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2013 DIGILAW 30 (ORI)

Chaina Dalai v. State of Orissa

2013-01-29

B.K.MISRA

body2013
JUDGMENT B.K. MISRA, J. - The appellant having been convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of RS.1 0,000/- in default of payment of fine was further directed to undergo rigorous imprisonment for a further period of one year for the offence under Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1995, (hereinafter referred to as the 'N.D.P.S. Act') by the learned Addl. Sessions Judge, Jaipur in S.T. Case NO.19 of 1990 has preferred this appeal. 2. The case of the prosecution is that the Inspector of Excise, Jaipur (P.W.1) on 19.2.1990 around 4.30 A.M. while patrolling at Sathipur along with staff namely, Abdul Latif Khan (P.W.3), A.S.I. of Excise, Jaipur and two other excise constables namely Suryamani Das and Jagannath Mishra, (P.W.2) found the appellant in possession of a white tin box and a "Jari Bag". On suspicion, P.W.1 in the presence of the witnesses took search of the tin box as well as the "Jari bag" and found the tin box containing 6 kilograms and 750 grams of ganja and there were 2 kilograms and 500 grams of ganja in the "Jari Bag". Those contraband 'ganja' were seized by P.W.1 at the spot. The appellant as well as the seized articles were produced before the S.D.J.M., Jaipur on the very day of detection of the offence. On completion of the investigation, Prosecution Report (P.R.) was submitted against the appellant to stand his trial under Section 20(b)(1) of the N.D.P.S. Act, 1985. 3. The plea of the appellant was that of a complete denial of recovery of any 'ganja' from his possession as alleged by the prosecution and it was his further plea that this case has been falsely foisted against him. 4. The prosecution in order to prove its case examined five witnesses in all and of them, P.Ws. 1 to 3 were the three witnesses belonging to the Excise Department. P.Ws.4 and 5 were the two independent witnesses for the prosecution on the point of seizure of the alleged contraband excisable articles from the possession of the appellant. The appellant had declined to examine any witness in his defence. 5. The learned Special Judge-Cum-Addl. 1 to 3 were the three witnesses belonging to the Excise Department. P.Ws.4 and 5 were the two independent witnesses for the prosecution on the point of seizure of the alleged contraband excisable articles from the possession of the appellant. The appellant had declined to examine any witness in his defence. 5. The learned Special Judge-Cum-Addl. Sessions Judge, Jaipur believed the case of the prosecution about seizure on ganja from the conscious possession of the appellant and accordingly recorded the order of conviction and passed the impugned sentences which is assailed in this appeal. 6. The learned counsel appearing for the appellant while taking me through the evidence and materials in record contended that the learned Addl. Sessions Judge, Jaipur failed to appreciate the position of law and when there has been non-compliance of the mandatory provisions of Sections 42(1), 50, 55 and 57, of the N.D.P.S. Act and also when there has been no chemical test to establish that the seized articles contraband exciseable articles, the appellant should have been acquitted. It was also contended that there has been failure of justice in the instant case as the basic tenets of law have been ignored by the learned Addl. Sessions Judge, Jaipur. Accordingly, it was prayed that the order of conviction and sentences are to be set aside and the appellant is to be acquitted of the offence. In support of this contention the learned counsel appearing for the appellant placed reliance on a judgment of the Apex 'Court as reported in (2011) 4 SCC 441 , Harjit Singh v. State of Punjab. 7. The learned Counsel appearing for the State on the other hand contended that the impugned order of conviction and sentences need not be disturbed by this Court as the findings of the learned Addl. Sessions Judge, Jaipur are based on legal evidence and materials on record. It was also contended by the learned Additional Standing Counsel that chemical examination of the seized material is not at all mandatory and when there has been no violation of any of the provisions of the N.D.P.S. Act by the I.O. in detection of ganja from the possession of the appellant, the appellant has been rightly held guilty and convicted by the learned Additional Session Judge, Jaipur. 8. 8. Before going into the detail analysis of evidence and examining the provisions of the N.D.P.S. Act, it is to be borne in mind that the N.D.P.S. Act, 1985 provides stringent penalties for various offences and has undergone amendments als6'prescribing higher punishment for the offenders. Thus to substantiate the charge against the offender the prosecution is to prove the charge or charges with strict legal evidence on record and all care should be taken by the prosecution to see that the safeguards provided in the statute have been scrupulously followed. 9. In the instant case P.W1, who is the I.O., namely, the Inspector of Excise, Jaipur in his evidence on oath before the learned Addl. Sessions Judge, Jaipur in paragraph seven has categorically stated on oath that he had prior information that the accused would arrive within three to four days and that information he received about the three to four days before the date of occurrence. It is his further evidence that on 19.2.1990 he along with A.S.I. of Excise Abdul Latif Khan, Constables Suryamani Das and Jagannath Mishra while patrolling at Sathipur around 4.30 A.M. found the accused Standing at Sathipur crossing near the bus stoppage with a tin box and "Jari bag". P.W.1 deposed that on suspicion he took search of the tin box and the bag of the accused in presence of his staff and two independent witnesses namely, Karunakar Behera of Govindapatna and Rajkishore Sahu of Raitundi and found the box containing 6 kilograms and 750 grams of ganja and in the bag there were 2 kilograms and 500 grams of ganja, which were seized, P.W1 has proved the seizure list as Ext.1 and he has proved the tin box containing 'ganja' which was sealed with paper seal as M.O.I. and he proved the plastic bag containing ganja which was seized by him as M.O.IV. P.Ws.2 and 3 they also corroborated the evidence of P.W.1 about the seizure of ganja from the trunk and the 'Jari bag' which were there with the accused on 19.2.1990 at about 4.30 A.M. P.Ws.4 and 5 the two independent witnesses they have not at all supported the case of the prosecution about the seizure of any ganja from the possession of the accused-appellant and simply they have proved their signatures on the seizure list Ext.1 and they deposed that their signatures were obtained on a plain paper. 10. 10. Sub-section (1) of Section 42 of the N.D.P.S. Act clearly provides that if the empowered officer has prior information in respect of an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985, he should necessarily take it down in writing and he may carry out the arrest or search without a warrant between the sunrise and sunset and he may do so without recording the reason of belief. It is needless to mention here that the provisions of Section 42 of the N.D.P.S. Act are mandatory in nature. In the instant case P.W1 the I.O. has categorically admitted in his evidence that he had prior information that the accused would arrive within three to four days but his evidence is completely silent as to whether he had recorded the information which he received in compliance of Sub-section (1) of Section 42 of the N.D.P.S. Act and sent a copy of the same to his immediate superior officer without any delay. On the other hand it is his evidence that he had endorsed the reasons of search on the body of the seizure list Ext.1. Perusal of Ext.1 namely the seizure list nowhere discloses as to why search of the accused was taken and no reason has been ascribed. Not a single scrap of paper could be produced by the prosecution to substantiate the point with regard to mandatory compliance of the provision of Sub-section (1) of Section 42 of the N.D.P.S. Act in this case by the I.O. Thus, such non-compliance of the mandatory provisions of law definitely affects the merit of the prosecution case. 11. In the instant case simply the evidence of P.Ws.1 to 3 shows that search of the tin box and the bag of the accused were taken and ganja was recovered. Section 50 of the N.D.P.S. Act is definitely applicable to the facts of this case as in the instant case P.W.1 had prior information about the accused which he has specifically deposed to in paragraph seven of his evidence. Once it is held that the empowered officer has prior information about the commission of offence by the accused under the N.D.P.S. Act, he should follow the procedure as prescribed under Section 50 of the N.D.P.S. Act which is the settled position of law (the State of Punjab v. Baldev Singh etc. Once it is held that the empowered officer has prior information about the commission of offence by the accused under the N.D.P.S. Act, he should follow the procedure as prescribed under Section 50 of the N.D.P.S. Act which is the settled position of law (the State of Punjab v. Baldev Singh etc. etc., 1999 (II) OLR (SC) 474 : (1999) 17 OCR (SC) 275). In the instant case there is absolutely no evidence that the I.O. followed the procedures prescribed under Section 50 of the N.D.P.S. Act. Section 50 of the N.D.P.S. Act reads as follows:- "Section 50 Conditions under which search of persons shall be conducted- (1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay, to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he car bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made." In the case of State of Punjab v. Baldev Singh case (supra) the Apex Court observed as follows :- "However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of noncompliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provision of Section 50 of the Act implicity make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50 by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officers or a Magistrate, would cause prejudice to an accused and render the recovery of the illicit article suspect and v1tiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would be caused to an accused by the omission to be informed of the existence of his right, it would render the conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, it he so requires, is sacrosanct and indefeasible-it cannot be disregarded by the prosecution except at its own peril." Keeping in mind the above settled position of law as enunciated by the Constitution Bench of the Apex Court, I am of the firm conviction that when P. W.1 in the instant case on prior information searched the appellant, it was imperative for him to inform the appellant of his right under Sub-section (1) of Section 50 of the N.D.P.S. Act and such failure on the part of the investigating officer definitely has affected the merit of the case adversely. 12. 12. Now coming to the next point with regard to sending the seized articles for chemical examination, I am to mention here that when the appeal was heard initially by a learned Single Judge of this Court to settle the conflicting views that in case of seizure of 'ganja' whether chemical analysis is mandatory or not, the matter was referred to a Division Bench of this Court with the leave of the Hon'ble the Chief Justice. A Division Bench of this Court by their judgment dated 2.5.2008 by considering the various provisions and decisions of this Court as well as the Apex Court and taking into consideration the instructions issued by the Narcotic Control Bureau, New-Delhi concluded that the instructions issued by the Narcotic Control Bureau have no statutory force and cannot be treated as mandatory but however this Lordship of the Division Bench further observed that it would be desirable for the Investigating Officer to follow the standing instruction for a fair trial as far as practicable but non-compliance of the same will not be fatal to the prosecution. Their Lordships of the Divisions Bench has also taken note of the decision rendered by the Apex Court in Baidyanath Mishra and another v. State of Orissa, reported in Vol. (34) 1968 C.L.T. In the instant case the evidence of P.W.1 the I.O. no where discloses that if any chemical test was conducted in respect of the seized materials. His only evidence, is that he had served in the Excise Department for more than 22 years and from his experience he found the seized materials to be ganja. P.W.3, the A.S.I. of Excise has not at all breathed a word if any test was conducted in respect of the seized materials. Very surprisingly P.W.2 the Excise Constable deposed that he along with witnesses after chewing the ganja opined them to be ganja. The position of law has been succinctly stated by the Apex Court in Harjit Singh v. State of Punjab, (2011) 4 SCC 441 where their Lordships also referred to the earlier decision of the Apex Court in Baidyanath Mishra's case (supra) and have categorically held that the ratio decided in Baidyanath Mishra's case (supra) cannot be the authority in deciding cases under the N.D.P.S. Act as that was the case under the Opium Act. Their Lordships have categorically observed that chemical analysis of the contraband material is essential to prove the case against the accused under the N.D.P.S. Act. 13. In the instant case there is absolutely no chemical test of the seized materials. Samples of the seized materials were never drawn as per the procedure prescribed under the statute for sending them for any chemical analysis. The prosecution case cannot be said to have been established and in view of my aforesaid analysis of the evidence and position of law and when there has been non-compliance of the mandatory provisions of law with regard to the search and seizure of contraband 'ganja', I am 'unable to accept the case of the prosecution. In the result, the conviction and sentences of the appellant are hereby set aside. The appellant is acquitted of the charge. The appeal is accordingly allowed. Appeal allowed.