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2015 DIGILAW 200 (ORI)

State of Orissa v. Buti Bhotra

2015-03-25

D.DASH

body2015
JUDGMENT The State has called in question the order of acquittal passed by the learned Sessions Judge, Kotapur-Jeypore in S.C. No. 377 of 1994 acquitting the respondent of the charge under Section 20(b) (i) of N.D. & P.S. Act. 2. The prosecution case is that on 27.08.1994, P.W. 7 being the Officer-in-charge of Kotpad Police station having received reliable information about transportation of ganja by 25 to 30 persons of village Baragaon from Chitrakonda side through Surli and proceeded with his staff to village Surli. On 28.08.1994 about 6.00 A.M 26 persons carrying Kaudi Bhara proceeded towards Baragaon side. They were chased. The respondent was napped by A.S.I. of Police, P.W.4. In the Bhara that he was holding ganja was found to be there. On weighment, the contents came to 24 kgs which were seized under proper seizure list. The samples were collected in two packets, each contains 25 grams, those were sealed and sent for chemical examination. The report came in the affirmative. So, the charge sheet being laid, the respondent ultimately faced the trial. 3. In the trial, the respondent’s plea was that of denial and false implication. 4. The prosecution in order to establish the charge against the respondent for commission of offence punishable under Section 20 (b)(i) of N.D. & P.S. Act, examined in total seven witnesses Out of whom as already stated P.W.4 is the A.S.I. of Police who napped the respondent. P.W. 7 is the I.I.C. of Police, who is the Investigating Officer, was the leader of the police party. P.Ws.1 is the A.S.I. of Police who was a member of the party and Circle Inspector of Police is the P.W.2 who is the investigating officer, who are the members of the raiding party and P.W.3 is the Ward Member. P.W.4 is another police personnel. P.Ws. 5 and 6 are two independent witnesses. Besides the above, documents such as seizure list, Chemical Examiner’s report etc. have also been proved. 6. The trial Court upon evaluation of the evidence has ultimately come to the conclusion that the prosecution has failed to establish the factum of seizure of ganja from the possession of the respondent, i.e. while he was carrying the same in the Bhara at the time when he was napped by P.W. 4. have also been proved. 6. The trial Court upon evaluation of the evidence has ultimately come to the conclusion that the prosecution has failed to establish the factum of seizure of ganja from the possession of the respondent, i.e. while he was carrying the same in the Bhara at the time when he was napped by P.W. 4. For this purpose, he has entertained a great doubt that the factum of seizure from the possession of the respondent, even if believed the samples from being taken from it have been placed before the chemical examiner for examination i.e. the samples sent to the chemical examiner for examination have not been proved to have been those as duly collected at the spot following the mandatory provision of law from that Bhara said to have been carried by the respondent at the relevant point of time. The evidence of prosecution according to the trial Court with regard to safe keeping of sample packets and showing total absence of scope of being meddled in between time of the seizure and production in Court are wholly unsatisfactory. 7.Learned counsel for the State submits that in the present case there remains no material on record to suggest that these police personnels were in any way bearing grudge against the respondent, so as to have even the tendency to falsely implicate him in a case by this nature. Therefore, he contends that the action of the police personnel could not have been suspected right from the beginning. Of course he fairly concedes on the point in the present case that the sample packet has been sealed by using coin of 25 paisa denomination which is commonly available at any time with anybody. But that according to him is not the ground to hold that the sample packet was not collected from the contents of the Bhara carried by the respondent. According to him, as the sample packets have not been reported by the chemical examiner to have been tampered in any manner and also by the Magistrate not so noticed. So, he contends that no doubt ought to have been entertained that the packet has been meddled in between. According to him, as the sample packets have not been reported by the chemical examiner to have been tampered in any manner and also by the Magistrate not so noticed. So, he contends that no doubt ought to have been entertained that the packet has been meddled in between. According to him, when as regards the preparation of seizure and collection of sample, then sealing of the sample packets by using coin of 25 paisa denomination stand proved, there remains no ground to disbelieve the prosecution version. This he contends that it is a fit case for interference with the order of acquittal. Learned counsel for the respondent, on the other hand supports the finding rendered by the trial Court in paragraph-13 of the judgment. He contends that the trial Court has rightly entertained doubt in mind in ultimately not accepting the case of the prosecution that what was seized from the possession of the respondent was sent for chemical examination. Therefore, he contends that the appeal bears no merit. 8.Before going to re-appreciate the evidence in the light of the contentions as advanced, it is felt apposite to take note of the settled position of law with regard to the scope and power of this Court for interference with the order of acquittal. It has been held in case of Basappa Vrs. State of Karnataka; (2014) 57 OCR 1044 that High Court in an appeal under Section 378 Cr. P.C. is entitle 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-Vrs. 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 Vrs. P.K. Survenderan; (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because anther 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 Vrs. State of Tamil Nadu; (2006) 1 SCC 401 ). 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 Vrs. 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 Vrs. State of Haryana; (2002) 10 SCC 461). 9.Keeping the aforesaid position of law in mind and in view of the rival submissions, the evidence on record need re-appraisal, so as to judge the defensibility of the order of acquittal. 10.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 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 suspicion. Criminal trial does not admit any gap or missing link. In this connection the decision in case of Valasala v. State of Kerla; (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. The sample packets have been sealed by using coin of 25 paisa denomination which is commonly available everywhere and it is also easily procurable. Faiaz v. State of Orissa; (2010) 46 OCR 855, *Jadaba Dehury @ Deheri v. State of Orissa; (2009) 44 OCR 320 may be referred to. The sample packets have been sealed by using coin of 25 paisa denomination which is commonly available everywhere and it is also easily procurable. It is not the evidence of P.W. 7 that he had put some special mark on the coin, so that it could have been taken as the special coin of 25 paisa denomination used for the purpose and not being available by any of her later. Here actually the sizing officer has thus failed in his duty and as it appears has not applied mind to it. It is true that at times, the personal seal or any other special seal might have not been available with the police officer for the purpose, but in that event he can create a special devise for the purpose, so as to remove the doubt in the mind of everybody in meddling of the sample packets to sealed. Moreover in his evidence he stated that the sample packets were kept in Police Station Malkhana. Although he has deposed to have been submitted the written report to the Circle Inspector as regards pending of his case. On 29.08.1994, the Circle Inspector of Police, P.W. 2 has taken over all charge of the investigation. He having stated to have found sample packets with seal intact has not uttered whether it was sealed by using 25 paisa coin denominations. The person who was given in zima of 25 paise coin denominations. The person who was given in zima of 25 paise coin has not supported the prosecution case. The report of the chemical examiner is also silent on that score and rather it is said that he found the impression of a seal over the sample packets so also it is not indicated by the learned Magistrate. So in the present case, the prosecution has not laid satisfactory evidence to overrule the possibility of tampering or meddling with the contents of the sample packets placed before the chemical examiner for examination. In such state of affairs in the evidence, trial Court having entertained doubt in mind that what was actually seized from the possession of Bhara being the contents were not placed before the chemical examiner, and thus the report of the chemical examiner, Ext. In such state of affairs in the evidence, trial Court having entertained doubt in mind that what was actually seized from the possession of Bhara being the contents were not placed before the chemical examiner, and thus the report of the chemical examiner, Ext. 5 cannot be pressed into service in the present case so as to establish the nexus between the contents seized from that Bhara said to have been carried by the respondent with what was examined by the chemical examiner, this Court finds no such compelling justification to disagree. This missing of link thus remains un-travelled by the prosecution. In that view of the matter, this Court finds no justifiable reason to interfere with the order of acquittal. 10. Resultantly, the appeal stands dismissed. Appeal dismissed.