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2017 DIGILAW 418 (ORI)

Lalitmohan Sa v. State of Orissa

2017-04-17

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. 1. The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.157 of 1991 on the file of the Sessions Judge, Sundargarh. The learned Sessions Judge, Sundargarh vide the impugned judgment held the appellant guilty of the charge under Section 20(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the “N.D.P.S. Act”) and sentenced him to undergo R.I. for four years and to pay a fine of Rs.10,000/-, in default, to undergo further R.I. for one year. 2. Prosecution case placed before the trial court is that on 28.04.1991 while the Inspector of Excise, Sadar, Sundargarh along with staff were on duty, getting information about possession and sale of ‘Ganja’ by the appellant, searched his house in presence of witnesses and recovered 750 grams of ‘Ganja’ and seized the same, drew sample of 25 grams of ‘Ganja’, sent the same for chemical examination, examined the witnesses, arrested the appellant and requested the Tahasildar, Sundargarh to depute an Amin to demarcate the house, ascertained about its ownership and after completion of enquiry, submitted P.R. against the appellant and, accordingly, cognizance was taken. The learned trial court placing reliance on such case of the prosecution, framed charge against the appellant who pleaded not guilty to the charge, trial was held, in course of which, prosecution examined six witnesses, exhibited certain documents and Material Object to bring home the charge. The appellant in his defence did not adduce any oral evidence. After conclusion of the trial, the learned trial court placing reliance on the version of the witnesses, the exhibits and Material Object proved by the prosecution, returned the impugned judgment of conviction and order of sentence against the appellant, as stated earlier. 3. During course of hearing of this appeal, the learned counsel for the appellant submitted that the impugned judgment is contrary to law as there is no evidence on record to establish exclusive ownership of the appellant over the house in question and his conscious possession of the seized contraband ‘Ganja’. Moreover, there is no independent corroboration and above all, mandatory provision of Sections 42, 52(1) and 57 of the N.D.P.S. Act were not complied, for which the judgment of conviction should be set-aside. Moreover, there is no independent corroboration and above all, mandatory provision of Sections 42, 52(1) and 57 of the N.D.P.S. Act were not complied, for which the judgment of conviction should be set-aside. In the alternative, keeping in view the small quantity of seizure of ‘Ganja’, the sentence is unduly harsh and excessive. 4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence. 5. As regards the contention regarding ownership of the house in question, P.W.1, an independent witness, during cross-examination by the appellant, at paragraph-3 has stated that the father, mother and wife of the appellant resided in the same house jointly in common mess. P.W.2, the Excise constable has also stated that the father, mother and brother of the appellant were staying in the same house, but in separate rooms. P.W.2 admitted that he did not enter inside the house by the time of search, but he was standing outside the verandah. P.W.3, the Inspector of Excise stated that during investigation it came to light that the appellant and his wife with children were living in one room and his parents with his younger brother were staying in another room. He further stated that before entering inside the house he called the appellant, confronted him about the sale and possession of ‘Ganja’, but he denied. He candidly admitted that he has not mentioned these facts in his investigation report. On the other hand, P.W.2, the Constable has stated that there was no talk between the Inspector and the appellant. P.W.4, another Excise Sub-Inspector stated that the Inspector of Excise, the appellant and two independent witnesses had entered inside the house and he (P.W.4) with other staff stayed outside. He has also stated that he had not heard any discussion between the P.W.3 (Inspector of Excise) and the appellant. P.W.4 during his cross-examination has categorically stated that beside the appellant and his family members, his parents also reside in that house. He further stated that in one room the appellant with his wife and children reside and in the other room, his parents and brother reside and all were present at the time of house search. If P.Ws.2 and 4 had not entered inside the house, how they had knowledge about separate living of the appellant and his parents in separate rooms. If P.Ws.2 and 4 had not entered inside the house, how they had knowledge about separate living of the appellant and his parents in separate rooms. P.W.5, the Amin also stated that during enquiry, he ascertained that the appellant, his family and parents were residing in that house. P.W.6, an independent witness, has not stated about the seizure of any ‘Ganja’ from the possession of the appellant. There is no evidence on record to establish as to from whom P.W.3 came to know that the appellant with his wife and children were staying in one room and his parents with his younger brother were staying in another room. Both P.Ws.1 and 6 had not supported the prosecution case at all. Admittedly, P.Ws.2 and 4, the Excise officials, had not entered inside the room. P.W.5, the Amin stated that the plot in question stands recorded in the name of Rumesh Sa, son of Balabhadra Sa, Ganeswar Sa, son of Swapneswar Sa, Parbati Sa, wife of Swapneswar Sa. 6. As discussed above, P.W.2, the Excise constable and P.W.4, the S.I. of Excise had not entered inside the house. Both of them stated that they had not heard any talk between the Inspector of Excise and the appellant which falsifies the version of P.W.3 (Inspector of Excise) that before entering into the house he had called the appellant, asked him if he was selling ‘Ganja’ and the appellant denied. Both independent witnesses, such as, P.Ws.1 and 6 did not support the fact of seizure of contraband ‘Ganja’ from the possession of the appellant. With such set of evidence, it cannot be conclusively held that the appellant was the exclusive owner of the house in question and contraband ‘Ganja’ was recovered from his exclusive and conscious possession. 7. Coupled with the same, as it appears, in this case there is also total non-compliance of Section 42(1) & (2) of the NDPS Act inasmuch as the Inspector of Excise in his evidence though stated that he had recorded his reasons of belief for the search of the house of the appellant on 28.04.1991, but he candidly admitted that he had not submitted the copy of his grounds of belief for the search of the house of the appellant to the Superintendent of Excise. 8. The Apex Court in the case of State of West Bengal and others vrs. 8. The Apex Court in the case of State of West Bengal and others vrs. Babu Chakraborthy, (2004) 12 SCC 201 , in paragraphs-23 and 24 have held as follows :- “23. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. 24. In the cases of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, Koluttumottil Razak v. State of Kerala, Beckodan Abdul Rahiman v. State of Kerala and in the case of Chhunna v. State of M.P., this Court has held that the non-compliance with the provisions of the proviso to Section 42 of the Act which is mandatory, the action was held illegal and the conviction of the accused was set aside. This Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with.” Therefore, there being total non-compliance in this case with regard to the mandatory provision of Section 42(1) and 42(2) of the NDPS Act, the same affects the case of the prosecution against the appellant and the appellant is entitled to an order of acquittal solely on that ground. 9. The appellant has also assailed his conviction on the ground of non-compliance of the mandate of Sections 52(1) and 57 of the NDPS Act. Hence, it would be appropriate to reproduce the relevant portion of Sections 52(1) and 57 of the N.D.P.S. Act, 1985 which reads as thus:- “52. Disposal of persons arrested and articles seized– (1) Any officer arresting a person under Sec.41, Sec. 42, Sec. 43 or Sec. 44 shall, as soon as may be, inform him of the grounds for such arrest. 57. Disposal of persons arrested and articles seized– (1) Any officer arresting a person under Sec.41, Sec. 42, Sec. 43 or Sec. 44 shall, as soon as may be, inform him of the grounds for such arrest. 57. Report of arrest and seizure–Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 10. In paragraph-4 of his cross-examination, P.W.3, the Inspector of Excise stated that after effecting the seizure he informed the appellant that he was going to arrest for recovery of contraband ‘Ganja’, but he admitted that he had not mentioned this fact in his investigation report. As stated above, P.Ws.2 and 4, the Excise officials have stated that they had not heard any talk between the Inspector of Excise and the appellant. Therefore, the evidence with regard to compliance of Section 52(1) of the NDPS Act is not believable. No evidence is also produced indicating that the Inspector of Excise (P.W.3) has sent any report of seizure of arrest to the Superintendent of Excise within the time stipulated in Section 57 of the NDPS Act. His investigation report also does not reveal the same. The aforesaid provisions though directory in nature, confer valuable rights on the accused. When informed about the grounds of arrest at the earliest opportunity, the accused becomes aware of, at the very outset, what he has to meet in the long run. Failure to do so, would certainly prejudice his defence. Similarly, the provision requiring the person making arrest or seizure to make a full report to his immediate superior officer within 48 hours, brings into existence a document which can be used for purposes of cross-examination in defence. The making of such a report within 48 hours will also bring to an end the possibility of improving the prosecution version after that time. If these provisions are not strictly complied with, the prosecution ipso facto does not fail, but the same shall have bearing on the evidence of arrest of the accused on the charge of seizure of the contraband articles under the NDPS Act, if the defence shows that failure of justice has resulted due to noncompliance thereof. 11. The Apex Court in the case Gurbax Singh vrs. 11. The Apex Court in the case Gurbax Singh vrs. State of Haryana, AIR 2001 SC 1002 , have held that it is true that provisions of Sections 52 and 57 of the NDPS Act are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. 12. So, on reappraisal of the evidence on record, this Court is of the opinion that since the prosecution in this case has not proved convincingly that the narcotic drugs were seized from the possession of the appellant much less from the conscious possession of the appellant, his conviction under the NDPS Act is unsustainable, more so non-compliance of mandatory provisions of Section 42(1) of the NDPS Act while conducting search and seizure, so also for non-compliance of Sections 52(1) and 57 of the NDPS Act as the same has resulted in violation of justice to the appellant. 13. Therefore, 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 already on bail, the bail bonds shall stand discharged. L.C.R. received be sent back forthwith along with a copy of this Judgment.