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2014 DIGILAW 253 (ORI)

State of Orissa v. Sunil Kumar Kar

2014-04-11

D.DASH

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JUDGMENT The State has called in question the order of acquittal passed by the learned Additional Sessions Judge, Jeypore acquitting the respondent of the charges under Section 20(b)(1) of NDPS Act, 1995. 2.Case of the prosecution in short is that on 05.03.1993 about 4.45 am., when the Officer-in-Charge Baipariguda Police Station along with his staff were on patrolling night duty in the State Highway near village Papdajodi, a Maruti van bearing registration No. OAS-7405 came from Malkangiri side and signal being given, the van stopped. The respondents were found to be there inside the van. The vehicle on being inspected, two gunny bags said to be containing ganja were recovered from the dickey of the van. The respondents could not produce any authority for transporting the ganja in the bag. So, in presence of the Medical Officer of Dusmanthpur Subsidiary Health Centre and two local witnesses, the seizure was made and the gunny bags were found to contain 23 kgs. of ganja. An attached was also recovered carrying case of Rs.7,3000, documents relating to the vehicles and also some wearing apparels were found. The Officer-in-Charge then seized this gunny bags containing ganja, the van and other documents under seizure list. It is then stated that samples were collected from the bags and were sent for chemical examination through Court. Drawal of the F.I.R. led to the registration of the case and on completion of the same, the respondent faced the trial. 3.The plea of the respondents is one of complete denial and false implication. 4.Prosecution in order to bring home the charge against the respondents has examined six witnesses out of whom P.W.5 is the Investigating Officer, P.W.1 is the Constable, P.W.2 is Medical Officer in which presence the search and seizure are said to have been made, P.W.3 and 4 are the local witnesses present and the time of search at seizure and P.W.6 is the Circle Inspector of Police who finally submitted the charge-sheet. Defence in the case has not examined any witnesses despite of being given the opportunity. 5.The trial Court on the basis of evidence has arrived at a conclusion that the two gunny bags were recovered from the van wherein the respondents were present at the time of interception of the said van. Defence in the case has not examined any witnesses despite of being given the opportunity. 5.The trial Court on the basis of evidence has arrived at a conclusion that the two gunny bags were recovered from the van wherein the respondents were present at the time of interception of the said van. Next going to the question of collection of sample and examination of this same by the chemical analysis doubt has been entertained in view of lack of evidence on record that the samples those were collected from those gunny bags said to be containing 23 kgs. of ganja of were actually examined by Chemical Examiner. With this doubt ultimately the trial Court has acquitted the respondents. In other words the Trial Court had acquitted the respondents on the ground of finding it difficult to hold on the basis of the evidence that samples being taken from what was actually seized from the possession of the respondents from inside the gunny bags were actually placed before the Chemical Examiner. Therefore, he has found the report of the Chemical Examiner to be not having nexus with this seized contraband. The other ground on which the acquittal has been recorded is one of noncompliance of the mandatory provisions of the Section 50 of the Act. 6.Learned Counsel for the State submits that in view of the present position of law that provision of Sec.50 of the Act although mandatory gets attracted in respect of search of ‘person’ and the search in the present case having been made by way of recovery of the bags containing ganja from the vehicle provisions of Section of the Act does not get attracted. Therefore, he attacks the ground of acquittal as recorded by the Trial Court for non-compliance of the Section 50 of the Act as unsustainable in the eye of law. His next submission is that the evidence on record has not been properly analyzed by the Trial Court to come to a conclusion that the sample taken from the gunny bags were actually not placed before the Chemical Examiner. His next submission is that the evidence on record has not been properly analyzed by the Trial Court to come to a conclusion that the sample taken from the gunny bags were actually not placed before the Chemical Examiner. The evidence on record according to learned counsel for the State is overwhelming on the score that the police officer seizing the bags containing the contraband had collected samples, sealed it properly and then all through it was properly maintained as it is in safe custody without being tampered in any way up-till the same got placed on the table of the Chemical Examiner for analysis. The Trial Court according to him without properly appreciating the evidence and in a slipshod manner has jumped to the conclusion in favour of the respondents in holding the evidence on that score as deficient. So he submits that it is a fit case for interference with the order of acquittal by this Court to prevent miscarriage of justice. Learned Counsel appearing for the respondents submits that in the present case the finding of the Trial Court with regard to the factum of sampling, sealing and then sending those for chemical analysis have been properly analyzed and examined by the Trial Court to arrive at a conclusion that the evidence is not enough to strictly establish the facts as required and the question of tampering with the sample is not altogether ruled out. Therefore, the order of acquittal recorded on this ground is unassailable. Of course as regards the non-compliance of the provision of Sec.50 of the Act; he rather concedes to the submission of the learned Counsel for the State. 7.In view of such rival submissions first the question requires to be considered in the present case is the aspect of the proper sampling, sealing and safe keeping till it was placed before the Chemical Examiner so as to fasten the guilt upon the respondents in saying that the samples were duly collected from those contents of the bags which were seized from the possession of the respondents and the same were maintained as it is till the examination by the Chemical Examiner, overruling the possibility of tampering so that the report of Chemical Examiner would establish the factum of seizure of ganja from the possession of these respondents. 8.It is the settled position of law that the prosecution is required to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets by the Investigating or any third agency and the same was the vary articles produced before the Magistrate and sent for chemical analysis. It has also to be established that there was proper sealing any safe custody of the seized articles so that articles examined in the laboratory can be relatable to the articles seized. It is the burden of the prosecution to prove that the seized articles were sent for chemical analysis by adducing unimpeachable evidence leaving no scope of sucpicion. Criminal trial does not admit any gap or missing link. In this connection the decisions in case of Valsala v. State of Kerala; (1993) 6 OCR (SC) 457, Sinic Patricia v. State; (1994) 7 OCR 277, Bhimsen Sahoo v. State of Orissa; (1997) 12 OCR 443 and Ram Bahadur Pandey v. State of Orissa;* (2009) 43 OCR, SC 466 besides the decisions reported in case of +Sk. Faiaz v. State of Orissa; (2010) 46 OCR 855, ^Jadaba Dehury @ Deheri v. State of Orissa; (2009) 44 OCR 320 may be referred to. 9.In the case in hand, the evidence is not on the score that the seized ganja bags and sample packets collected from out of the same were sealed using the personal seal of the Seizing Officer. It has been stated that the same has been seized by using a 50 paisa coin which is commonly available. Even if, it is accepted that it was so done as personal seal was not available then, in that event the procedure could have been followed thereafter by further resealing on getting the immediate scope. No such evidence is forthcoming in the case. The sample ganja packets and the seized bags containing contraband ganja were produced before the S.D.J.M., Jeypore on 06.03.1993 and the order sheet on 06.03.1993 does not at all reflect that the seized ganja bags and sample packets were bearing the seal being in tact at the time of their production. No such evidence is forthcoming in the case. The sample ganja packets and the seized bags containing contraband ganja were produced before the S.D.J.M., Jeypore on 06.03.1993 and the order sheet on 06.03.1993 does not at all reflect that the seized ganja bags and sample packets were bearing the seal being in tact at the time of their production. There is also no evidence to show that the samples were sealed with the seal of the seizing officer in accordance with the mandatory provision of Sec.55 of the Act even at a later stage and the specimen of such seal was produced before the S.D.J.M. for comparison. It cannot therefore be said that in such circumstances with certainty that what was seized from the possession of the accused persons were actually analyzed by the Chemical Examiner. The samples were taken on 05.03.1993 and sent for chemical analysis on 06.03.1993. There remains no evidence as to where and in whose control those remained. This raise doubt in mind hen the scope of tampering with samples and maddling with the seized articles not altogether ruled out. The Trial Court thus appears to have rightly arrived at a conclusion that the prosection has failed to prove this aspect of the case which clear, cogent and acceptable evidence to fasten the guilt upon the respondents for the purpose of holding them to have been in possession of the ganja as per the case projected by the prosecution. 10.In view of above, in my considered view the prosecution has failed to establish the factum of proper sealing and safe custody of the seized articles so as to establish beyond reasonable doubt that articles recovered from the respondents were the subject matter of the chemical examination for the examination report Exhibit 7 to form the basis in establishing the required nexus. Therefore, the ultimate result rendered in the trial acquitting the respondents of the charge is not found to be amenable to interference in this appeal. 11.In the result the appeal stands dismissed. Appeal dismissed.