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2013 DIGILAW 56 (ORI)

Banu @ Banamali Behera v. State of Orissa

2013-02-26

B.K.NAYAK

body2013
JUDGMENT B. K. NAYAK, J. - The appellant challenges the judgment dated 10.08.2006 passed by the learned Sessions Judge-cum-Special Judge, Cuttack in G.R.Case No. 1285 of 2002 whereby the appellant has been convicted under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act (in short 'the NDPS Act') and sentenced to undergo R.I. for a period of ten years and fine of Rs. 1,00,000/-, in default, to undergo R.I. for further period of three years. 2. The prosecution case in a nutshell is as follows: On 06.11.2002 the O.I.C. of Cuttack Sadar Police Station (P.W.9) received information that the accused-appellant was selling brown sugar in his cowshed at village-Paiksahi. He entered the information in the Station Diary of the Police Station vide SDE No. 151 dated 06.11.2002 and informed the Superintendent of Police, Cuttack by way of a written report. He also sent requisition to the Sub-Collector, Cuttack for deputation of an Executive Magistrate. At 9.50 A.M., the Officer-in-charge with the police party and two independent witnesses, namely, Bauri Sahu and Ramesh Chandra Sahu, reached near the cowshed in question in village-Paiksahi. The accused was then found sitting inside the cowshed and opening a polythene packet containing brown sugar and near the polythene packet there was a small brass weighing scale, one 100 gm. iron weight, one white polythene empty packets were lying. At the sight of the police party, the accused wanted to escape but could not. The Officer-in-charge gave his identification to the accused and the purpose of his visit and asked him, informing his right, whether he wanted to be searched in presence of an Executive Magistrate or Gazetted Officer. The accused opted the presence of an Executive Magistrate. Sri Nigamananda Panda, who is an Executive Engineer then reached at the spot being deputed by the Sub-Collector and also gave his identity to the accused. Personal search of the accused was conducted in presence of the Executive Magistrate, but nothing was recovered from his possession. But from the cowshed a pink old polythene packet containing brown sugar, one empty torn white polythene packet, one small brass weighing scale, one iron 100 gm. weight, six number of polythene empty packets were recovered from the cowshed where the accused was sitting. The brown sugar was weighed, which was found to be 296 gms. But from the cowshed a pink old polythene packet containing brown sugar, one empty torn white polythene packet, one small brass weighing scale, one iron 100 gm. weight, six number of polythene empty packets were recovered from the cowshed where the accused was sitting. The brown sugar was weighed, which was found to be 296 gms. including the weight of newspaper and the net weight was found to be 288 gms. The Scientific Officer, who was present, drew two separate samples of 5 gms. each from the brown sugar and made two separate packets marked as A/1 and A/2. The packet containing the bulk quantity of brown sugar was marked as Ext. A. The other incriminating materials lying there were also kept in separate packets marked as B, C, D and E. The OIC sealed all the packets in presence of witnesses with his personal brass seal and obtained the signatures thereon of the witnesses including the Executive. Magistrate and the Scientific Officer of District Forensic Science Laboratory and also that of the accused. He seized all the sealed packets marked as A to E at the spot and prepared the seizure list in presence of witnesses and obtained the signatures of the witnesses and the accused. He also impressed the seizure list with the specimen seal of his personal brass seal and left the brass seal in the zima of a witness keeping it in a sealed packet. Thereafter, the OIC arrested the accused and drew up the plain paper FIR at the spot. The Sub-Inspector of Police (P.W.11) being directed to take up investigation, the OIC handed over the seizure list, zimanama, other connected papers and the seized properties to P.W.11 at the spot. P.W.11 took up investigation. During investigation P.W.11 sent the seized materials including samples to S.F.S.L. for chemical examination. -tie seized the reports, which were sent by the OIC under Section 42(2) and 57 of the Act. On completion of investigation, charge-sheet was submitted against the accused under Section 21 (c) of the Act. 3. The plea of the accused was complete denial of the allegations. It was also his plea that nothing was seized from his possession and that the cowshed in question does not belong to him. 4. On completion of investigation, charge-sheet was submitted against the accused under Section 21 (c) of the Act. 3. The plea of the accused was complete denial of the allegations. It was also his plea that nothing was seized from his possession and that the cowshed in question does not belong to him. 4. In order to prove its case, the prosecution examined 11 witnesses in all, P.W.1 to 4, who are said to be independent witnesses have not supported the prosecution case. P.Ws. 5, 6 and 7 are the police officers, who were members of the raiding party. P.W.8 is the Scientific Officer, who drew samples at the spot. P.W.9 is the Officer-in-charge of the Police Station and the informant. P.W.10 is the Executive Magistrate and P.W.11 is the Investigating Officer. No witness was examined on behalf of the defence. On assessment of the evidence, the Trial Court found the accused-appellant guilty of the offence under Section 21 (c) of the Act and accordingly passed the impugned order of conviction and sentence. 5. In assailing the impugned judgment, the learned counsel for the appellant submits that the independent witnesses having not supported the prosecution case and that in view of the discrepancy in the evidence of P.W.9 and P.W.7, the factum of search and seizure of brown sugar cannot be believed. It is also his submission that the cowshed in question does not belong to the accused and there is no proof with regard to the ownership of the accused over the same and, therefore, the accused cannot be said to be in exclusive and conscious possession of the alleged brown sugar. It is also submitted that there is non-compliance of the mandatory provisions of Sections 42 and 57 of the N.D.P.S. Act. It is lastly submitted by the learned counsel for the appellant that the appellant has already been in jail custody from 07.11.2002 and has in the meantime already suffered more than the substantive sentence awarded by the Trial Court and, therefore, the default sentence in respect of the fine imposed may be reduced. The learned State Counsel, on the other hand, submits that the discrepancy in the evidence of P.Ws. 9 and 7 is not very grave, which does not affect the reliability of the official witnesses. The learned State Counsel, on the other hand, submits that the discrepancy in the evidence of P.Ws. 9 and 7 is not very grave, which does not affect the reliability of the official witnesses. It is his submission that with regard to the packets of brown sugar the evidence of P.W. 7 appears to be the result of some confusion, which cannot be given much emphasis. It is also his submission that establishment of ownership over the cowshed in question is not necessary inasmuch as the accused himself was found opening the polythene packet, which contained brown sugar and this proves his conscious possession. 6. P.W.9 was the Officer-in-charge of Cuttack Sadar Police Station on the date of occurrence, i.e., on 06.11.2002. It appears from his testimony that at 9.30 A.M. on that day, he received information from his source that the accused was selling brown sugar in his cowshed in village-Paiksahi. P.W.9 entered the information in the Police Station Diary vide Station Diary Entry No. 151 (Ext. 14/1) and also informed the matter over telephone to the Superintendent of Police. He also sent a written report (Ext. 20) to him as required under Section 42 of the Act. Ext. 14/2 is the Entry No. 152 of the Station Diary dated 06.11.2002 regarding the sending of the report to the Superintendent of Police. He then sent a written requisition to the S.D.M. (S), Cuttack for deputing an Executive Magistrate to remain present during search and seizure. It further appears from the evidence of P.W.9 that he along with the police staff went to the village-Paiksahi and near Ratan Petrol Pump, they found witnesses, Bauri Sahu and Ramesh Sahu (P.Ws. 1 and 3) of village-Paiksahi and briefed them about the information received by him and took them to the spot. P.W.3, Ramesh Rout identified the cowshed and the house of accused to the police party. P.W.9 found the accused sitting inside cowshed and was opening one polythene packet containing brown sugar. He had also found near the polythene packet one small brass weighing scale and one iron 100 gm. weight (batkara), one white empty polythene packet, one half piece Oriya newspaper and six number of small empty polythene packets. Seeing the' police party the accused tried to escape but he was detained in presence of the witnesses. He had also found near the polythene packet one small brass weighing scale and one iron 100 gm. weight (batkara), one white empty polythene packet, one half piece Oriya newspaper and six number of small empty polythene packets. Seeing the' police party the accused tried to escape but he was detained in presence of the witnesses. P.W. 9 gave his identity to the accused and asked him orally as well as in writing about his right and his option if he wanted to be searched in presence of Executive Magistrate or Gazetted Officer. The accused wanted to be searched in presence of an Executive Magistrate. At that time, Nigamananda Panda, O.A.S., Executive Magistrate (P.W.10) arrived at the spot along with the Head Constable, C.S. Sahu and gave his identity to P.W.9 as well as to the accused and handed over the order memo of the S.D.M. (S) (Ext. 15) by which he had been deputed to the spot. He also asked the accused as to whether he wanted to be searched in his presence and the accused agreed to be searched in his presence. Thereafter, P.Ws.9 and 10 and other police officials gave their personal search and thereafter P.W.9 searched the accused and found nothing incriminating on his person. He then recovered and searched the polythene packet, which was in the cowshed where the accused was found sitting. In the polythene packet there was-brown sugar which had been wrapped in an old half newspaper. He also recovered one empty white torn polythene packet, one brass weighing scale, one iron 100 gm. weight and six number of small polythene empty packets of slight yellow colour. P.W.9 then sent V.H.F. message to the Scientific Officer of the District Forensic Science Laboratory to come to the spot for assisting him. Sometime later P.C. Mandal, the Scientific Officer (P.W.8) reached the spot and on the request of P.W.9 weighed the polythene packet containing the brown sugar. The packet containing brown sugar including the half piece news paper came to 296 gms, and the net weight of the brown sugar came to 288 gms. As per the direction of P.W.9 the Scientific Officer drew two samples of 5 gm. each from the brown sugar and kept in two separate packets. The packet containing brown sugar including the half piece news paper came to 296 gms, and the net weight of the brown sugar came to 288 gms. As per the direction of P.W.9 the Scientific Officer drew two samples of 5 gm. each from the brown sugar and kept in two separate packets. Thereafter, P.W.9 sealed the bulk brown sugar packet by his own brass seal and marked as 'A' and the two sample packets were also similarly sealed and marked as A/1 and A/2. The other materials seized from the place including the brass weighing scale and one 1 ob gm. iron weight were separately packed and sealed and marked as S, C, D and E. He seized all those articles and prepared seizure list vide Ext. 1/2 at the spot. The witnesses including the Scientific Officer and the Executive Magistrate and the accused signed on the seizure list as well as on the seized packets. He also put his specimen seal impression on the body of the seizure list and on a separate piece of paper. Thereafter, he kept his personal brass seal in a packet and after sealing the same handed it over to P.W.3 under a zimanama (Ext. 5/1) on which P.W.3 has also signed. P.W.9 thereafter arrested the accused at about 2.30 P.M. after intimating him the ground of arrest. He then drew up a plain paper FIR at the spot, Ext. 16 and summoned Sub-Inspector of Police, Mr. Mukherjee from the Police Station and on his arrival directed him to take up investigation of the case. On the spot, he handed over the seizure list, zimanama and all other documents and the seizure materials to the Investigating Officer (P.W.11). On return to Police Station he registered P.S. Case No. 261 dated 06.11.2002 and entered the fact in the Station Diary vide Entry No. 162. The seized properties were kept in the police Malkhana and the fact was entered in Malkhana Register. He thereafter submitted a report (Ext. 19) to the Superintendent of Police, Cuttack as required under Section 57 of the N.D.P.S. Act with a copy to the Circle Inspector., P.W.9 during his deposition identified all the seized materials in Court and his signature and the signatures of other witnesses and that of the accused. In his cross-examination nothing substantial has been brought out to discredit his testimony. In his cross-examination nothing substantial has been brought out to discredit his testimony. He, however, admits that he has not verified the records to know the ownership of the land on which the cowshed in question situates. 7. P.W.5 is an S.I. of Police, who was a member of the raiding party with P.W.9 and other personnel. He has deposed in the same line as that of P.W.9. He has also narrated that when the police party reached the cowshed in question, they found the accused preparing small packets. He also corroborates the evidence of P.W.9 with regard to query by P.W.9 to the accused of his right and his option to be searched in presence of an Executive Magistrate or Gazetted Officer. He also states that from personal search of accused nothing was recovered. From the cowshed a big polythene packet containing brown sugar wrapped by a newspaper and one small weighing scale and 100 gm. weight and six small polythene packets were recovered. He also speaks about the arrival of Executive Magistrate in whose presence the search was conducted and the arrival of the Scientific Officer (P.W.8), who drew two samples of 5 gms. each from the bulk brown sugar on the direction of P.W.9. He also corroborates evidence of P.W.9 about the packing, sealing and seizure of those materials by P.W.9. Nothing has been elicited in his cross-examination so as to doubt his veracity. P.Ws. 6 and 7 are two Assistant Sub-Inspectors of Police, who accompanied P.W.9 and were part of the raiding party. Their evidence is substantially similar to and fully corroborate the testimony of P.W.9 regarding search and seizure. The only discrepancy found in the evidence of P.W. 7 is that he stated that along with the polythene packet containing bulk brown sugar there were six small packets containing brown sugar and that before weighment, the brown sugar kept in those small packets was mixed with the bulk brown sugar kept in the other polythene packet. Inviting attention to this part of the evidence of P.W.7, which is inconsistent with the evidence of all other official witnesses including the Executive Magistrate and the Scientific Officer, the learned counsel for the appellant submits that because of such discrepancy in the prosecution evidence, the search and seizure should not be believed. Inviting attention to this part of the evidence of P.W.7, which is inconsistent with the evidence of all other official witnesses including the Executive Magistrate and the Scientific Officer, the learned counsel for the appellant submits that because of such discrepancy in the prosecution evidence, the search and seizure should not be believed. It appears that evidence of P.W.7 except this part is fully consistent with the evidence of other official witnesses. The mixing of contents of six small packets with the contents of bigger packet has not been spoken to by any other witness. Therefore, this appears to be a confused statement made by P.W.7 because of failure of memory and this cannot be a reason to disbelieve P.W.7 or the other official witnesses with regard to search, recovery and seizure of brown sugar and other articles from the spot. The Supreme Court in the case of Dalel Singh v. State of Haryana (2010) 1 SCC 149 has observed that discrepancies in statement of witnesses regarding weight of recovered charas could be attributable to failure of human memory, which is inconsequential. The evidence of the Executive Magistrate (P.W.10) and the Scientific Officer (P.W.8) is fully consistent with the evidence of P.Ws. 5, 6 and 9. The evidence of the Investigating Officer (P.W.11) reveals that on receiving V.H.F. message from P.W.9 he proceeded to the spot i.e., the cowshed and there P.W.9 handed over the plain paper FIR (Ext. 16/1) and seven sealed packets, the seizure list, the specimen seal impression, the written option given to the accused, zimanama and the spot visit report of the Scientific Officer, the requisition of the Sub-Collector and the arrest memo of the accused. P.W.9 directed him to take up investigation. Thereafter he (P.W.11) examined PW.9 and other witnesses and visited the spot and prepared spot map (Ext. 29). The seized sealed packets were kept in the police Malkhana. On 07.11.2002 P.W.11 forwarded the accused to the Court along with necessary documents. On that day he also brought the seized packets from the Malkhana to the Court of learned J.M.F.C. (R), Cuttack and made a prayer for sending the samples for chemical examination. On the direction of the learned J.M.F.C. he took back the sealed packets and again produced on 08.11.2002 before the J.M.F.C. which were sent under the J.M.F.C.'s forwarding letter vide Ext. 24 to the State Forensic Science Laboratory for chemical examination. On the direction of the learned J.M.F.C. he took back the sealed packets and again produced on 08.11.2002 before the J.M.F.C. which were sent under the J.M.F.C.'s forwarding letter vide Ext. 24 to the State Forensic Science Laboratory for chemical examination. The evidence of P.W.1 further reveals that on his prayer the Tahasildar deputed an Amin, who visited the spot along with some police personnel and demarcated the cowshed in question and submitted his report with a sketch map vide Exts. 26/1 and 26/2 respectively. Ext. 26/1 reveals that the cowshed in question is situated in plot No. 60 under Khata No. 147 of mouza Pratap Nagari, which is recorded jointly in the names of Kasinath Behera, Basudev Behera and others. On 11.01.2003, P.W.11 received the chemical examination report (Ext. 27) with the sealed packets from SFSL. He also effected seizure of the reports sent by P.W.9 to the S.P. under Sections 42 and 57 of the N.D.P.S. Act. After completion of investigation, he submitted charge-sheet against the accused. Nothing material has been brought out in the cross-examination of. P.W.11 to doubt his veracity. 8. P.Ws. 1 and 3, the independent witnesses are the co-villagers of the accused. P.Ws. 1 and 3 admit their signatures on the seizure list and other documents and materials but do not support the prosecution case that in their presence the search and seizure was made. They being the co-villagers of the accused the possibility of they being gained over by the accused to save him from penalty cannot be ruled out. 9. It is trite law that evidence of official witnesses can form the basis of conviction if it is clear, cogent, trustworthy and free from any infirmity, even though the independent witness do not support the prosecution case. The evidence of the official witnesses in the instant case is wholly clear and consistent and trustworthy and free from material discrepancy or contradiction. The presence of the independent witnesses (P.Ws. 1 and 3) cannot also be ruled out particularly when they have admitted their signatures on the seizure list and other documents. I am, therefore, fully in agreement with the finding of the Trial Court that the factum of search and seizure from the cowshed in question while the accused was present there has been established. 10. 1 and 3) cannot also be ruled out particularly when they have admitted their signatures on the seizure list and other documents. I am, therefore, fully in agreement with the finding of the Trial Court that the factum of search and seizure from the cowshed in question while the accused was present there has been established. 10. The contention of the learned counsel for the appellant that mandatory provisions of Sections 42 and 57 of the N.D.P.S. Act have not been complied with has no force for two reasons. Firstly, the interpretation of the nature of the provisions of Sections 42 and 57 of the N.D.P.S. Act have undergone a change. A Constitution Bench of the Supreme Court in the decision reported in 2009 (II) OLR (SC) 628 : (2009) 8 SCC 539 ; Karnail Singh v. State of Haryana have held that in special circumstances and emergent situations where recording of information as required under Section 42 of the N.D.P.S. Act is not practical prior to search and seizure, and would be detrimental to effectiveness of the search and seizure concerned, the requirement of writing down and conveying information to superior officer, may be postponed by a reasonable period which may even be after the search, entry and seizure. It has been further held that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The Court further went to hold that non-compliance of Section 42 may not vitiate the trial if it does not cause any prejudice to the accused. Similarly, the apex Court in the case reported in (2005) 8 SCC 725 ; Babubhai Odhavji Patel and others v. State of Gujarat have held that the provisions of Section 57 of the NDPS Act is not mandatory but only directory. Secondly, as has been seen from the discussion of the evidence of the witnesses above, P.W.9 recorded the information in the Station diary and sent a report to the Superintendent of Police, in the absence of the Circle Inspector, in compliance of the provisions of the Section 42 of the Act. Similarly, after arrest of the accused he also sent a report to the Superintendent of Police as required under Section 57 of the Act. The reports have been seized by the Investigating Officer during investigation and have been proved as Exts. Similarly, after arrest of the accused he also sent a report to the Superintendent of Police as required under Section 57 of the Act. The reports have been seized by the Investigating Officer during investigation and have been proved as Exts. 19 and 20. There is no reason to doubt the veracity of P.Ws. 9 and 11 and the genuineness of Exts. 20 and 19 as also the Station Diary Entry with regard to compliance of the provision of Sections 42 and 57 of the N.D.P.S. Act. 11. The chemical examination report of the State Forensic Science Laboratory vide Ext. 27 reveals that the packet containing brown sugar marked as Ext. A and the two sample packets marked as A-1 and A-2 and the brass weighing scale, etc. were found to contain diacetyl morphine (i.e., heroin). Learned counsel for the appellant submits that since the ownership over the cowshed from where the brown sugar was seized has not been established, it cannot be said that the seizure of the contraband article was from the exclusive and conscious possession of the appellant. Admittedly, the land on which the cowshed is situated stands recorded jointly in the name of the father of the appellant and his other co-sharers and, therefore, anything recovered from the cowshed cannot be impugned exclusively to the appellant or to anyone of the other co-sharers of the land in question. However, I am unable to accept the contention of the learned counsel for the appellant for the reason that even though there is no clear evidence that the cowshed belonged only to the appellant or was in his exclusive possession, but the consistent evidence is that the raiding party on their arrival discovered the appellant handling the brown sugar packet along with weighing scale etc. for preparing small packets and, therefore, even though the contraband articles had been kept inside the cowshed, the appellant must be held to be in exclusive and conscious possession of the said articles. For the reasons aforesaid, the conviction of the appellant under Section 21 (c) of the N.D.P.S. Act is well founded and calls for no interference. 12. for preparing small packets and, therefore, even though the contraband articles had been kept inside the cowshed, the appellant must be held to be in exclusive and conscious possession of the said articles. For the reasons aforesaid, the conviction of the appellant under Section 21 (c) of the N.D.P.S. Act is well founded and calls for no interference. 12. With regard to the last submission of the learned counsel for the appellant it is an admitted position that the appellant was arrested on 06.11.2002 and produced in Court on 07.11.2002 and was remanded to jail custody and since then is languishing in jail for the last ten years and three and half months. Having regard to the fact that the appellant was a Youngman of thirty years at the time of occurrence and that he has no previous conviction for any offence, while maintaining the substantive sentence of ten years under Section 21 (c) of the N.D.P.S. Act, which he has already suffered, I reduce the default sentence in lieu of fine to rigorous imprisonment for six months instead of three years as awarded by the Trial Court. With the aforesaid modification in sentence, the CRLA is dismissed. CRlA dismissed.