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2016 DIGILAW 420 (ORI)

State of Orissa v. Panduru Tandi

2016-06-06

S.K.SAHOO

body2016
JUDGMENT : S. K. SAHOO, J. This is an appeal under section 378 of the Code of Criminal Procedure preferred by the State of Orissa challenging the impugned judgment and order dated 12.09.1996 passed by the learned Sessions Judge, Koraput, Jeypore/Rayagada, Camp at Rayagada in Sessions Case No.151 of 1995 in acquitting the respondents Panduru Tandi and Jabdu Mahanandia of the charge under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act, 1985’) for illegal possession of 7 Kgs. 750 Grams of ganja on 4th day of March 1995 at about 9.30 p.m. on the road near village Sesikhal under Rayagada Police Station in the district of Rayagada. 2. It is the prosecution case, as per the First Information Report lodged by Debi Prasad Dash (P.W.3), Sub-Inspector of Police, Rayagada Police Station on 05.03.1995 before the Inspector in Charge, Rayagada Police Station that on 04.03.1995 he got reliable information that some miscreants were transporting ganja illegally through the Parbatipur-Rayagada Road and they were travelling by public conveyance. P.W.3 apprised the facts to the wing headquarters and also received valuable instruction from the Superintendent of Police in that regard. He submitted a requisition to District Magistrate, Rayagada to depute one Executive Magistrate to remain present during verification. The District Magistrate, Rayagada deputed Shri Himanshu Narayan Pattnaik (P.W.1), Executive Magistrate, Rayagada to remain present with the police for such raid/verification at Sesikhal. P.W.3 along with P.W.1 and others arrived at Sesikhal on 04.03.1995 at about 9.00 p.m. and started verification of the vehicles coming to Rayagada and during such verification, two local persons namely, Pali Ramana Rao and Debi Prasad Choudhury (P.W.2) were also present. It is the further prosecution case that during intensive checking, two persons were found travelling in a goods vehicle truck carrying charcoal bearing Registration No. AP-16-T-3525 and one of them was carrying two handbags and other was carrying one handbag with them. On verification of those hand bags, ganja was found kept concealed in packets along with their personal belongings. The names and addresses of the passengers were ascertained and it was found that respondent no.1 Panduru Tandi was carrying two handbags containing two packets and respondent no.2 Jabdu Mahanandia was carrying one handbag. From the handbags of respondent no.1 Panduru Tandi, two packets of ganja were seized, one packet weighed to be 1.750 Kgs. The names and addresses of the passengers were ascertained and it was found that respondent no.1 Panduru Tandi was carrying two handbags containing two packets and respondent no.2 Jabdu Mahanandia was carrying one handbag. From the handbags of respondent no.1 Panduru Tandi, two packets of ganja were seized, one packet weighed to be 1.750 Kgs. and the other packet weighed to be 4.500 Kgs. From the handbag of respondent no.2 Jabdu Mahanandia, one packet carrying 2 Kgs. of ganja was found. P.W.3 seized the ganja packets along with the containing hand bags in separate seizure lists in presence of the witnesses and Executive Magistrate. He drew samples weighing 25 grams each from each of the bulk packs. The sample packets as well as remaining ganja were sealed with specimen seal impression on wax and the specimen signatures of witnesses, the accused persons and the police officials were taken on the paper slips and each piece of such paper was kept in the concerned packets. The respondents were arrested at the spot by P.W.3 who returned to the police station along with the respondents and seized properties. On the basis of the First Information Report lodged by P.W.3, Rayagada P.S. Case No. 30 of 1995 was registered under section 20(b) of the N.D.P.S. Act, 1985. The Inspector in Charge of Rayagada Police Station Shri Sarat Chandra Pattnayak took charge of the seized properties from P.W.3 on 05.03.1995 and re-sealed the bulk packets and on 06.03.1995 the respondents were forwarded to Court and on 07.03.1995 a detailed report was submitted by the I.I.C., Rayagada to S.P., Rayagada about the detection and seizure. On 07.03.1995 as per the direction of the I.I.C., Rayagada, P.W.3 produced the sample packets before the learned S.D.J.M., Rayagada praying to send the same for chemical analysis and accordingly, the sample packets were sent to R.S.F.L., Berhampur. The chemical examiner on chemical analysis opined that the exhibits marked as A-1, A-2, B-1, B-2, C-1 and C-2 contained flowering and fruiting tops of the cannabis plants which is commonly called as ganja. After completion of investigation, the I.I.C., Rayagada Police Station found prima facie evidence under section 20(b) of the N.D.P.S. Act, 1985 and accordingly on 02.05.1995 submitted charge sheet against the respondents. 3. The plea of the respondents was one of denial and it was pleaded that nothing has been seized from their possession. After completion of investigation, the I.I.C., Rayagada Police Station found prima facie evidence under section 20(b) of the N.D.P.S. Act, 1985 and accordingly on 02.05.1995 submitted charge sheet against the respondents. 3. The plea of the respondents was one of denial and it was pleaded that nothing has been seized from their possession. Respondent no.2 Jabdu Mahanandia stated in his statement recorded under section 313 Cr.P.C. that he was taken from the bus stand and a false case has been foisted. 4. During course of trial, in order to prove its case, the prosecution examined three witnesses. P.W.1 Himanshu Narayan Pattnaik was the B.D.O.-cum-Executive Magistrate, Rayagada who on the requisition of the Officer in Charge, Rayagada Police Station and as per the direction of District Magistrate, Rayagada attended the search and seizure of the offending truck bearing Registration No. AP-16-T-3525. He stated that from the possession of respondent no.2, one bag (M.O.I) was seized and from the possession of the respondent no.1 Panduru Tandi, two bags (M.O. II and M.O. III) were seized. He further stated about the drawal of the samples of ganja as well as sealing of the sample packets. P.W.2 Debi Prasad Choudhury is an independent witness who attended the search and seizure on 04.03.1995 and he stated that from the possession of respondent no.2, two bags M.Os.II and III were seized and from the possession of respondent no.1, one bag M.O. I was seized. He also proved his signatures in the seizure list. P.W.3 Debi Prasad Dash was the Sub-Inspector of Police, Rayagada Police Station who not only made the Station Diary Entry after receipt of the information regarding illegal transportation of ganja but also carried out the search and seizure of the contraband ganja from the possession of the respondents. He prepared the seizure lists and also drafted the plain paper F.I.R. addressed to the I.I.C., Rayagada Police Station. He handed over the charge of the seized property to the I.I.C. on 05.03.1995. He prepared the seizure lists and also drafted the plain paper F.I.R. addressed to the I.I.C., Rayagada Police Station. He handed over the charge of the seized property to the I.I.C. on 05.03.1995. The prosecution exhibited eleven documents Exts.1 and 2 are the seizure lists, Ext.3 is the receipt, Ext.4 is the signature of P.W.1 on the paper slip kept in ganja packet, Ext.5 is the signature of P.W.1 on the paper slip kept in the sample packet, Ext.6 is the signature of P.W.1 on the paper containing specimen seal, Ext.7 is the copy of requisition issued to District Magistrate, Rayagada, Ext.8 is the written report, Ext.9 is the copy of the report submitted by the I.I.C., Rayagada Police Station to S.P., Rayagada, Ext.10 is the office copy of the forwarding report of S.D.J.M., Rayagada and Ext.11 is the chemical examiner report. The prosecution also proved thirteen material objects. M.O.I is the plastic bag, M.Os. II and III are the bags, M.Os. IV, V and VI are the sample ganja packets prepared from M.O.I, M.O.II and M.O.III respectively, M.O. VII is the brass seal and M.Os. VIII to XIII are the sample packets. No witness has been examined on behalf of the defence nor has any document been proved on behalf of the defence. 5. The learned Trial Court analyzing the oral evidence of P.Ws.1, 2 and 3 as well as the documentary evidence came to hold that there are discrepancies relating to the timing of the personal search of the witnesses and relating to the recovery of specific bags containing contraband ganja from the individual possession of the respondents. The learned Trial Court also noticed discrepancies in the evidence of the witnesses and the exact place where the weighment of ganja was made, sealed and seized and observed that there are chances of tampering with the material objects in absence of any seal over the stitched portion of the bag containing ganja. The learned Trial Court has been pleased to observe that the prosecution has failed to prove the charge against any of the respondents and accordingly held them not guilty of the charge under section 20(b)(i) of the N.D.P.S. Act, 1985 and acquitted them. 6. Mr. Tusar Mishra, learned Additional Standing counsel appearing on behalf of the State placed the impugned judgment as well as the evidence of the witnesses and contended that the P.Ws. 6. Mr. Tusar Mishra, learned Additional Standing counsel appearing on behalf of the State placed the impugned judgment as well as the evidence of the witnesses and contended that the P.Ws. 1 and 3 are the official witnesses and they had no axe to grind against the respondents and P.W.2 is an independent witness and all of them supported the prosecution case and there are no such vital contradictions appearing in the evidence of the witnesses and therefore, the learned Trial Court was not justified to record an order of acquittal. Mr. Mishra further contended that since the impugned judgment of the learned Trial Court is highly unreasonable and the view taken therein is not sustainable, the same should be set aside and the respondents should be convicted of the offence charged. None appears on behalf of the respondents. 7. The learned Trial Court framed charge against the respondents under section 20(b)(i) of the N.D.P.S. Act, 1985 for illegal possession of 7 kgs. 750 grams of ganja (5 Kgs. 750 grams from respondent no.1 and 2 Kgs. from respondent no.2) on 04.03.1995 at about 9.30 p.m. on the road near village Sesikhal. 8. The evidence of P.W.1 Himanshu Narayan Pattnaik, the B.D.O.-cum-Executive Magistrate, Rayagada indicates that on 04.03.1995 he was directed by District Magistrate, Rayagada to attend the search to be conducted by the Officer in Charge and accordingly he accompanied the Officer in Charge and other police staff to Hat Sesikhal Out-Post where the independent witnesses were called by the Officer in Charge. P.W. 1 further stated that when the truck bearing registration no. AP-16-T-3525 came containing carrying charcoal, the respondents were found sitting inside the cabin and another person was driving the truck and before carrying the search of the vehicle, the personal search of the witnesses, police staff as well as his own personal search were taken and from the truck, nothing incriminating was found and then the personal belongings of the respondents were searched. P.W.1 further stated that respondent no.2 Jabdu Mahananda was found carrying one plastic bag M.O.I and respondent no.1 Panduru Tandi was found carrying two bags M.O.II and M.O.III and when those bags were searched, it was found to be containing ganja. P.W.1 further stated that respondent no.2 Jabdu Mahananda was found carrying one plastic bag M.O.I and respondent no.1 Panduru Tandi was found carrying two bags M.O.II and M.O.III and when those bags were searched, it was found to be containing ganja. P.W. 1 in the cross-examination has stated that apart from the respondents, there was driver and helper in the truck and he himself has not entered inside the truck and he saw those bags M.O.I to M.O.III when those were brought out by Sub-inspector (P.W.3) from the truck cabin and when P.W.3 brought out the bags, the respondents identified their individual bags. At this stage, if the evidence of the independent witness P.W.2 Debi Prasad Choudhury is taken into consideration, it would be seen that he has stated that from the possession of respondent no.2 Jabdu Mahanandia, M.O.II and M.O.III were recovered and from respondent no.1 Panduru Tandi, M.O.I was recovered. Thus P.W.2 has stated just the reverse what P.W.1 has stated regarding recovery/possession of specific bags containing ganja. P.W.2 has further stated that he had not entered inside the truck and apart from the respondents, the driver and cleaner were also present there in the cabin. P.W.2 further stated that when the Sub-Inspector asked the respondents to come down with their belongings, the respondents came down holding their bags M.Os. I to III. This is just contrary to what P.W.1 has stated that M.O.I to III were brought out by the Sub Inspector from the truck cabin. Coming to the evidence of the P.W.3, the Sub-Inspector of Police, Rayagada Police Station, it is found that he has stated that when the cabin and belongings of the driver and cleaner were verified, nothing incriminating was found and then the respondents were asked to come down and they got down holding their bags and from respondent no.1 Panduru Tandi, two bags M.O.II and M.O.III containing packets of ganja were recovered and seized and from the possession of respondent no.2 Jabdu Mahanandia, one plastic handbag M.O.I containing packet of ganja was seized. The evidence of P.W.3 runs contrary to the evidence of P.W.2. P.W.3 has further stated that he looked inside the cabin but did not enter into the cabin which is contrary to the evidence of P.W.1. The evidence of P.W.3 runs contrary to the evidence of P.W.2. P.W.3 has further stated that he looked inside the cabin but did not enter into the cabin which is contrary to the evidence of P.W.1. P.W.3 has further stated that he personally checked the driver seat and did not find anything and the respondents were sitting inside the cabin holding the bags as their luggage. He further stated that he asked the respondents to come out of the cabin holding their luggage and accordingly they came out holding their bags. He further stated that he had not personally brought out the bags from the cabin. Thus on scanning of the evidence of P.Ws.1, 2 and 3, it is found that there are discrepancies as to from whose possession which bag was seized and whether it is P.W.3 who brought out the bags from the cabin of the truck or the respondents themselves got down from the cabin holding the bags. It further appears from the evidence of the witnesses that in the cabin of the truck, two other persons i.e. the driver and the helper were also present at the relevant point of time along with the respondents but they have neither been cited as witnesses in the case nor they have been arrayed as accused. If from the cabin of the truck where all the four persons were present, P.W.3 brought out three bags as stated by P.W.1, it cannot be said that those bags were seized from the exclusive or conscious possession of the respondents particularly when the driver and the helper of the truck were not arrayed as accused in the case nor they have been examined to say as to how the bags containing contraband ganja came into the cabin of the truck. It is the evidence of P.W.3 that at Sesikhal when two independent witnesses including P.W.2 were called, the Executive Magistrate (P.W.1) gave his personal search before the witnesses and P.W.1 also took the personal search of the witnesses and police personnels and then they came to the road for verification. P.W.1 on the other hand stated that after the truck was detained by P.W.3, before carrying the search, the personal search of the witnesses, police staff and that of him were taken. P.W.1 and P.W.2 are silent as to who took such personal search and of whom. P.W.1 on the other hand stated that after the truck was detained by P.W.3, before carrying the search, the personal search of the witnesses, police staff and that of him were taken. P.W.1 and P.W.2 are silent as to who took such personal search and of whom. Admittedly no document relating to personal search has been proved by the prosecution. The First Information Report is also silent regarding the personal search. Thus there are discrepancies in the evidence of the witnesses as to what stage and at what place, the personal search were taken. Personal search of the searching party members is being taken before effecting search so as to rule out possibility of manipulation or transplantation of contraband articles. Thus the evidence relating to personal search does not inspire confidence. 9. P.W.3 has stated that after the ganja was detected in the bags, one constable weighed the seized ganja but that constable has not been examined in the case. P.W.3 has stated that he has not personally weighed the articles and he cannot say the weight of the packets including the ganja and weight of the ganja excluding the packets. 10. The materials available on record further indicates that P.W.3 handed over the seized properties to the Inspector in Charge Sri Sarat Chandra Pattnayak on 05.03.1995, who took charge of the investigation and he sealed the buck packets and it is the said Inspector in Charge, who on completion of investigation submitted charge sheet. The evidence further reveals that on the direction of the Inspector in Charge on 07.03.1995, the sample packets were produced before the S.D.J.M., Rayagada. Thus from 05.03.1995 to 07.03.1995, the sample packets were in the possession of the Inspector in Charge. There is absolutely no material where the sample packets were kept and in what manner. The Inspector in Charge has not been examined nor has the Malkhana register been proved in the case. Law is well settled it is the bounden duty of the prosecution to prove that not only the seized contraband ganja was properly sealed and kept in safe custody prior to its production before the Court for sending the same to the chemical examiner for analysis but also to prove that the ganja which was produced before the Court and sent for chemical analysis were the very same ganja which was seized from the possession of the accused respondents. Unless the prosecution proves the same by leading cogent, reliable and unimpeachable evidence then there would be chances of tampering with the contraband articles and in that event, benefit shall be extended to the accused persons. In the present case, in the absence of examination of Inspector in Charge Sarat Chandra Pattnayak, in absence of any other oral evidence relating to the keeping of the seized ganja in safe custody prior to its production before the learned S.D.J.M., Rayagada and in absence of proof of any documentary evidence like Malkhana register, it is very doubtful that the contraband articles and the samples were kept in safe custody from 05.03.1995 to 07.03.1995. There is absolutely no explanation as to why I.I.C. Sri Sarat Chandra Pattnayak was not examined in this case as witness. The order sheet of the Trial Court is also silent in that respect. P.W.3 has stated that the entire length of the stitch over the material objects has not been sealed. The learned Trial Court has observed in the judgment that he verified the bulk packet of ganja as shown by the learned defence counsel and found that the sealing has been done over the entire length of the stitch on one side of the bag and on the other three sides, the stitching had been done but no seal has been given over the stitch to prevent opening of the stitch and tampering with the articles. Learned Trial Court further observed that he found the stitch made on the bag over which seal was not given can be reopened and again can be re-stitched and therefore, when the property remained with the custody of the Investigating Officer, he had ample opportunity to tamper with the material objects. 11. On consideration of the materials available on record as well as on going though the findings of the learned Trial Court, it cannot be said that the view taken by the learned Trial Court in acquitting the respondents is palpably wrong or manifestly erroneous. Law is well settled that in a case of appeal against acquittal, even if two views are possible, the appellate Court should not interfere with the conclusion arrived at by the learned Trial Court unless the conclusions are not possible. Law is well settled that in a case of appeal against acquittal, even if two views are possible, the appellate Court should not interfere with the conclusion arrived at by the learned Trial Court unless the conclusions are not possible. Even if the appellate Court can review the Trial Court’s conclusion on both facts as well as law, but unless there has been flagrant miscarriage of justice by pronouncing the order of acquittal substantially and compelling reasons are there to interfere with the conclusions arrived at by the Trial Court, the findings of acquittal should not be disturbed. On careful analysis, it appears that there are discrepancies in the evidence of the witnesses and also discrepancies relating to which bag was seized from whose possession. When the driver and the helper of the truck have not been arrayed as accused nor cited as witnesses for the prosecution, when the evidence relating to keeping of the ganja in safe custody prior to its dispatch for chemical examination is not satisfactory and above all there is no infirmity or perversity in the impugned judgment of the learned Trial Court, I am not inclined to interfere with the same and accordingly, the impugned judgment and order of acquittal is upheld and the Government Appeal stands dismissed. The respondents have been released on bail by this Court vide order dated 17.05.2007. They are discharged from the liability of their bail bonds. Their personal bonds and surety bonds stand cancelled. In the result, the Government Appeal stands dismissed.