Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 681 (ORI)

State of Orissa v. Anil Kumar Gupta

2014-10-20

D.DASH

body2014
JUDGMENT The State in this appeal has called in question the order of acquittal dated 03.07.1995 passed by the learned Assistant Sessions Judge, Jeypore in S.C. No. 68 of 1994 acquitting the respondent of the charge under Section 20(b)(i) of the ND & PS Act, 1985. 2. The case of the prosecution in short is that on 28.03.1994 around 7.30 am, an information was received at Baipariguda police station, that one white Ambassador Car was proceeding towards Jeypore carrying contraband ganja. Therefore, S.I. of Police, Mr. Kartikeswar Samal, P.W.7 having entered the said fact in the station diary book of the police station proceeded with his staff for necessary detection, if any, and waited near forest check gate. Around 7.50 a.m., the Ambassador Car bearing registered No.MPJ 1918 came from Baipariguda side. Seeing the same, S.I. of police Mr. Samal gave necessary signal for the car to stop. But instead of it being obeyed, rather the car proceeded ahead. So, the police personnels had to chase the car by their jeep. Near State Bank colony inside the Jeypore Town, the car stopped and two occupants of the car immediately attempted to flee away. However, with possible effort only the respondent could be apprehended. The car was then inspected and some gunny bags were found in the dickey as well as the rear seat of the car; Those gunny bags were suspected to be containing ganja particularly in view of emission of peculiar smell. As large number of persons assembled at the spot, and as Holi festival was going on, the vehicle could not be further inspected at the spot and was taken to the police station where one Mr. Kumud Chandra Mallik, the Executive Magistrate was present. The car was then searched and in. the process eleven gunny bags and a tin box were recovered therefrom when on weighment, in total contents of those were found to be 168 kgs. It is stated that 50 grams of ganja was recovered from each of the bag and those were separated into two parts and then packed in 24 packets. The contraband ganja sample packets, car and one attache containing the wearing apparels of the respondent were seized. The personal search of respondent when was taken, some cash, gold chain, gold ring were recovered and those were also seized. It is stated that the sample packets were seized at the place. The contraband ganja sample packets, car and one attache containing the wearing apparels of the respondent were seized. The personal search of respondent when was taken, some cash, gold chain, gold ring were recovered and those were also seized. It is stated that the sample packets were seized at the place. S.I. Mr. Samal drew up the plain paper F.I.R. and handed over the same with other seized articles and contemporaneous documents to the IIC of the police station. On the basis of the same, necessary case was registered and further investigation was taken up. The gunny bags as well as tin box were sealed by the IIC using his personal seal and the sample packets were sent for chemical examination through S.D.J.M., Jeypore. On completion of investigation, charge-sheet being submitted, respondent faced the trial for commission of offence under section 20(b)(i) of ND & PS Act. 3. The respondent took the plea of denial and false implication in the case. Prosecution in order to establish the charge has examined altogether eight witnesses besides proving the documents; more importantly the plain paper F.I.R. Ext.5, seizure lists Ext. 1, 3/4, 4/4. The chemical examination report has been admitted in evidence and marked as Ext.7, when the copy of the letter forwarding the samples for chemical examination has been marked as Ext. 6. Respondent has examined none in defence. 4. The trial Court on analysis of evidence has arrived at a finding that there was seizure of 11 gunny bags and a tin box from the car and those were in conscious possession of the respondent. But then it having found the absence of satisfactory and acceptable evidence on the score that what was seized from the possession of the respondent was actually examined by the chemical examiner, the acquittal has been recorded with finding having been recorded as regards the non-compliance of the Section 50 and Section 55 of the Act and the search and seizure has thus been held to be illegal. 5. Learned Standing Counsel at the outset submits that, the compliance of mandatory provision of Section 50 of the Act is not required in the facts and 'circumstances of this case as it is not a case of search of 'person' but a case of search of a vehicle followed by the recovery and seizure of the gunny bags and tin box containing contraband ganja. It is his next submission that the trial Court has not appreciated the evidence on record in their proper prospective to arrive at a conclusion that what was seized from the conscious possession of the respondent was not actually analyzed by the chemical examiner. In this connection, he has placed the evidence of P.Ws. 5, 6 and 7 while simultaneously referring to the chemical examination report Ext. 7 as well as order-sheet of the learned S.D.J.M., Jeypore dated 31.03.1994. According to him, there remains no discrepancy in the evidence that those sample packets prepared at the spot and sealed were placed before the S.D.J.M. which were then forwarded to the chemical examiner. According to him, the evidence on record do satisfactorily establish that those sample packets collected from the gunny bags and tin box were actually analyzed by the chemical examiner and the provision of Section 55 of the Act have been duly complied with. Thus, he submits that it is a fit case for interference with order of acquittal in exercise of the power of this Court in seisin of an appeal against the said order of acquittal, as according to him, the order of acquittal is based on perverse appreciation of evidence on record. 6. Learned counsel for the respondent on the other hand supports the finding of the trial Court. According to him, the trial Court after due analysis of evidence on record both oral and documentary has rightly arrived at the conclusion as regards the non-establishment of the fact beyond reasonable doubt and what was seized as the contraband item from the car was not analyzed and thus Ext. 7, the report cannot be pressed into service. He further submits that the evidence on record clearly suggest total non-compliance of the mandatory provision of Section 55 of the Act. Of course he fairly submits that in the facts and' circumstances of this case and in view of the settled law as it is not a case of search of 'person', the provision of Section 50 of the Act do not stand for compliance and on failure of its Compliance, the search and seizure here is not vitiated. 7. Of course he fairly submits that in the facts and' circumstances of this case and in view of the settled law as it is not a case of search of 'person', the provision of Section 50 of the Act do not stand for compliance and on failure of its Compliance, the search and seizure here is not vitiated. 7. Before going to take up the exercise of appraisal of evidence 'in the light of the rival submission as advanced and stated in the foregoing paragraph, it is felt apposite to take note of the power of this Court to interfere with an order of acquittal in seisin of an appeal against the same. 8. Keeping in view the rival submission, before going to take up the exercise in the matter to appreciate the evidence, It is felt to apposite to take note of the settled position of law with regard to power of this Court to interfere with the order of acquittal. It has been held in case of Basappa v. State of Karnataka, (2014) 57 OCR1044 that the High Court in an appeal under Section 378 Cr.P.C. is entitled to reappraise the evidence and put the conclusions drawn by the trial Court to test but the same is permissible only if the judgment of the trial Court is perverse. Relying the case of Gamini Bala Koteswara Rao and others v. State of Andhra Pradesh, (2009) 10 SCC 639, it has been held that the word "perverse" in terms as understood in law has been defined to mean 'against weight of evidence'. In K. Prakashan v. P.K. Survenderan, (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. It has been clarified that if two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref. T.Subramaniam v. State of Tamil Nadu, (2006) 1 SCC 401 ). Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial Court is one which no reasonable person would in the given circumstances, take (Ref. Bhima Singh v. State of Haryana, (2002) 10 SCC 461); 9. T.Subramaniam v. State of Tamil Nadu, (2006) 1 SCC 401 ). Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial Court is one which no reasonable person would in the given circumstances, take (Ref. Bhima Singh v. State of Haryana, (2002) 10 SCC 461); 9. 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 and safe custody of the seized articles were sent for chemical analysis by adducing unimpeachable evidence leaving no scope of suspicion. 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 SCC 277, Bhimsen Sahoo v. State of Orissa, (1997) 12 OCR 443 and Ram Bahadur Pandey v. State of Orissa, 2009 (Supp.1) OLR 306 : (2009) 43 OCR SC 466 besides the decisions reported in case of Sk. Faiaz Vs. State of Orissa, 2010 (II) OLR 237 : (2010) 46 OCR 855, Jadaba Dehury @ Deheri V. State of Orissa, 2009 (II) OLR 466 (2009) 44 OCR 320 may be referred to. 10. In the casein hand, it is the evidence of P.W.6 and 7 that from each of the bag and box, 25 grams of out of their contents were removed twice and two separate samples packets were prepared for each totalling to 24 sample packets. So, the evidence of P.W.6 and 7 is on the score that removal for the purpose of sample from each packets and box were in two phases whereas the evidence of P.W.5 is that out of contents of 50 grams of ganja from each bag and box were removed. So there remains the variance in the evidence of P.W.6 and 7 on one hand and P.W.5 on the other with regard to manner of collection from the contents of the bags and tin for the purpose of samples. So there remains the variance in the evidence of P.W.6 and 7 on one hand and P.W.5 on the other with regard to manner of collection from the contents of the bags and tin for the purpose of samples. Now when the evidence is seen with regard to the sealing, again the variance remains that when P.W.6 and 7 state that M.O.I to XII and 24 sample packets were sealed by P.W.7 with personal seal, evidence of P.W.5 is that those were sealed with the personal seal of IIC, Jeypore P.S. P.W.7 states to have sealed those using his personal seal but he has not so stated in the F.I.R. Ext. 5. So, the view taken by the Trial Court that, the M.Os. - I to XII and sample packets were sealed by the Seizing Officer at the time of seizure has not been established thus cannot be found fault with. The sample bags were sent for chemical examination on 31.03.1994, three days after the occurrence and no explanation is given with regard to such delay. In such a state of affairs in the evidence, when the trial Court has failed to arrive at a conclusion in the certainty that what was seized from the possession of the respondent was actually analyzed by the chemical examiner to have been established, this Court find no such justifiable reason to differ with the same. The trial Court thus appears to have rightly arrived at a conclusion that prosecution has failed to prove this aspect of the case with clear, cogent and acceptable evidence to fasten guilt upon the respondent for the purpose of holding him to have been in possession of the ganja as per the case projected by the prosecution. In view of above, in my considered view, the prosecution has failed to establish the factum of collection of samples, proper sealing of the seized articles so as to establish beyond reasonable doubt that the articles recovered from the possession of the respondent were the subject matter of chemical examination for the examination report, Ext.7 to form the basis in establishing the required nexus. Therefore, the ultimate result rendered in the trial acquitting the respondent of the charge is not found to be amenable to interference in this appeal. 11. In the result, the appeal stands dismissed.