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2016 DIGILAW 1147 (ORI)

Sangram Kishore Nath @ Rath v. State of Orissa

2016-11-23

S.PUJAHARI

body2016
JUDGMENT S. PUJAHARI, J. - This appeal is directed against the judgment of conviction and order of sentence passed by the learned Special Judge (Vigilance)-Cum-Additional Sessions Judge, Bhubaneswar in T.R. Case No.28/15(A) of 2004 convicting the accused (hereinafter referred to as “the accused”) 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 10 years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo R.I. for one year more. 2. The case of the prosecution is that on the intervening night of 21/22.01.2004, Debendra Kumar Mallik (P.W.7), the then S.I. of Police, Kuhudi Police Outpost received a reliable information that ‘Ganja’ was being transported in a Maruti 800 car bearing registration No.WNW-1043 and the car was being parked on the road side of N.H-5 near Jayamangalpur Chhak its tyre having got punctured. P.W.7 reduced into writing the information received and at once sent intimation to the Superintendent of Police, Khurda, Bhubaneswar and without affording an opportunity to the concealment of evidence or facility for the escape of the offender, he immediately rushed to the spot and found the questioned car was being parked on the side of the road and two persons were removing the rear wheel of the car. On being asked, they disclosed that ‘Ganja’ had been kept inside the car and was being transported to Old town, Bhubaneswar. Thereafter, in accordance with the provisions of the Act and Rules framed thereunder, P.W.7 seized the car, contraband articles, drew representative samples and thereafter produced the accused and seized articles at the Police Station, and on completion of investigation, filed charge-sheet against those two persons. Both the accused persons faced trial, but the present accused when remained at large and absconded, his case was split-up from the other accused. Once he was apprehended, his trial proceeded separately and on conclusion thereof, the trial court placing reliance on the materials on record held him guilty and sentenced him as aforesaid. 3. The learned counsel for the accused submits that there is no incriminating material to indicate that the accused was in “conscious possession” of the alleged contraband articles found in the vehicle. 3. The learned counsel for the accused submits that there is no incriminating material to indicate that the accused was in “conscious possession” of the alleged contraband articles found in the vehicle. It is also the contention of the learned counsel for the accused that on the selfsame evidence when the co-accused – Sura Gauda acquitted by this Court in a separate appeal, this accused is also entitled to an order of acquittal. The further argument is that the accused being not the registered owner of the car nor found inside the car, even if any such car with alleged ‘Ganja’ was seized, the accused being a stranger to that seizure, the impugned judgment of conviction and order of sentence is unsustainable. 4. Assailing such contention, the learned counsel for the State contends that the accused is the owner of the car and he was travelling in that car on the date of occurrence and, therefore, the recovery of ‘Ganja’ was from his exclusive and conscious possession whether or not at the relevant time of his apprehension he was inside the car. 5. Rival contentions need careful evaluation of the evidence on record. So, I sifted the evidence with all care and caution. I am convinced that there is clear and clinching evidence pointing to the fact that the questioned car was detected on N.H.5 near Jayamangalpur Chhak and the raiding party found ‘Ganja’ was being stacked in that car. There is no dispute to it. This aspect is also not challenged. However, on close scrutiny of record, I do not find any pinch of material to hold that the accused was travelling in the aforesaid car nor there is any document to show that he was a registered owner of that car. Admittedly, he was apprehended while the front wheel was being attended. No other evidence being brought on record to inculpate the accused with the ‘Ganja’ found in that car and when the registered book of the vehicle was not exhibited, and more particularly when there is nothing on record from which place the vehicle originated and where the accused ascended that vehicle, it is most unsafe to rely on the oral testimony of P.W.7 to connect the accused with regard to the ownership of the car. Otherwise, the learned trial court has committed gross error of law in accepting the evidence of P.Ws.1 and 2 not recorded in presence of the accused. Section 273 of the Code of Criminal Procedure, 1973 reads as thus :- “273. Evidence to be taken in presence of accused.- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader: [Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the Court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of crossexamination of the accused. Explanation.- In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.” When the evidence was recorded during the period when the accused remained absent having absconded, placing of reliance on such evidence not recorded in terms of Section 273 of Cr.P.C. against the accused is also error of record and cannot be utilized against the accused either in support of the prosecution or in his favour in a criminal trial. That apart, in a serious case of this nature, non-examination of the Investigating Officer has definitely caused the serious prejudice to the accused. Non-production of registration certificate and absence of place from where the vehicle originated its journey and the place of its destination could not be ascertained for his non-examination. It is a serious lacuna in a criminal trial. In such premises, I am constrained to say the trial court erred in holding the accused guilty. 6. In the premises aforesaid, there being no substantial material on record to connect the accused with the seizure of ‘Ganja’, the conviction of the accused under Section 20(b) of the Act is unsustainable and liable to be interfered with. Hence, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 13.05.2008 passed by the learned Special Judge (Vigilance)- cum-Addl. Hence, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 13.05.2008 passed by the learned Special Judge (Vigilance)- cum-Addl. Sessions Judge, Bhubaneswar in T.R. Case No.28/15(A) of 2004 convicting the accused for commission of offence under Section 20(b) of the Act and sentencing him to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/-, in default, to undergo further R.I. for one year, is set-aside. The accused is acquitted of the said charge. Since the accused, namely, Sangram Kishore Nath @ Rath is in jail custody, he be set at liberty forthwith, unless his detention is required in connection with any other case. 7. So far as holding the accused guilty of the offence under Section 20(b) of the N.D.P.S. is concerned, I cannot refrain from observing that in this case though the accused appears to have involved in a offence under Section 20(b)(ii)(C) of the N.D.P.S. Act, but the trial court on a wrong premises, did not frame charge on the same and only framed charge under Section 20(b) of the N.D.P.S. Act and convicted him thereunder. Section 20(b)(ii) of the N.D.P.S. Act comprises of three types of offences. The trial court as such should have framed charge under Section 20(b)(ii)(C) of the N.D.P.S. Act where such contravention involves more than commercial quantity. The trial court oblivious to the same, framed charge and convicted the accused as stated earlier. Such approach of the trial court is not viewed happily. LCR received along with the copy of this judgment be returned forthwith. Appeal allowed.