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2015 DIGILAW 705 (ORI)

Sk. Jahur v. State of Orissa

2015-12-16

RAGHUBIR DASH

body2015
JUDGMENT : Raghubir Dash, J. 1. The Appellant herein challenges the judgment dated 18.5.2009 passed by the learned Additional Sessions Judge-cum-Judge, Special Court, Boudh in SPL Case No. 4 of 2008 whereunder the Appellant has been found guilty of having committed the offence punishable under Section 20(b) of the N.D.P.S. Act and sentenced to undergo R.I. for fifteen years and to pay fine of Rs. 1.5 lakh, in default, to undergo R.I. for three years. Prosecution case, in brief, is that on 15.3.2008 while the S.I. of Excise along with his staff and other constituting a raiding party was proceeding towards Sagada to have raids on cultivators of Cannabis plants, he got a reliable information to the effect that 'Ganja' was stored in the dwelling house of the present Appellant. On such information, the raiding party proceeded to the Appellant's house, barricaded the house and conducted search of the house observing different formalities. On such search, huge quantity of substance suspected to be 'Ganja' kept in a number of bags was recovered. The S.I. of Excise conducted sensual test and in aid of his long experience got himself confirmed that the substance was 'Ganja'. Weight of the 'Ganja' kepi in all the bags was taken which came to 145 Kg. He drew sample from the contents of each of the bags. He sealed the bags with the Substance inside and also the sample packets and sealed them using one brass seal. He seized the 'Ganja' bags which were recovered from the Appellant's house along with the sample packets' observing formalities. The brass seal used for sealing of the bags and sample packets was handed over to the Executive Magistrate, who was also a member of the raiding party, to be kept in his custody. The Appellant was arrested. Since all these continued till late night the accused was forwarded to the Court on the next day along with the seized articles. The sample packets were sent to SDTRL, Bhubaneswar for chemical examination through the Court. The samples on being subjected to chemical test were found to be 'Ganja'. 2. On submission of prosecution report, learned Special Judge took cognizance of the offence under Sections 20(b)(ii)(C) of the Act, and proceeded to record evidence of the prosecution witnesses before charge. On 24.11.2008 charge was framed indicating commission of the offence under Sections 20(b) Of the Act. The samples on being subjected to chemical test were found to be 'Ganja'. 2. On submission of prosecution report, learned Special Judge took cognizance of the offence under Sections 20(b)(ii)(C) of the Act, and proceeded to record evidence of the prosecution witnesses before charge. On 24.11.2008 charge was framed indicating commission of the offence under Sections 20(b) Of the Act. Witnesses examined before charge were called for and cross-examined after charge. Then two more witnesses were examined. On completion of evidence from the side of the prosecution the Appellant was examined under Section 313(1)(b) of Cr. PC. The Appellant adduced defence evidence. After hearing argument from both the sides and on an analysis of the evidences available on record, the learned Special Judge delivered the impugned judgment. 3. Out of the six prosecution witnesses, P.W.4 is the Sub-Inspector of Excise, P.W.3 is the Executive Magistrate, P.W.1 is the Revenue Inspector and P.W.6 is the A.S.I, of Excise. All of them were members of the raiding party. P.Ws.2 and 5 are independent witnesses who were invited by the S.I. of Excise to witness the search and seizure. These two witnesses have turned hostile. The sole defence witness has adduced evidence to the effect that the Appellant dwells in a house at Bausuni and he has no other dwelling house elsewhere. 4. The findings of the learned Court below have been challenged on the following grounds: "(i) The factum of seizure of the contraband article from the exclusive possession of the Appellant cannot be said to have been proved beyond reasonable doubt, more so when the independent witnesses do not support the prosecution case, (ii) There is no reliable evidence to give a definite finding that the house wherefrom the contraband article is claimed to have been seized was owned and possessed by the Appellant. (iii) The charge framed by the learned Trial Court is vague and defective to the extent of causing failure of justice." 5. Learned counsel for the Appellant has advanced argument reiterating the afore stated grounds and further raised the following objections: "(a) Prosecution has failed to follow the proper procedure for keeping the seized articles in safe custody excluding possibility of being tampered with. (b) Testimony of prosecution witnesses suffers from prevarications and inconsistencies. Learned counsel for the Appellant has advanced argument reiterating the afore stated grounds and further raised the following objections: "(a) Prosecution has failed to follow the proper procedure for keeping the seized articles in safe custody excluding possibility of being tampered with. (b) Testimony of prosecution witnesses suffers from prevarications and inconsistencies. (c) Requirement of mandatory provisions incorporated in Section 42of the Act has not been complied with." On the other hand, learned counsel for the State -argues ill support of the findings recorded by the learned Court below. 6. It is true that independent witnesses such' as P.Ws.2 and 5 did not support the prosecution case. These two witnesses have admitted that on the request of the Excise staff they had put their signatures on some papers. But they deny their presence at the time of the search and seizure. Each of them was permitted' to be examined under Section 154 of the Evidence Act. Independent witnesses turning hostile in criminal cases particularly, cases under the Excise Act and N.D.P.S. Act has become quite common. Therefore, the fate of the case cannot be left at the mercy of the independent witnesses. Testimony of official witnesses, if found reliable and trustworthy, must be accepted even without insisting on for corroboration from independent witnesses. In this case, it is not shown as to how the official witnesses are untrustworthy. They have stated that the house wherefrom the contraband article was seized is a dwelling house occupied by the Appellant himself, his wife and their minor son. There is nothing to disbelieve this assertion of the official witnesses, namely, P.Ws.3, 4 and 6. P.Ws.4 and 6 are Excise staff whereas P.W.3 is an Executive Magistrate and he was then posted as Deputy Collector, Boudh. Of course, he was a member of the raiding party, But he has no reason to support the S.I. of Excise (P-.W.4) and A.S.I, of Excise (P.W.6) against whom the defence has hopelessly made a preposterous imputation while cross-examining P.W.6 that they had taken mutton from the Appellant (a butcher by profession as claimed by the Appellant) and when he demanded money from them, they falsely implicated the Appellant in the case. This plea was not taken by the accused during his examination under Section 313(1)(b) of Cr.P.C. nor did he examine himself as a witness to testify himself on such allegation. This plea was not taken by the accused during his examination under Section 313(1)(b) of Cr.P.C. nor did he examine himself as a witness to testify himself on such allegation. Against the positive evidence of the official witnesses that the house in question is the Appellant's dwelling house and that at the time of search the Appellant with his wife and minor son was found occupying that house, P.W.2 has tried to demolish the prosecution case by saying that the house in question is in so dilapidated 'condition that it is not fit for human habitation. But at the same time he has also stated that he does not know as to how the house is being used. At one stage he has stated that the house has got windows which were found to be closed with the help of gunny bags. But, when he came to the Court four months thereafter to be cross-examined after charge, he stated that the house in question is an open one having no door and window, testimony of such witnesses should not be taken into consideration. The very assertion made by this witness that the windows of the house were closed by means of gunny bags indicates that it was being used for human dwelling and windows were so closed in order to maintain privacy. P.W.5 is also not trustworthy. During his examination-in-chief as well as examination under Section 154 of the Evidence Act, he did not. say anything as to the site where he was asked by the Excise staff to put signature on some papers. He stated that he did not know the accused. He denied that he was present at the spot where the search and seizure had taken place. But in cross-examination he has stated "the house in question is a dilapidated one and has become a habitation of cattle". Which house he refers to while answering to the questions during his cross-examination, was not made clear by eliciting more statements from the witness. Before making the aforequoted statement, he had never mentioned anything about any house. So, the sudden mention about the house during his cross-examination indicates that he was a gained over witness who made statements to damage the prosecution case. Therefore, his testimony as to the manner in which the house in question was being used bears no evidential value. 7. Before making the aforequoted statement, he had never mentioned anything about any house. So, the sudden mention about the house during his cross-examination indicates that he was a gained over witness who made statements to damage the prosecution case. Therefore, his testimony as to the manner in which the house in question was being used bears no evidential value. 7. Learned counsel for the Appellant argues that though P.Ws.2 and 5 have been permitted to be examined under Section 154 of Evidence Act, the statement made by them before the Police during investigation having not been brought to their notice and those statements having not been proved in terms of Section 145 read with Section 154 of the Evidence Act, it cannot be said that the prosecution has contradicted the said witnesses. In support of this contention reliance is placed on Apex Court's judgment reported in AIR 1997 SC 322 (Binay Kumar Singh v. State of Bihar). In that case attention of the witness was not drawn to his statement to the Police recorded under Section 161 Cr.P.C. But in the case at hand P.Ws.2 and 5, when they claimed that they did not know anything about the search and seizure and that they simply lent their signatures on some papers, each of them was allowed to be examined under Section 154 of Evidence Act and whatever they had stated before the I.O. regarding the search and seizure was put to them with suggestion that they had stated so before the Police. Therefore, Section 145 of the Evidence Act has been substantially complied with. Under such circumstances, the afore stated contention appears to be without any basis. 8. On the reliability of P.W.3, the Executive Magistrate, it is argued by the learned counsel for the Appellant that no credibility to his testimony should be attached inasmuch as the prosecution itself has accepted him to be a hostile witness. It is true that on the prayer of the Public Prosecutor P.W.3 was permitted to be examined under Section 154 of Evidence Act. But this Court fails to understand as to what made the learned Public Prosecutor to seek permission of the Court to declare him hostile and what prompted a senior Judicial Officer like the learned Additional Sessions Judge-cum-Special Court, Boudh to accept such a prayer. Because, nowhere in his entire examination-in-chief, he has shown his hostility towards the prosecution. But this Court fails to understand as to what made the learned Public Prosecutor to seek permission of the Court to declare him hostile and what prompted a senior Judicial Officer like the learned Additional Sessions Judge-cum-Special Court, Boudh to accept such a prayer. Because, nowhere in his entire examination-in-chief, he has shown his hostility towards the prosecution. The Court while dealing with any request for seeking it's permission under Section 154 of Evidence Act, ought not to grant such permission merely on such asking. The Court has the responsibility to examine before granting such permission as to whether the witness concerned has shown any hostility towards the party for whom he is adducing evidence. A perusal of the deposition of P.W.3 would make it clear that he is not a hostile witness. Even after obtaining permission to examine the witness under Section 154 of Evidence Act, the learned Public Prosecutor did not put any question challenging the correctness or truthfulness of any statement the witness had made in his examination-in-chief. Reading the entire deposition of P.W.3, one would find that he is an impartial witness. The Appellant tries to cash in on the statement of P.W.3 to the effect that three of the eight packets, those were seized during the house search, were not found to have contained the paper slip on which he had put his signature at the time the packets, were sealed using such paper slip. What the witness is understood to have stated, is that while five of the bags still contained the paper slips which were labeled during the seizure, such slips in respect of the bags marked D, G and H were missing as in course of time they got damaged. The witness clarifies that those three packets, however, contain the impressions of the brass seal which were affixed to the bags at the time of seizure. The defence did not put any further question to P.W.3 during his cross-examination on the possibility of tampering of the seals on the bags containing the seized 'Ganja' in order to elicit some materials for the purpose of raising any doubt that the seized articles might have been tampered with. 9. The defence did not put any further question to P.W.3 during his cross-examination on the possibility of tampering of the seals on the bags containing the seized 'Ganja' in order to elicit some materials for the purpose of raising any doubt that the seized articles might have been tampered with. 9. On the reliability of the official witnesses, it is argued on behalf of the Appellant that their testimony is full of inconsistencies with regard to the time of their arrival at the spot, duration of the entire process of seizure and description of the house in question. It is specifically pointed out that P.W. 1 says that at 2.00 P.M. he reached the spot, but P.W.4 says that he reached the spot at 12.30 P.M. Further more, when P.W.3 states that the entire process continued up to 11.00 P.M., P.W.4 has deposed that the process continued up.to 7.00 P.M. Regarding the description of the house, it is pointed out that according to P.W.4 the house consisted of only one room, but P.W.6 says that the house has got three rooms. P.W.4 is the Sub-Inspector of Excise who has prepared a spot map which has been marked as Ext. 19. In the said spot map he has drawn a sketch map showing the location of different-rooms of the house in question. The description in the spot map IS consistent With what P.W.6 has stated. P.W.4 has never stated in his deposition that the house consisted of only one room. It was suggested to him that the house in question consisted of one room but he emphatically said 'no' to that suggestion Perhaps, the learned counsel has mistaken the refusal of the suggestion as an admission and advanced such an argument. Regarding the alleged discrepancy as to the time of arrival at the spot, it may be stated that P.W.1 is the Revenue Inspector and P.W.4 is the Sub-Inspector of Excise. It is not the case of the prosecution that the Revenue Inspector was also a member of the raiding party. So, it cannot be expected that both must have arrived there at the same time. It is quite natural that the R.I. reached at the spot after the arrival of the raiding party. He went to the spot only on the requisition of the S.I. of Excise vide letter No. 52 dated 15.3.2008 which is marked as Ext. 2. So, it cannot be expected that both must have arrived there at the same time. It is quite natural that the R.I. reached at the spot after the arrival of the raiding party. He went to the spot only on the requisition of the S.I. of Excise vide letter No. 52 dated 15.3.2008 which is marked as Ext. 2. P.W.1 has stated in clear terms that by the time of his arrival at the spot the search and seizure was over. The alleged discrepancy between the statements of P.Ws.3 and 4 on the duration of the entire process relating to search and seizure is also very much inconsequential. P.W.3 has stated that the raiding party returned to Boudh at 11.00 PM. He stated that the "entire process" continued till 1.00 P.M. It appears, P.W.3 understood the term "entire process" as the time consumed till their return to the headquarters. But P.W. 4 was asked to say the duration of the "entire process of search and seizure". He replied that it continued from 1.00 PM. to 7.00 P.M. The seizure, followed by the search and recovery, might have completed by 7.00 P.M. But, there were many other processes to he completed at the spot. One of such processes is recording of the statements of witnesses which might have consumed a lot of time because that process was completed at night with the help of torch light and/or some "light system" as stated by the P.W. 4. It is not forthcoming as to whether the questions put to P.Ws.3 and 4 on the duration of the "entire process" and "entire process of search and seizure" were identical and whether each of the witnesses, while answering to such questions, had understood the questions in the same light. Otherwise, such discrepancies are bound to occur. The Court should not be mechanical in accepting such discrepancies to discard the testimony of witnesses on the ground of prevarication and inconsistency. 10. Now coming to the question as to whether prosecution has been able to prove beyond reasonable doubt that the seizure of 'Ganja' was made from the conscious and exclusive possession of the Appellant. Attempt has been made to make out a case that the house wherefrom the seizure was made was an abandoned, house not fit for human dwelling and it was not in the occupation of the Appellant. Attempt has been made to make out a case that the house wherefrom the seizure was made was an abandoned, house not fit for human dwelling and it was not in the occupation of the Appellant. This defence is built up on the testimony of witnesses who are hostile to the prosecution. It is already discussed as to how the prosecution witnesses, who have turned hostile, are found to be untrustworthy. Through the defence witnesses attempt has been made to make out a case that the Appellant is a resident of village Bausuni and he has got no house elsewhere. To prove that the Appellant is a resident of Baidyanathpur, Baunsuni, a xerox copy of the Voter identity Card issued in the name of the Appellant has also been marked as Ext. A. In the prosecution report also it is stated that the Appellant is a resident of Baidyanathpur under Bausuni, Police Station, but his present address is stated as Saleipada under Monamunda, Police Station. Official witnesses who have no reason to falsely implicate the Appellant have stated that at the time of raid and during the search of the house in question, they found that the Appellant with his wife and minor son was residing in the house in question. The Revenue Inspection it was stated that on demarcation of the land, whereon the house in question stands, it was found to be a piece of Government land. He has further stated that previously one Encroachment Case (No. 443/2002) was initiated against the Appellant in respect of the said piece of Government land but it was dropped as the land in question is Gochara in kissam which cannot he settled. It is argued that the case record in the said Encroachment Case ought to have been produced and necessary papers forming part thereof should have been proved by the prosecution to lend credibility to the testimony of the Revenue Inspector. It would have been better if such papers were brought on record. But the R.I. cannot be disbelieved, as to what he has stated about the Encroachment Case because, he is a public servant" and he would not venture to take the risk of adducing" false evidence in the Court regarding the Encroachment Case. It would have been better if such papers were brought on record. But the R.I. cannot be disbelieved, as to what he has stated about the Encroachment Case because, he is a public servant" and he would not venture to take the risk of adducing" false evidence in the Court regarding the Encroachment Case. Be that as it may, the ocular testimony of the official witnesses to the effect that they had seen the Appellant and his family members occupying the house in question and that the seized 'Ganja' was recovered from one of the bedroom of the said house cannot be disbelieved. Once this part of their testimony is found to be reliable, the existence of culpable mental state of the Appellant can be presumed 'and in the absence of any attempt from the side of the Appellant to prove that he had no such mental state with respect to the possession of the seized 'Ganja' a presumption under Section 54 of the Act can be raised against the Appellant as he has failed to account satisfactorily for the possession of the seized 'Ganja'. 11. It is vehemently argued that the charge framed by the learned Trial Court is so vague and defective that it has resulted in failure of justice. The charge framed by the learned Special Judge reads as follows: "That you on 15.03.2008 at Saleipada in your house found in illegal possession of large quantity of "Ganja" in polythene jari bags and thereby committed an offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act and within my cognizance." It is evident that in the charge so framed the exact quantity of 'Ganja' allegedly seized from Appellant's possession was not specified. Instead, "large quantity" of 'Ganja' has been stated. In addition to taking exception to this allegedly vague description in the charge, it is also submitted that the offence punishable under the N.D.PS. Act should have been reflected in the charge as Section 20(b)(ii)(C) instead of Section 20(b). It is true that from a reading of the charge one cannot decipher as to whether the Appellant-Accused was involved in the commission of an offence punishable under the N.D.PS. Act involving commercial quantity of 'Ganja'. But it cannot be said that he was not aware of the quantity of 'Ganja' seized from his possession. It is true that from a reading of the charge one cannot decipher as to whether the Appellant-Accused was involved in the commission of an offence punishable under the N.D.PS. Act involving commercial quantity of 'Ganja'. But it cannot be said that he was not aware of the quantity of 'Ganja' seized from his possession. Throughout the process of search and seizure he was present A copy of the seizure list has been handed over to him on the very date of the occurrence. During his examination under Section 313(1)(b) of Cr.P.C. he was told that 145 kg. of 'Ganja' had been recovered from his possession. From the day one, he used to be represented by an Advocate. He had moved bail application before the learned Court below and the same was rejected on the ground that 145 kg. 'Ganja' had been seized from his possession (Order No. 4 dated 20.4.2008 passed by the Trial Court). At the time of framing of charge the learned Court below had heard the learned counsel for the Appellant on the question of framing of charge. Under such circumstances, it cannot be presumed that the Appellant was not in the know of the quantity of 'Ganja' allegedly recovered from his possession for which he was facing trial. The other part of the objection on the defective charge is ' on the omission to state correctly the Section of law. In the charge-sheet the Section of law is stated as Section 20(b) of N.D.P.S. Act Learned counsel for the Appellant submits that this has caused prejudice to the Appellant inasmuch as Section 20(b) of the Act does not relate to contravention of the provisions of the Act relating to 'Ganja'. In support of this contention, learned counsel has cited a judgment of this Court reported in (2000) 19 OCR 533 (Sukadev Samantaray v. State of Orissa). But this judgment deals with the provisions' of Section 20 of the N.D.P.S. Act as it stood prior to its amendment vide Act 9 of 2001. The amended provision of Section 20(b) of the Act relates to, inter alia, possession of Cannabis in contravention of any provisions of the Act. Therefore, the case law cited by the learned counsel for the Appellant is not applicable to this case. The amended provision of Section 20(b) of the Act relates to, inter alia, possession of Cannabis in contravention of any provisions of the Act. Therefore, the case law cited by the learned counsel for the Appellant is not applicable to this case. Mentioning of the Section of law as Section 20(b) of the N.D.P.S. Act is sufficient to indicate that the charge is in respect of possession of 'Ganja' in contravention of provisions of the said Act. Therefore, it cannot be said that omission to mention the exact quantity of 'Ganja' in the charge-sheet has occasioned a failure of justice. Section 215 of Cr.P.C., 1973 lays down that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. 12. Now the objection as to the safe custody of the seized article is taken up. The trend of cross-examination of all the prosecution witnesses does not indicate that during the trial the defence has made any attempt to create doubt over the safe and proper custody of the seized article. In the written note of submission filed by the learned counsel for the Appellant the only objection related to such custody is that the seized article was not handed over to the police to be kept in the Malkhana of Manamunda Police Station till it was to be produced before the Court. No question was asked to the S.I. of Excise as to why it was not handed over to the police and why it was retained in his custody. The seized articles were produced before the Special Judge on the day following the occurrence day. But there is no material showing that the seized articles which were already packed and sealed at the spot might have been tampered with before those were produced before the Court. The seized articles were produced before the Special Judge on the day following the occurrence day. But there is no material showing that the seized articles which were already packed and sealed at the spot might have been tampered with before those were produced before the Court. There is concrete evidence showing that one brass seal which was used by the S.I. of Excise for the sealing of the bags/packets was handed over to the Executive Magistrate immediately after the process of sealing was over and the said Executive Magistrate produced the brass seal before the Court at the time he adduced evidence and the same was marked as M.O. VI. Under such circumstances, there is no reason as to why there would be a reasonable doubt that the seized articles were not kept in safe custody. 13. Another objection is on the non-compliance of Section 42 of the Act the try into the house in question took place before sunset. The house was raided after receipt of information from some source. Therefore, under Section 42 of the Act the S.I. of Excise was required to take down in writing that any Narcotic Drug or Psychotropic Substance or Controlled Substance in respect of which an offence punishable under the Act had been committed was kept or concealed in any building, conveyance or enclosed place. The S.L of Excise claims to have complied with this requirement asserting that he took down in writing all those facts vide Ext. 18 and immediately-communicated that writing to the Inspector of Excise who is his immediate authority. He has also proved the endorsement of the Inspector of Excise on Ext. 18 to the effect that a copy of Ext. 18 was received by the Inspector. It is not argued as to how Ext. 18 does not comply with the requirement of Section 42 of the Act. On a perusal of Ext. 18 it is found that the mandatory requirement has been substantially complied with. 14. Taking into consideration all the submissions made on behalf of the Appellant and finding, that learned Court below has rightly held that the Appellant was found in possession of commercial quantity of 'Ganja' and thereby guilty of having committed the offence punishable under Sections 20(b)(ii)(C) of the Act, the order of conviction impugned in this appeal is not liable for interference. 15. 15. On the propriety of the sentence imposed by the learned Court below, it is argued by the learned counsel for the Appellant that the sentence is harsh and not proportionate to the crime found to have been committed by the Appellant. Basing on the quantity of 'Ganja' seized from the possession of the Appellant, the learned Court below has sentenced him to undergo R.I. for fifteen years and to pay fine of Rs. 1,50,000/-, in default, to undergo R.I. for three years. Since commercial quantity is involved, the offence is punishable with rigorous imprisonment for a term which may extend to twenty years, with fine of Rs. 2,00,000/- but it shall not be less than ten years of R.I. and fine of Rs. 1,00,000/-. Learned counsel for the Appellant submits that the Appellant being very poor is unable to pay the fine and therefore, under the impugned judgment he has to undergo R.1. for eighteen years. It is further submitted that the Appellant has got no criminal antecedent. Further submission is that his pardanashih wife and minor son are totally dependent on him and they would suffer immensely if the Appellant remains in jail for such a long period. It is further submitted that only on the basis of the quantity of 'Ganja', the learned Court below ought not, to have imposed more than the minimum punishment prescribed under the Act. Learned counsel for the State, however, argues justifying the propriety of the punishment awarded by the learned Court below. 16. Having regard to the submissions made by the learned counsels and the nature of the offence as well as the quantity involve, this Court is of the considered view that ends of justice would be met if sentence of imprisonment is reduced to a period of ten years while maintaining the sentence of fine as well as the term of default sentence. In the result, the appeal is allowed in part. The order of conviction stands confirmed and the sentence is modified. Instead of fifteen years of rigorous imprisonment the Appellant is sentenced to undergo R.I. for ten years. The sentence of fine with the default sentence is maintained. The CRLA is accordingly disposed of.