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2013 DIGILAW 81 (ORI)

Bulu alias Amulya Swain v. State of Orissa

2013-03-22

B.K.NAYAK

body2013
JUDGMENT In this Jail Criminal Appeal the appellant challenges the judgment and order dated 20-9-2008 passed by the learned Additional Sessions Judge-cum-Special Judge, Jaipur in G.R. Case No. 1241 of 2000 convicting the appellant under S. 21(c) of the N.D.P.S. Act and sentencing him to under R.I. for twenty years and to pay a fine of Rs. 1,00,000/-, in default to suffer R.I. for six months more. 2. The prosecution case in a nutshell is that Mr. S. K. Mallik, S.I. of Police, Barchana Police Station (P.W. 9) while present in Byree Outpost on 24-12-2000 at about 11.30 a.m. received reliable information to the effect that the accused-appellant was dealing in brown sugar and was present at Gopapur, Chhatia to sell brown sugar to different customers. P.W. 9 entered the fact in Byree Outpost Station Diary vide Entry No. 409 dated 24-12-2000 and intimated the fact to I.I.C., Barchana Police Station, who is his immediate superior. He also issued a requisition to Tahasildar to depute one Executive Magistrate to remain present during search and seizure. At about 3.00 p.m. Sri. U.C. Patra, Additional Tahasildar, Darpan (P.W. 3) arrived at Chhatia along with Sri. Gunamani Nayak, A.S.I. of Police of Bayree Outpost, Constable, Sachidananda Bisoi and G. R., Arun Pradhan along with a section of Armed Force and they all proceeded to Gopapur and located the house of the appellant which was identified by witnesses, Ratnakar Sethy and Santosh Patra. The appellant was in his house and P.W. 9 explained to him the purpose of visit of the police party. P.W. 9, P.W. 3 and other police personnel thereafter gave their personal search before the appellant and thereafter P.W. 9 searched the bedroom of the appellant and recovered two packets, which had been kept on the floor adjacent to the cot. The said two packets contained brown sugar. P.W. 9 thereafter requisitioned the services of a goldsmith, namely, Laxmidhar alias Sujeet Kumar Sahoo, who arrived at the spot with his weighing balance and weights. Out of the two packets, one was yellow in colour and the other packet was brown in colour. The contents of the yellow packet was weighed by the goldsmith in presence of the witnesses which came to 650 gms. Out of the said 650 gms four samples of 5 gms each were drawn and they were packed in polythene covers. The balance brown sugar of 630 gms. The contents of the yellow packet was weighed by the goldsmith in presence of the witnesses which came to 650 gms. Out of the said 650 gms four samples of 5 gms each were drawn and they were packed in polythene covers. The balance brown sugar of 630 gms. was pakced in another polythene cover and was kept in a paper casket which was covered with long cloth, stitched and sealed in presence of the witnesses, Magistrate and the accused. Each of the four sample packets was kept inside a paper cover and was sealed in similar process. The contents of the brown packet was thereafter weighed by the goldsmith which came to 1240 gms. and out of the same, four samples of 5 gms. each were drawn and kept in four separate polythene covers. The sample packets and the balance brown sugar were each again separately packed in paper packets and sealed in presence of the witnesses and the accused. One small weighing balance and three stone weights belonging to the accused were available near the brown sugar packets. They were also taken to a polythene cover and thereafter put in a paper packet, which was duly sealed. P.W. 9 also took specimen impression of the seal on two pieces of white papers, which were signed by the witnesses and the accused. The brown sugar packets along with the samples were seized by P.W. 9 and a seizure list was prepared and copy of the seizure list was handed over to the accused after obtaining his signature and acknowledgment on the seizure list. The brass seal used for sealing the seized materials was left in zima of one Bansidhar Pradhan. The accused did not have any licence or authority to possess the brown sugar for which P.W. 9 arrested him on the same day. He also drew the plain paper F.I.R. and submitted before the I.I.C., who registered the case. During investigation by the I.I.C. of the Police Station, it was ascertained that co-accused, Radhu alias Radhashyam Sahu had sold the brown sugar in question to the present appellant. After completion of investigation, charge-sheet was submitted against the appellant and the co-accused-Radhashyam under Ss. 21, 22 and 29 of the N.D.P.S. Act. The plea of the accused persons was a denial of the occurrence and the prosecution allegations. 3. After completion of investigation, charge-sheet was submitted against the appellant and the co-accused-Radhashyam under Ss. 21, 22 and 29 of the N.D.P.S. Act. The plea of the accused persons was a denial of the occurrence and the prosecution allegations. 3. In order to establish the charges against the accused persons, the prosecution examined ten witnesses in all. P.W. 9 is the S.I. of police and the informant, who conducted the search and seizure along with other police personnel. P.Ws. 1 and 7 are seizure witnesses. P.W. 7 also took weighment of the seized brown sugar. P.W. 2, Baidhar Pradhan is the Zimadar in respect of the brass seal used by P.W. 9 for sealing the seized articles. P.W. 3 is the Executive Magistrate. P.W. 4 was a tenant of the accused-appellant. P.W. 6 was the Sarpanch of Chhatia Grama Panchayat. P.W. 6 is the then A.S.I. and a member of the raiding party. P.W. 8 is an independent witness. P.W. 10 was the I.I.C., Barchana Police Station and the Investigating Officer. The accused persons did not lead any evidence in support of their defence. 4. On consideration of the evidence, the trial Court found the co-accused, Radhashyam not guilty of the charges. It also found the accused-appellant not guilty of the offence punishable under S. 22 of the N.D.P.S. Act. However, it found the accused-appellant guilty of offence punishable under S. 21(c) of the N.D.P.S. Act and accordingly convicted and sentenced him as aforesaid. 5. The learned counsel for the appellant has raised the following contentions : (i) There is non-compliance of the statutory provisions of S. 42 of the N.D.P.S. Act and as such the prosecution is vitiated; (ii) there is no proof of conscious and exclusive possession of the Narcotic Drugs by the appellant; (iii) The weighment of alleged contraband article is not proved; and (iv) In view of grave discrepancies and contradictions in the evidence of prosecution witnesses, the factum of search, recovery and seizure of brown sugar cannot be believed. Learned State Counsel, on the other hand, submits that there is no infirmity in the impugned judgment. 6. Learned State Counsel, on the other hand, submits that there is no infirmity in the impugned judgment. 6. With regard to the question of non-compliance of the statutory provision of S. 42 of the N.D.P.S. Act the learned counsel for the appellant submits that it is only an officer empowered either by the Central Government or by the State Government by general or special order who may search any place, building or conveyance, if he has reason to believe that offences punishable under the Act has been committed and such empowered officer may between sunrise and sunset enter into such building or place and seize any material or article and detain or arrest any such person whom he has reason to believe to have committed an offence punishable under the Act, and that in the instant case the prosecution has not adduced any evidence to substantiate that P.W. 9, the S.I. of Byree Outpost had the authority or was empowered to conduct the search and effect seizure of the alleged narcotic drugs from the house of the appellant. 7. The contention has no force inasmuch as the State Government has already issued order vide Gazette Notification dated 29-7-1988 describing the category of officers, who are authorised and empowered to act under S. 42 of N.D.P.S. Act. As per the notification, S.I. of Police is an empowered officer. The notification has statutory force and the knowledge of the matter will be imputed to every body. Besides, no question has been put to P.Ws. 9 and 10 in cross-examination challenging the authority of P.W. 9 to conduct search of house and effect seizure of any Narcotic Drug or Psychotropic Substance. 8. It is now to be seen whether the prosecution has been able to prove the factum of search, recovery and seizure of brown sugar from the house of the appellant beyond all reasonable doubt. P.W. 9 is the S.I. of Police, who conducted search and seizure after getting reliable information. 8. It is now to be seen whether the prosecution has been able to prove the factum of search, recovery and seizure of brown sugar from the house of the appellant beyond all reasonable doubt. P.W. 9 is the S.I. of Police, who conducted search and seizure after getting reliable information. He has stated in his evidence that on the date of occurrence at about 11.30 a.m. while he was present in the outpost received reliable information that the accused was dealing in brown sugar in his house and accordingly he made an entry to that effect in the station diary of the Outpost vide Entry No. 409 dated 24-12-2000 and sent intimation about the information to his superior, i.e., the Inspector-in-charge of Barachana Police Station (P.W. 10). He also proved the station diary entry vide Ext. 2 and his report to I.I.C.vide Ext. 3, which show that the information related to dealing in brown sugar by the appellant in his house at Gopapur, Chhatia. It is also stated by P.W. 9 that he requisitioned the service of an Executive Magistrate and accordingly P.W. 3 the Additional Tahasildar, Darpan arrived at Chhaita at about 3.00 p.m. and that P.W. 9, P.W. 3, the A.S.I. of Police (P.W. 6) and independent witnesses, namely, Ratnakar Sethy and Santosh Patra entered inside the house of the accused, searched his bed room and recovered two polythene packets from under the bed of the appellant. Out of the two packets, one contained yellow colour powder and other one brown colour powder. He also stated to have recovered a small weighing instrument with three stone pieces used as weights and one polythene bundle from near the two polythene packets containing brown sugar. With regard to the house, it is the prosecution case and the evidence of P.W. 9 that it is situated at Gopapur, Chhatia. The evidence of P.W. 3, the Executive Magistrate reveals that on being directed by the Tahasildar, Darpan at about 3.00 p.m. he reached at Barachana Police Station and therefrom he was taken by the Inspector-in-charge (IIC) of the Police Station in his jeep to Chhatia Outpost from where the IIC picked up the S.I. of Police and some constables and all of them proceeded to the house of the appellant in village-Sapanpur and on the way to Sapanpur, the IIC called two outsiders. It is also stated by him that the IIC called the owner of the house to come out and appellant-Amulya Swain came of the house, whereafter the IIC gave the appellant their identity and after observing all formalities of personal search etc. searched the house of the appellant and from his bed room he recovered a polythene bag containing two polythene packets kept under the bed sheet. In his cross-examination, he has stated in paragraph 6 that he could not say whether Gopapur and Sapanpur are two separate revenue villages, but he heard from the people that Gopapur and Sapanpur are one and the same village. This evidence runs contrary to the evidence of P.Ws. 9, 10 and 6, who deposed that the house of the accused in Gopapur was searched. The evidence of P.W. 5, who is the Sarpanch of Chhatia Grama Panchayat, reveals that villages, Gopapur and Sapanpur are two distinct and separate revenue villages and the distance between the two villages is one and half kms. and both the villages come under two separate Grama Panchayats. The inconsistency in evidence of P.W.3 and P.W. 5 raises a doubt about the actual presence of P.W. 3 at the time of search and seizure as because the search was not made in village Sapanpur nor it was conducted by the Inspector-in-charge of Barchana Police Station. As per the prosecution case and the evidence of P.Ws. 9 and 10, the I.I.C. had not accompanied P.W. 9 and the other police party at the time of search and seizure. He only investigated the case after search and seizure was effected and F.I.R. was lodged by P.W. 9. Similarly with regard to the particular room which was searched, it has been stated by P.W. 3 in his cross-examination that it was the first room on the left side after the main entrance door which was searched and from where recovery was made. The evidence of P.W. 4, who is a tenant under the appellant in respect of two rooms in the very house, reveals that he occupies two rooms located to the immediate left to the entrance and that the appellant resides in one room abutting to the second tenanted room of P.W. 4. The evidence of P.W. 4, who is a tenant under the appellant in respect of two rooms in the very house, reveals that he occupies two rooms located to the immediate left to the entrance and that the appellant resides in one room abutting to the second tenanted room of P.W. 4. Although, he has been cited by the prosecution as a witness, who was present during the time of search, P.W. 4 has denied to have been examined by the Investigating Officer in connection with the case. Rather the evidence of P.W. 9 in the cross-examination goes to show that there were all total ten rooms in the house in question and the appellant was in possession of a room on the western wing of the house and the other rooms had been let out by him. His evidence reveals that the house in question is a lodge and his specific testimony is that none of the occupants of the lodge was present at the time of search and seizure. It is not understood as to how, P.W. 4, who is a tenant in respect of the house in question, has been cited by the I.O. as an eye-witness. In the face of such evidence of P.W. 9, there is direct conflict in the evidence of P.Ws. 3 and 4 about the room which was in occupation of the appellant and was searched. P.W. 3, the Executive Magistrate also states that the seized articles were sealed by the IIC, but he could not say whether it was the personal seal of the IIC or official seal of the police station which was used. With regard to sealing of the seized brown sugar and the samples said to have been taken there from P.W. 9 states that it was his brass seal by which he sealed the brown sugar packets, the sample packets, and the other articles and M.O.I. contained the specimen impression of his seal. P.W. 6 is the A.S.I. of Police. He gives a different story stating that the seized contraband packets were sealed by the use of his own brass seal. He does not speak of use of the personal seal of P.W. 9 or that of P.W. 10. Therefore, there is grave discrepancy in the evidence with regard to the sealing of the seized articles. He gives a different story stating that the seized contraband packets were sealed by the use of his own brass seal. He does not speak of use of the personal seal of P.W. 9 or that of P.W. 10. Therefore, there is grave discrepancy in the evidence with regard to the sealing of the seized articles. It is thus seen that there is grave discrepancy and inconsistency in the evidence of P.Ws. 3, 6, 9 and 10 with regard to the location of appellant’s house in question that was searched. Similarly, there is also discrepancy in the evidence with regard to the particular room in the house which was searched and from where the contraband articles were recovered and seized. There is also material discrepancy with regard to the actual search and seizure, whether it was done by P.W. 9 or P.W. 10. Similarly, there is also grave discrepancy in the evidence of official witnesses with regard to the sealing of the seized articles. There is also discrepancy in the evidence as to the number of polythene packets containing brown sugar which were recovered. While P.W. 9 and P.W. 3 state that two packets were recovered, P.W. 6 the A.S.I. states that three polythene packets were recovered and in one packet there was yellow colour powder whereas in two other packets there was brown colour powder. The other discrepancy relates to the exact place where from the contraband articles were seized. While P.W. 9 states that he recovered the packets from under the bed of the accused, P.W. 6 has stated that they were recovered from under a bed sheet. 9. Added to the discrepancies noticed above, the prosecution also suffers from other infirmities. P.W. 1 is said to be an independent eye-witness to the occurrence. He has turned hostile and did not support the prosecution case. The other eye-witness, Santosh Patra has not been examined by the prosecution for the reasons best known to it. It transpires from the evidence of P.W. 6, the A.S.I. of police that the house in question was identified by the local Gramarakhi, Arun Pradhan, but the said Gramarakhi has not been examined by the prosecution. 10. The other eye-witness, Santosh Patra has not been examined by the prosecution for the reasons best known to it. It transpires from the evidence of P.W. 6, the A.S.I. of police that the house in question was identified by the local Gramarakhi, Arun Pradhan, but the said Gramarakhi has not been examined by the prosecution. 10. No independent witness having supported the prosecution case and the gave discrepancies in the evidence of the official witnesses as also the other infirmities noticed above create grave doubt about the factum of search and seizure and recovery of the contraband brown sugar. Therefore, it must be held that the prosecution has failed to prove its case beyond all reasonable doubt. The benefit of such doubt would definitely go in favour of the appellant. 11. P.W. 7 is said to be the goldsmith, who on police requisition weighed the contraband brown sugar. P.W. 7, however, does not support the prosecution case. He only states that the police called him to Barchana Police Station and obtained his signature on a piece of paper without disclosing the reason thereof. In cross-examination by the prosecutor, he has denied to have been examined by the police and to have weighed the contraband articles. In cross-examination by the defence he has stated that he signed on Ext. 1 due to threats given by the IIC, Barchanad Police Station (P.W. 10). Though P.W. 9 claims that P.W. 7 weighed the contraband articles, neither his evidence nor the evidence of any other witness reveals whether P.W. 7 came with any weighing balance and weights for measurement. 12. Since the factum of search and seizure of the contraband articles is disbelieved, it is not necessary to deal with other contentions raised by the learned counsel for the appellant. 13. In the light of the discussions made above, I find the accused not guilty of the charge under S. 21 of the N.D.P.S. Act and accordingly, the Jail Criminal Appeal is allowed and the impugned order of conviction and sentence is set aside. The appellant be set at liberty forthwith unless his detention is required in connection with any other case. Appeal allowed.