Y in P. R. No. 170 of 2002-2003 was received on 12-3-2003 by the Deputy Drugs Controller, Bhubaneswar and the seals on the sample packets were intact and identical with the specimen brass seal impression given on the forwarding memo. Ext. 10 shows that the samples sent for chemical examination were found to be Ganja /cannabis as defined under Section 2(iii)(ba) of the N. D. P. S. Act, 1985. Thus, there are ample materials on record which unerringly shows that the appellants were in conscious possession of the contraband articles, namely, Ganja which they were in possession without any authority. 11. The contention of the learned counsel for the appellants that the prosecution is bound to fail since P. W. 4 himself having conducted search, effecting seizure and arresting the appellants should not have produced with the investigation in order to ensure fair play and impartiality. I am unable to accept the said contention of the learned counsel for the appellants in view of the trite law that there is nothing in the provisions of the Criminal Procedure Code as well as in the N. D. P. S. Act which precluded the seizing officer from taking up the investigation. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition in the matter. In that context, we can profitably refer to a decision of the Hon’ble Apex Court reported in (2004) 5 SCC 223 : ( AIR 2004 SC 2684 ), State represented by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, T. N. v. V. Jayapaul. 12. In the instant case as I have already discussed above there is no material to show that the prosecution against the appellants was initiated as a result of any malice on the part of the Seizing Officer, P. W. 4, who is also the investigating officer. The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorized purpose. The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorized purpose. The dominant purpose of registering the case against the appellants was to have an investigation done into the allegations contained in the F.I.R. and in the event of there being sufficient material in support of the allegations to present the charge-sheet before the Court. There is no material to show that the dominant object of registering the case was the character assassination of the accused persons or to harass and humiliate them. Therefore, the contention of the learned counsel for the appellants that P. W. 4 being the informant should not have investigated into the case and the present prosecution cannot stand and appellants are entitled to an order of acquittal falls to the ground. 13. Now coming to the question of awarding sentence on the appellants I find that while convicting the appellants for the offence under Section 20(b)(ii)(C) of the N. D. P. S. Act, the learned Special Judge-cum-Additional Sessions Judge, Berhampur imposed the minimum sentence of imprisonment for 10 years and imposed Rs. 1,00,000/- as fine in default of payment of fine each of the appellants to undergo further rigorous imprisonment for two years each. It is seen that the two appellants, who were young boys are uterine brothers when the offence was committed and they were 20 to 25 years old. The appellants have already spent 10 years in prison. Besides that they would also pay fine of Rs. 1,00,000/- each. Therefore, directing them to undergo rigorous imprisonment for two years for non-payment of fine of Rs. 1,00,000/- appears to be somewhat excessive. Therefore, while maintaining the order of conviction of the appellants and the sentence directing them to undergo rigorous imprisonment for 10 years each and to pay fine of Rs. 1,00,000/- each, the default sentence for non-payment of fine is reduced to six months from that of two years. 14. With the aforesaid modification of the default sentence imposed on each of the appellants, the appeal stands dismissed. Appeal dismissed.