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2016 DIGILAW 1115 (ORI)

P. Gupteswar Rao v. State of Odisha

2016-11-17

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - This appeal is directed against the judgment of conviction and order of sentence passed by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No.310 of 1991 convicting the appellant for commission of offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “the Act”) and sentencing him to undergo R.I. for one year and to pay a fine of Rs.500/-, in default, to undergo R.I. for three months more. 2. Prosecution case placed before the trial court is that the appellant while travelling in a bus bearing registration No.ORO- 73465 from Balimela to Koraput, the S.I. of Excise, Sadar Charge, Koraput along with his Excise staff made a search of that bus at Koraput bus stand where he found a suitcase kept in the carrier of the bus just above the seat of the appellant. Suspecting transportation of ‘Ganja’, the S.I. of Excise when opened the suitcase found the same to be containing ‘Ganja’. Being satisfied that the aforesaid suitcase belonging to the appellant, he made seizure of the suitcase in presence of the appellant and the witnesses in accordance with the provisions of the NDPS Act and Rules, took weighment of the ‘Ganja’ which was of 5 Kgs. in weight. From the smell and texture of the articles P.W.4 satisfied that it was ‘Ganja’, he sealed the suitcase and thereafter arrested the appellant and produced him before the S.D.J.M., Koraput. In presence of the S.D.J.M. he drew sample of 50 grams of ‘Ganja’, sealed the packet and transmitted the sealed sample packet to the chemical examiner, Government of Odisha. On receipt of chemical examination report, Ext.3 and on completion of investigation he submitted prosecution report against the appellant. The appellant faced the trial being charged under Section 20(b) of the Act. He pleaded not guilty to the charge and claimed to be tried. To substantiate the charge against the appellant, the prosecution examined altogether 4 witnesses, 2 of whom are the independent witnesses to the seizure and P.W.3 is the A.S.I. of Excise and P.W.4 is the S.I. of Excise who had made search and seizure and conducted investigation. He pleaded not guilty to the charge and claimed to be tried. To substantiate the charge against the appellant, the prosecution examined altogether 4 witnesses, 2 of whom are the independent witnesses to the seizure and P.W.3 is the A.S.I. of Excise and P.W.4 is the S.I. of Excise who had made search and seizure and conducted investigation. As it appears, the trial court placing reliance on the evidence of the official witnesses found the appellant guilty of the charge under Section 20(b) of the Act and returned the judgment of conviction and order of sentence, as stated earlier. 3. Learned counsel for the appellant assails the impugned judgment of conviction and order of sentence in this appeal to be unsustainable there being no iota of evidence that the suitcase, M.O.I belonged to the appellant and it was recovered from his exclusive and conscious possession. Besides, it is submitted that the prosecution having failed to establish the safe custody of the seized suitcase till the sample was drawn, there is no reliable and unimpeachable evidence that what was sent to the chemical examiner was the representative sample of the articles kept in the suit case. To support his stand, he places reliance on a decision of the this Court in the case of Bhaskar Kumar Karan alias Bhaskar Chandra Karana vrs. State, (2001) 20 OCR 113 wherein this Court has held that since the prosecution has not established beyond all reasonable doubt by cogent and reliable evidence that the appellant was in exclusive and conscious possession of the contraband articles, the conviction is set-aside. He further submits that there being non-compliance of the mandatory provisions inasmuch as the article seized was not immediately produced before the O.I.C. of nearest Police Station and remained in custody of the Excise official, the impugned judgment of conviction and order of sentence cannot be sustained. In this regard, he places reliance of a decision of this Court in the case of Sk. Faiyaz vrs. State of Orissa, (2010) 46 OCR 855, wherein it has been held that since the prosecution has not proved the case that from the place of seizure till the articles were produced before the chemical examiner are not in proper custody, the conviction recorded cannot be sustained. 4. Faiyaz vrs. State of Orissa, (2010) 46 OCR 855, wherein it has been held that since the prosecution has not proved the case that from the place of seizure till the articles were produced before the chemical examiner are not in proper custody, the conviction recorded cannot be sustained. 4. On the other hand, the learned counsel for the State supports the impugned judgment of conviction and order of sentence advancing the submission that the evidence of the Investigating Officer in this case being above reproach, the seized suitcase was recovered from the exclusive and conscious possession of the appellant while he was travelling in the bus and the seized articles were also immediately produced before the Magistrate along with the appellant and, therefore, the impugned judgment of conviction and order of sentence cannot be found fault with. 5. On perusal of the materials on record, it would go to show that the independent witnesses to the seizure (P.Ws.1 and 2) have not supported the case of the prosecution in any manner. No doubt, there is no inexorable rule of law that even if the independent witnesses did not prove the seizure, the same cannot be accepted, but there must be clear and cogent evidence in this regard. It is settled law that the same can hardly be a ground to discard the evidence of the official witnesses to record an order of conviction, if the version of the official witnesses is otherwise trustworthy, inspire confidence to prove the guilt of the accused beyond all reasonable doubt. The aforesaid law has been well settled by a catena of decisions of the Apex Court and so also by this Court. One such decision is in the case of Nathusingh vrs. State of Madhya Pradesh, AIR 1973 S.C. 2783 wherein the Apex Court have held as under :- “The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused.” A Division Bench of this Court in the case of Nilambar Sahu vrs. State of Orissa, (1990) 3 OCR 219 relating to Bihar and Orissa Excise Act have held as under :- “Even if the evidence of these two witnesses be not available to the prosecution to establish its case, the evidence of the three official witnesses cannot be brushed aside. State of Orissa, (1990) 3 OCR 219 relating to Bihar and Orissa Excise Act have held as under :- “Even if the evidence of these two witnesses be not available to the prosecution to establish its case, the evidence of the three official witnesses cannot be brushed aside. Even a closure scrutiny of the evidence does not permit us to differ with the finding of fact reached by the two Courts below in this regard.” Similarly, in the case of Shyam Sunder Rout vrs. State of Orissa, 1991 CRI.L.J. 1595, this Court have held as follows :- “xxxxxx xxxxxx xxxxx It is well settled in law that where seizure witnesses turn hostile, the evidence of the departmental witnesses can be relied upon to prove the fact of seizure unless there is intrinsically anything which appears to make their evidence non-trustworthy. Xxxx xxxxx” On a careful sifting of the evidence of P.Ws.3 and 4, both Excise official witnesses, I find that the appellant was travelling in a bus bearing registration No.ORO-73465 and from the upper luggage carrier P.Ws.3 and 4 found the suitcase and that being above the seat of the appellant, they suspected that the appellant was the owner of that suitcase. 6. The appellant has signed the seizure list, Ext.1/2 where his signature is proved as Ext.1/5. The appellant having signed the seizure list in token of its receipt, P.Ws.3 and 4 jumped to a conclusion that the appellant had kept that suit case in that luggage carrier and prosecuted him. Only because the appellant has signed the seizure list that cannot be utilized against him to come to a conclusion that he admitted the suitcase containing the ‘Ganja’ to be belonging to him. Even if the appellant accepted that the suitcase was found in the carrier of the bus and the appellant has signed the seizure list, but that signature is hit under Section 162 of Cr.P.C. and cannot be utilized against the appellant. Otherwise the evidence of P.Ws.3 and 4 that the appellant admitted his possession having signed the seizure list in their presence and hearing is no legal evidence, to incriminate the appellant, the same being hit under Section 25 of the Evidence Act, the Excise officer being person in authority and also the Police Officer having power to seize and arrest. [See :- Raja Ram Jaiswal vrs. State of Bihar, AIR 1964 SC 828 ]. [See :- Raja Ram Jaiswal vrs. State of Bihar, AIR 1964 SC 828 ]. 7. In such a scenario, this Court is of the view that even if seizure of ‘Ganja’ kept in the suitcase, M.O.I in the carrier of the bus, as deposed by P.Ws.3 and 4, is believed to be true, but there is no substantive material placed on record to link that suitcase with the appellant. 8. The Supreme Court in the case of Megha Singh vrs. State of Punjab; (2003) 26 OCR (SC) 523 has held as follows :- “The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. ( AIR 1980 SC 52 ), to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. The word ‘conscious’ means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P. ( AIR 1972 SC 1756 ) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person whom physical possession is given holds it subject to that power or control. The word ‘possession’ means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD)). Once possession is established, the person who claims that it is not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. V. State of Himachal Pradesh, (2003) 26 OCR (SC) 287.” In such legal setting, I considered the evidence of P.Ws.3 and 4, but find no pinch of evidence to link the appellant with the suitcase kept on the upper luggage carrier. No personal belonging of the appellant found in that suitcase, even constructive possession of the appellant over that suitcase through legal evidence brought on record. In the absence of the same, the possession of the ‘Ganja’ kept in the aforesaid suitcase cannot be attributed to the appellant much less a conscious possession. But, the trial court in oblivious to the same relying on such confession made by the appellant before the Excise official to be the owner of the suitcase held that he was found in conscious possession of the same. Such approach of the learned trial court was contrary to law. Once prosecution failed to link the appellant with the seized suitcase, there is no evidence on record that the suitcase containing alleged ‘Ganja’ recovered from the conscious and exclusive possession of the appellant. This itself is sufficient to discard the entire prosecution. So, the judgment of conviction and order of sentence recorded against the appellant when based on no legal evidence, the same cannot be sustained. 9. Consequently, I would allow this criminal appeal and set-aside the impugned judgment of conviction and order of sentence passed against the appellant. Consequently, the appellant is acquitted of the charge. The appellant being on bail, his bail bonds stand cancelled and surety discharged. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal allowed.