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2017 DIGILAW 562 (ORI)

Sijo v. G. VS State of Orissa

2017-05-10

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. 1. The appellants in this appeal call in question the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in C.T. No.39 of 2007 holding the appellants guilty of charge under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentencing each of them to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo R.I. for a further period of one year each. 2. The case of the prosecution is that on 16.01.2007, P.W.6, Ashok Kumar Seth, the S.I. of Excise (District Mobile) while patrolling near Spillway of Chitrakonda, Malkangiri received reliable information regarding illegal cultivation and possession of ‘Ganja’ by some culprits. To verify the information, P.W.6 accompanied with Superintendent of Excise in-charge-cum-Tahasildar, Chitrakonda, Radhaballav Patnaik (P.W.5), Constable of Excise – Nilamadhab Choudhury (P.W.3) and with other staff rushed to the spot where they noticed from a distance the appellants attempting to conceal their respective bags. P.W.6 as such proceeded to the spot and detained the appellants. He also found “Hem plants” cultivated in a nearby area encircled by fence with a hut inside. On demand, the appellants could not produce any authority for possessing ‘Ganja’ in those two bags and also could not produce any authority or licence for such cultivation. P.W.6 also found a bag containing ‘Ganja’ staked in that hut. He uprooted and counted the plants which comes to 30 Kgs. P.W.6 took weighment of seized bags and found the bag possessed by the appellant no.1 contained 23 Kgs., bag possessed by the appellant no.2 contained 24 Kgs. and bag recovered from that hut contained 30 Kgs. of ‘Ganja’. P.W.6 prepared seizure list in presence of Superintendent of Excise-in-charge-cum-Tahasildar, Malkangiri (P.W.5) and prepared seizure list (Ext.2). He also drew samples from each bags and sealed the sample packets and bulk ‘Ganja’ and “Hem plants” at the spot. Subsequently, the appellants and the seized articles were forwarded to the Court. P.W.6 also conducted investigation of the case and on completion thereof he placed prosecution report against the appellants for alleged commission of offence under Section 20(a)(i) and 20(b)(ii)(C) of the Act. The appellants being charged for the aforesaid offence and having pleaded not guilty, faced trial before the learned Addl. P.W.6 also conducted investigation of the case and on completion thereof he placed prosecution report against the appellants for alleged commission of offence under Section 20(a)(i) and 20(b)(ii)(C) of the Act. The appellants being charged for the aforesaid offence and having pleaded not guilty, faced trial before the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri where they examined one witness in support of their defence of false implication. On conclusion of the trial, placing absolute reliance on the evidence of the official witnesses, the trial court held the prosecution to have established the charge against the appellants and returned the judgment of conviction and order of sentence, as stated earlier. 3. It has been submitted by the learned counsel for the appellants that in this case since the version of the prosecution witnesses against the appellants was not corroborated by any independent witnesses to search and seizure who said to have witnessed the seizure and when there is nothing on record to show that what was seized from the possession of the appellants were actually examined by the chemical examiner, the judgment of conviction and order of sentence recorded on the evidence of official witnesses are indefensible. 4. Repelling such contention, the learned counsel for the State has defended the impugned judgment of the trial court to be just and proper inasmuch as there is no impediment in law to record conviction basing on the testimony of the official witnesses, particularly when the same suffers from infirmity. According to him, since in this case the evidence of the official witnesses are clear and cogent with regard to seizure of contraband articles from the possession of the appellants and when there was also no material brought on record to suggest that P.Ws.3, 5 and 6 had any reason to falsely implicate the appellants even if their version was not supported by independent witness like P.Ws.2 and 4, the impugned judgment of conviction and order of sentence returned by the trial court placing reliance on the testimony of the official witnesses, need no interference of this appellate court. 5. On perusal of the materials placed on record, it would go to show that the version of the official witnesses with regard to fact that the appellants were found carrying gunny bags containing ‘Ganja’ is not supported by the independent witnesses, viz. P.Ws.2 and 4 of that locality. 5. On perusal of the materials placed on record, it would go to show that the version of the official witnesses with regard to fact that the appellants were found carrying gunny bags containing ‘Ganja’ is not supported by the independent witnesses, viz. P.Ws.2 and 4 of that locality. However, 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 and 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 of such cases is 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. 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” Section 118 of the Evidence Act also does not make the official witnesses to be incompetent witnesses. Again Section 134 of the Evidence Act, 1872 speaks that no particular number of witnesses shall in any case be required for the proof of any fact. The said section also does not make any distinction with regard to version of official witnesses and other witnesses. Again Section 134 of the Evidence Act, 1872 speaks that no particular number of witnesses shall in any case be required for the proof of any fact. The said section also does not make any distinction with regard to version of official witnesses and other witnesses. Therefore, even if the version of the independent witness to seizure does not support the case of seizure, if the version of the official witnesses making the seizure is worthy of credence and suffers from no infirmity, there is no impediment in law to place reliance on such evidence to accept the seizure. The law with regard to appreciation of the version of official witnesses is that their testimonies are required to be scrutinized fairly and dispassionately like the other witnesses in order to find out whether the same inspire confidence and can be safely relied upon. On such scrutiny, if no infirmity is found in the version, there is no impediment to make the foundation of conviction and record a conviction on the same even if not corroborated by any other independent witness. In view of the aforesaid, contention advanced by the learned counsel for the appellant that since the version of the official witnesses are not supported the independent witness, such version of the official witnesses to incriminate the appellant requires outright rejection, is unacceptable. 6. Before adverting to the question raised, I would like to add that an Officer conducting search and seizure under the Act is bound to follow the procedure envisaged under the Act and cannot proceed in breach thereof. Here, P.W.6 is the Officer who claimed to have seen the appellants running away with two bags containing alleged ‘Ganja’ and it is he who also claimed to have recovered another bag containing ‘Ganja’ from a hut in that plantation area. He should not have investigated the case being a highly interested person since he conducted search and seizure of contraband articles. 7. The very Excise Officer who appears to have effected the seizure from the possession of the appellants, investigated the case. The practice of investigation being conducted by the same Officer who happens to be an ocular eyewitness has been looked with disfavour by the Courts. When the same Officer who claims to have made the search and seizure also investigated the case, his evidence is required to be looked with great care and caution. 8. The practice of investigation being conducted by the same Officer who happens to be an ocular eyewitness has been looked with disfavour by the Courts. When the same Officer who claims to have made the search and seizure also investigated the case, his evidence is required to be looked with great care and caution. 8. The Apex Court in the case of Megha Singh vrs. State of Haryana, AIR 1995 SC 2339 , have held as follows :- “We have also noticed another disturbing feature in this case. P.W.3, Siri 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.” So also, 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 , have 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. In Nathiya and another v. State, 1992 (1) Crimes 537 , Rajasthan High Court has deprecated the practice of investigation of a case under the Act by the selfsame person who made recovery of contraband. 9. In the backdrop of the aforesaid factual aspects and settled law on the subject, I would like to scan the evidence of P.Ws.3, 5 and 6 in order to ascertain whether any implicit reliance can be placed on the testimony of the official witnesses. 10. 9. In the backdrop of the aforesaid factual aspects and settled law on the subject, I would like to scan the evidence of P.Ws.3, 5 and 6 in order to ascertain whether any implicit reliance can be placed on the testimony of the official witnesses. 10. Gist of the evidence of P.W.6 revealed that on receipt of the information regarding possession and transportation of ‘Ganja’ when he along with P.W.3 and few other constable of Excise rushed to the spot they found both the appellants each holding a gunny bag attempting to conceal those bags. But, he caught them redhanded. His evidence also revealed that there was a hut nearby the “Hem plants” cultivation. However, P.W.1, R.I., Chitrakonda who had demarcated the case land, stated the spot was a Government land, he did not notice any fence or hut and there was also no plantation over the said land. In cross-examination this witness has also stated that the spot was accessible to all. Incidentally, the appellants were not detained inside that hut or near the plantation. P.W.6 did not notice the appellants watering the hem plants or doing any other ancillary works relating to plants. No piece of evidence regarding ownership of that land and the alleged hut being found, the lower Court as such acquitted the appellants of the charge under Section 20(a)(i) of the Act. When P.W.1 did not notice any hut, the seizure of bag of ‘Ganja’ from inside the hut as deposed by P.W.6, is unworthy of credence. Even otherwise also, when the appellants were not found inside the hut and when no personal belonging of the appellants also found in that hut, their possession either physical or constructive cannot be attributed with the articles found in that hut. Law is well settled that ‘possession’ need not be physical possession but can be constructive, having power and control over the article in question. Constructive possession in law applies to a person having knowledge of an article plus the ability to control such object, even if he has no physical contact with it. Possession is not the same as ownership and there are distinctions between the two. An owner of an object may not always physically possess the object. Constructive possession in law applies to a person having knowledge of an article plus the ability to control such object, even if he has no physical contact with it. Possession is not the same as ownership and there are distinctions between the two. An owner of an object may not always physically possess the object. Even though another person is having actual physical possession of articles but if the accused has the power or control over such articles and the other person having physical possession of the articles is merely acting as per the direction/instruction of the accused and has no independent choice of taking any decision in respect of disposal of such articles then also it can be said that the accused is having possession or control of the articles. Therefore, the term ‘possession’ may have different meanings in different contexts and it need not be actual, physical or personal possession but it includes physical control over the articles in question. 11. This being the factual aspect, the evidence of official witnesses adduced to connect the appellants with a bag found from a hut at the spot is not convincing and cannot be accepted. There being no nexus between the articles found and any hut and much less knowledge of the appellants, they have neither exclusive nor conscious possession over any ‘Ganja’ found in a bag said to have been recovered from a hut. Mere presence of the appellants near about the vicinity of bag or the so-called hut does not establish their possession. So, prosecution failed to establish possession of contraband articles seized from a hut and connect the appellants with the same. 12. So far recovery of two other bags containing alleged ‘Ganja’ from the possession of the appellants, the evidence regarding search and seizure is hopelessly short of acceptance. The evidence of P.W.5, the then Superintendent of Excise-cum- Tahasildar, Chitrakonda reveals that on 16.01.2007 at 1 p.m. Excise personnel produced before him two suspects and three bags containing contraband ‘Ganja’. He signed the seizure lists, Exts.2/13, 2/14, 2/15 and 2/16. In cross-examination, this witness has conceded that he had no direct knowledge about search and seizure of any contraband articles. He has further stated that at the time of search and seizure, he was in a boat and cannot say from whose possession such gunny bags containing contraband articles were seized. In cross-examination, this witness has conceded that he had no direct knowledge about search and seizure of any contraband articles. He has further stated that at the time of search and seizure, he was in a boat and cannot say from whose possession such gunny bags containing contraband articles were seized. However, this witness was subsequently recalled by the prosecution where he deposed to have witnessed search and seizure. But, in cross-examination he again stated that “what he had deposed earlier on 02.07.2002 was correct as he admitting the fact”. Selecting P.W.5 as the Gazetted Officer, P.W.6 conducted search and seizure. But, this witness having given two different version before the Court on two different dates no implicit reliance can be placed on his testimony which does not inspire confidence. It is fragile piece of evidence and no implicit reliance can be placed on such testimony in a case of this nature. Leaving aside the evidence of P.W.5, prosecution left with the evidence of P.Ws.3 and 6. Here, P.W.6 is himself conducted search and seizure and also conducted investigation and submitted prosecution report. So, his evidence needs careful scrutiny before acceptance. As stated earlier, his evidence on seizure of ‘Ganja’ in bag in a hut near the spot was found to be unacceptable. His evidence on search and seizure was also not corroborated by the evidence of P.W.5. Hence, his evidence on seizure of ‘Ganja’ in two bags, one each from the possession of the each appellant are also required to be taken with a pinch of salt. The same is more so, as it appears from his evidence that the articles were seized on 16.01.2007 around 1 p.m., but the articles were never forwarded to the Court along with the appellants on the same day. In that night he kept the seized articles and sample packets in his Malkhana which is under his custody he being the S.I. of Excise, District Mobile, Malkanagiri though law enjoins upon him to keep the articles with the Officer-in-Charge of nearest Police Station. He also detained the appellants in his custody. 13. On 17.01.2007 he produced the appellants along with seized articles and sample packets before the Special Judge, Koraput-Jeypore. He also detained the appellants in his custody. 13. On 17.01.2007 he produced the appellants along with seized articles and sample packets before the Special Judge, Koraput-Jeypore. On the direction of the Special Judge, he produced the sample packets before the SDJM, Malkanagiri for onward transmission to SFSL, Bhubaneswar and deposited the 3 bulk packets and 3 other sample packets in Court malkhana. However, on the next day, i.e., on 18.01.2007 he despatched the sample packets along with the forwarding letter of the SDJM, Malkangiri (Ext.9) to the SDTRL, Berhampur. On the night on 17.01.2007 P.W.6 also kept the sample packets in his custody. He has not whispered what precautionary measures taken on 16.01.2007 till removal of sample packets and production before the Court and what precautionary measures taken when he received back the sample packets with forwarding reports of the Court of the SDJM, Malkangiri for onward transmission. However, the sample packets were not despatched on 17.01.2007, but P.W.6 retained the sample packets again in his custody. No Malkhana register showing deposit of sample packets in Malkhana on 16.01.2007, removal on 17.01.2007, again re-deposited on 17.01.2007 and further removal on 18.01.2007 produced and proved to establish safe custody of the sample packets. Incidentally, neither the seized articles and sample packets produced before the nearest Police Station for its safe custody nor signature of the Officer-in-charge of the Police Station also obtained. Record also reveals the brass seal of P.W.6 by which he sealed 3 packets containing bulks seized ‘Ganja’ and six sample packets were kept in his custody. Bana Khilla (P.W.2) having not deposed to have received any such brass seal in his custody, the zimmanama, Ext.3 neither confronted nor his signature to show that after seizure and sealing of seized articles and sample packets, the brass seal was released in his zima. That brass seal was also not produced. When there is no evidence on record that sample packets were kept in safe custody, Malkhana register not produced and proved in support of such material evidence and when brass seal also not produced and apparently retained by P.W.6, there is no convincing evidence with regard to safe custody of the articles seized. That brass seal was also not produced. When there is no evidence on record that sample packets were kept in safe custody, Malkhana register not produced and proved in support of such material evidence and when brass seal also not produced and apparently retained by P.W.6, there is no convincing evidence with regard to safe custody of the articles seized. That apart, the evidence of P.W.6 does not disclose the reasons for non-drawl of sample for chemical examination by the expert in presence of the seizure witnesses as well as the appellants on the very date of seizure. There is thus virtually no explanation with regard to the safe custody of the articles seized from the possession of the appellants after the seizure and what actuated the Investigating Officer (P.W.6) not to produce the articles seized before the Magistrate along with the appellants on the date of seizure. He was the custodian of the Malkhana, he himself retained the key and Malkhana register with him. The whereabout of the brass seal is also not known. That apart, the evidence of P.W.6 revealed that before arrival of P.W.5 he opened the bags and removed some sample representative for his subjective satisfaction that what was kept in the bags was nothing but ‘Ganja’. There is no convincing evidence with regard to the safe custody of 3 packets of bulk ‘Ganja’ seized before drawl of samples for chemical examination by the SFSL, Bhubaneswar. Even for the sake of argument, the evidence of the Investigating-cum-Detecting Officer is accepted that he had seized three bags of alleged ‘Ganja’ (not produced during trial) from the possession of the appellants, till then there being no convincing material to show that any representative samples drawn therefrom were examined by the chemical examiner, the evidence of P.W.6 and the chemical examination report (Ext.10) is of no assistance to the prosecution to prove that the articles found in the possession of the appellants was nothing but ‘Ganja’. 14. This Court in the case of Santosh Patra and others vrs. State of Orissa, 2015 (I) OLR 236 , has held as follows :- “Section 55 of the Act provides that Police shall take incharge of the articles seized till delivery. 14. This Court in the case of Santosh Patra and others vrs. State of Orissa, 2015 (I) OLR 236 , has held as follows :- “Section 55 of the Act provides that Police shall take incharge of the articles seized till delivery. An officer16 in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This section provides that if any contraband is seized then the same shall be delivered to the Officer-in-charge of a nearest Police Station for safe custody pending orders of the Magistrate. The Officer-in-charge shall allow any Officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. So two conditions were required to be fulfilled. An Officer may accompany the seized articles shall be allowed by the Officer-in-charge of the Police Station to affix his seal to such articles and take samples thereof. It is further required that all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This provision has been violated in this case as it is not proved in the case that the sample packets, which are drawn by P.W.1, were also sealed with the seal of the O.I.C. of the Police Station in whose interim custody the articles were kept after detection of the seizure. It is further apparent from the record that the brass seal, which was used to seal the articles and sample packets, has not been produced in the Court. The prosecution witness P.W.4, namely, Tikiswar Sahu, has denied that the brass seal was kept in his zima on execution of a zimmanama. It is further apparent from the record that the brass seal, which was used to seal the articles and sample packets, has not been produced in the Court. The prosecution witness P.W.4, namely, Tikiswar Sahu, has denied that the brass seal was kept in his zima on execution of a zimmanama. So all these material aspects taken together create doubt in the mind of the court regarding the compliance of Sections 52 and 55 of the Act.” The aforesaid requirement of the Act as seen from the evidence on record has been violated by P.W.6. He has no reason to retain the seized articles and sample packets in his custody without producing them at the nearest Police Station, for which the seized articles could not be resealed by the Officer-in-charge to avoid tampering of the articles. So, there is apparent violation of Section 55 of the Act. Moreover, the brass seal used for sealing the contraband articles was not produced before the Court. Record does not indicate that the seal affixed in the seized packets tallied with the specimen impression of brass seal affixed on the seizure list. No explanation also offered as to why the seized articles were not handed over to the Officer-in-charge of the local Police Station for safe custody. When Malkhana register and brass seal also withheld, it is held that prosecution failed to establish the safe custody of the very articles before its production for chemical investigation. In this connection, a decision in the case of State of Rajasthan vrs. Gurmail Singh, 2005 (1) Crimes 346 (SC) may be seen. 15. To sum up, the evidence adduced by the official witnesses with regard to search and seizure of ‘Ganja’ from the personal possession of each of the individual appellants as well as from a hut near the spot being not free from blemish, so also there being no evidence with regard to safe custody of the so called ‘Ganja’ stated to have been seized from the possession of the appellants to rule out the possibility of meddling of the articles seized before drawal of representative samples for chemical examination, the appellants could not have been made liable for possession of ‘Ganja’ of more than the commercial quantity violating the provisions of Section 8(c) of the Act punishable under Section 20(b)(ii)(C) of the Act. Therefore, on reappraisal of the evidence on record, this Court is of the view that the trial court grossly erred in appreciation of the evidence on record to come to a conclusion that the appellants were found to be possessing the ‘Ganja’ of such quantity violating the provisions of Section 8(c) of the Act. 16. For the reasons aforesaid, the prosecution is found to have failed to establish the charge against the appellants beyond all reasonable doubt. The appellants are entitled to the benefit of doubt thereof. Accordingly, this criminal appeal is allowed and the impugned judgment of conviction and order of sentence are set-aside. Consequently, the appellants are acquitted of the charge and they be set at liberty forthwith, if in custody, unless their detention is required otherwise. L.C.R. received be sent back forthwith along with a copy of this Judgment.