Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 182 (ORI)

Sahadev Thakur v. State of Orissa

2017-02-17

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. Pujahari, J. The appellant having been convicted for commission of offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentenced to undergo R.I. for 4 years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for a further period of one year by the learned Asst. Sessions Judge, Rourkela by judgment dated 22.01.1992 passed in S.T. No.136/39 of 1991, has preferred this appeal. 2. On 04.02.1991, the I.I.C., Tangerpali Police Station had received a reliable information that the appellant was dealing with Narcotic substance in his house. On his direction, the S.I. of Police of that Police Station, Mangra Kujur, P.W.6 rushed to the spot to verify the information. On his arrival, the police raiding party called independent witnesses and in their presence, P.W.6 searched the house when the wife and children of the appellant were present. P.W.6 recovered one plastic bag containing 9.800 grams, second plastic bag containing 3 Kgs., one Tin container containing 2.800 grams, one cloth bag containing 1.500 grams of ‘Ganja’. P.W.6 also found another cloth bag containing the measuring tablets of denomination of 500, 200, 100, 50 and 20 grams. The appellant being not present, P.W.6 seized all such articles including the ‘Ganja’ and properly sealed all packets containing ‘Ganja’ in presence of the wife and independent witnesses and immediately produced all seized articles as well as the witnesses before the I.I.C., Tangerpalli Police Station who registered P.S. Case No.38(6) of 1991 and directed P.W.6 to take up investigation of the case. In course of investigation, appellant was arrested, seized articles were deposited in Court Malkhana and after completion of investigation, P.W.6 submitted charge-sheet against the appellant. The appellant pleaded not guilty to the charge and took the plea of denial. In order to substantiate the charge, prosecution examined 6 witnesses, out of whom P.W.6 is the S.I. of Police who had detected and recovered the contraband articles and investigated into the case. P.W.5 is the constable of police and P.W.3 is the A.S.I. of Police in whose presence search and seizure were made. P.Ws.1, 2 and 4 are said to be independent witnesses to search and seizure. Apart from oral evidence, prosecution has also produced seizure list, F.I.R. and seized ‘Ganja’, M.Os.I to IV. P.W.5 is the constable of police and P.W.3 is the A.S.I. of Police in whose presence search and seizure were made. P.Ws.1, 2 and 4 are said to be independent witnesses to search and seizure. Apart from oral evidence, prosecution has also produced seizure list, F.I.R. and seized ‘Ganja’, M.Os.I to IV. The learned trial court placing reliance on the testimony of the P.Ws.3, 5 and 6 held the prosecution to have established the charge against the appellant beyond reasonable doubt. 3. In assailing the impugned judgment of conviction and order of sentence, it is argued by the learned counsel for the appellant that so far as the allegation of recovery of bags containing ‘Ganja’ from the house of the appellant is concerned, the prosecution has signally failed to establish that the same was recovered from the exclusive or conscious possession of the appellant. It is argued that there is no iota of evidence indicating the fact that the appellant was in exclusive possession of that house having knowledge and control over all articles found in that house. Material on record indicates that the alleged articles were recovered when the appellant was not in that house since a woman and some children were in that house at the relevant time of alleged search and seizure. On the basis of such submission, it is argued that the evidence of P.Ws.3, 5 and 6 does not indicate that the alleged seized articles were actually seen immediately after the alleged seizure and kept in safe custody in the Police Station till produced in the Court. It is contended that the prosecution should have ruled out the possibility of tampering the seized articles by leading cogent evidence to the effect that the articles were properly sealed at the spot with a brass seal which was kept in the custody of an independent witness. P.W.6 having merely stated that he sealed the seized articles with paper seal and when no evidence as to its safe custody and when there is nothing on record to hold that any sample drawn from the seized articles and sent to chemical examiner to ascertain the nature of the articles seized, it is also unsafe to hold that any ‘Ganja’ recovered from the possession of the appellant. That apart, it is also submitted that P.W.6 himself having conducted search, effected seizure and arrested the appellant, should not have proceeded with the investigation in order to ensure fair play and impartiality. On such ground, it is submitted to set-aside the impugned judgment of conviction and order of sentence. 4. In reply, the learned counsel for the State submits that since the learned trial court has assigned cogent reasons in support of its ultimate conclusion that the appellant was found in unlawful possession of ‘Ganja’, the impugned judgment of conviction and order of sentence does not call for any second opinion. 5. To begin with the evidence revealed that P.W.6 himself having conducted search, effected seizure and arrested the appellant and conducted investigation of the case. The Apex Court in the case of Megha Singh v. State of Haryana, AIR 1995 SC 2339 , have observed as follows :- “We have also noticed another disturbing feature in this case. P.W.3, Sri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the catridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S.161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.” Further, in the case of State of Orissa v. Managobinda Sahoo, ILR (2009) 1 Cuttack 606, this Court relying upon decision of the Supreme Court in Jamuna Chaudhary & Ors. v. State of Bihar, (1974) 3 SCC 774 , has held that for the purpose of fair and impartial investigation, it must be ensured that the investigation is carried out by a person who is absolutely impartial, unbiased and unmotivated. The Rule of law makes it unthinkable to allow a witness to a crime to be the investigator into the said crime. Therefore, the requirement of Investigating Officer to Investigating Officer who is also a witness. The Rule of law makes it unthinkable to allow a witness to a crime to be the investigator into the said crime. Therefore, the requirement of Investigating Officer to Investigating Officer who is also a witness. In the case of Nathiya and another v. State, 1992(1) Crimes 537 , the Rajasthan High Court has deprecated the practice of investigation of a case under the Act by the selfsame person who made recovery of contraband. 6. When P.W.6 after alleged recovery of contraband articles from the house said to be belonging to the appellant conducted the entire investigation of the case under the Act, as held in the referred cases, that rendered the charge against the appellant vulnerable. 7. There is nothing on record to hold from which room of the house the alleged seized articles were recovered. No personal belonging of the appellant also seized. In absence of personal belonging and documentary evidence to establish the physical possession of the appellant, when P.W.6 is himself the Officer who had detected the crime and also investigated the same and nothing placed on record as to who are the inmates of the house, it is incumbent upon the prosecution to prove by cogent and reliable evidence that the appellant was in exclusive possession of the contraband articles. Once exclusive possession is proved, conscious possession is presumed unless rebutted by evidence on record. 8. The Supreme Court in the case of Megha Singh vs. 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. ( 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. Vs. State of Himachal Pradesh, (2003) 26 OCR (SC) 287.” 9. From the reading of the aforesaid case revealed that when no prosecution report implicating the person in whose presence the alleged contraband articles were recovered, accused is not legally answerable as to recovery of such possession from the house in question. In absence of any such evidence to link the appellant with the recovery of contraband articles, there is no scope to hold that the articles seized containing ‘Ganja’ were recovered from the appellant’s exclusive and conscious possession. Here, even no neighbours of that house named and examined to establish possession of contraband articles by the appellant. In this context, the decision in the case of Lingaraj Mishra vs. State, (1995) 8 OCR 264 may be referred to. 10. So far the nature of the articles seized, no chemical examination report produced and proved. Here, even no neighbours of that house named and examined to establish possession of contraband articles by the appellant. In this context, the decision in the case of Lingaraj Mishra vs. State, (1995) 8 OCR 264 may be referred to. 10. So far the nature of the articles seized, no chemical examination report produced and proved. P.W.6 did not whisper a word if he drew any sample packet in accordance with the provisions of the Act and Rules, properly sealed at the spot and kept in safe custody before its production in Court. P.W.3, the A.S.I. of Police who had accompanied P.W.6, has, however, stated that the samples were taken from M.Os.I to IV separately without taking any weighment. Samples were not sealed at the spot and in such unsealed condition sent to the Court for onward transmission to the chemical examiner. P.W.5 has stated that after seizure of all such contraband articles they took the article to a nearby shop of Ajmir Singh where weighment was taken. He has not whispered that at the spot the seized articles were properly sealed and in such seal state taken to the nearby shop at a distance of more than 100 yards for weighment. This witness has also not whispered if any sample was drawn and transmitted to the Court for the purpose of chemical examination. In fact only four bags and one Biscuit Tin produced in the Court marked as M.Os.I to V. There being no material on record that samples were drawn from the alleged M.Os.I to V properly sealed, kept in safe custody and in such condition sent to the Court and when there is also no chemical examination report to show that what was seized was ‘Ganja’, the entire evidence brought on record in support of the prosecution case does not establish that any ‘Ganja’ seized from the exclusive and conscious possession of the appellant. So, it also cannot be said that what was seized from the questioned house was nothing but ‘Ganja’. Therefore, the impugned judgment of conviction and order of sentence in the absence of any other evidence is unsustainable. 11. Accordingly, this criminal appeal is allowed. The impugned judgment of conviction and order of sentence dated 22.01.1992 passed by the learned Asst. Sessions Judge, Rourkela in S.T. No.136/39 of 1991 are set-aside. The appellant is acquitted of the said charge. Therefore, the impugned judgment of conviction and order of sentence in the absence of any other evidence is unsustainable. 11. Accordingly, this criminal appeal is allowed. The impugned judgment of conviction and order of sentence dated 22.01.1992 passed by the learned Asst. Sessions Judge, Rourkela in S.T. No.136/39 of 1991 are set-aside. The appellant is acquitted of the said charge. If the appellant, namely, Sahadev Thakur is in jail custody, he be set at liberty forthwith, unless his detention is required in connection with any other case. L.C.R. received be sent back forthwith along with a copy of this Judgment.