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2018 DIGILAW 109 (ORI)

Madhyam Behera v. State of Orissa

2018-01-24

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. The appellants Madhyam Behera, Ananda Nayak, Arun Sahani and Kalia @ Somonath Sahani Swain have filed the above misc. cases under section 389 of Cr.P.C. seeking for bail pending disposal of the appeals. The appellants faced trial in the Court of learned Addl. Sessions Judge-cum-Special Judge, Phulbani in G.R. Case No.42 of 2014 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereafter ‘N.D.P.S. Act’) for transporting 41 kg. 440 grams of ganja in an ambassador car on 31.07.2014 at about 5.30 a.m. at Gadiapada ghat. The learned trial Court vide impugned judgment and order dated 27.08.2016 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each, in default, to undergo R.I. for one year each. 2. The prosecution case, in short, is that on 31.07.2014 at about 4.15 a.m. the Inspector in Charge of Kajuriapada police station received reliable information that four persons who were in possession of huge quantity of ganja were likely to transport the same in one ambassador car bearing registration No.OR-12-4811 being escorted by one motorcycle. The I.I.C. immediately organized a raiding party comprising of himself and other police staff and after entering the information in the station diary entry and sending intimation to S.D.P.O., Sadar, Phulbani and S.P., Kandhamal proceeded immediately towards Gadiapada ghat. He could not obtain the search warrant due to paucity of time. At about 5.30 a.m., the raiding team noticed the ambassador car coming from Phulbani side being escorted by one motorcycle and all on a sudden on seeing the presence of the police team, the motorcycle rider left the spot leaving the motorcycle. However, the team could manage to intercept the car and four persons including the driver were found in the car and they disclosed their names and addresses and they were the appellants in the two criminal appeals and they admitted to have been in their possession huge quantity of ganja inside the dickey of the car in two bags. The appellants failed to produce any authority or licence for possession or transportation of ganja. The appellants failed to produce any authority or licence for possession or transportation of ganja. The personal search of the appellants were taken and thereafter the car was searched in presence of the Magistrate and two plastic bags were recovered from the dickey and on weighment, the ganja was found to be 41 kg. 440 grams. Three samples each weighing 50 grams were collected from the contents of each bag and the bulk quantity ganja, sample ganja were labeled, sealed and seized. After lodging of the F.I.R., the seized samples were sent to S.F.S.L., Bhubaneswar and a detail report under section 57 of the N.D.P.S. Act was submitted. The ownership of the seized car and motorcycle was verified from R.T.O., Kandhamal and after completion of investigation, charge sheet was submitted on 26.11.2014 under sections 20(b)(ii)(C)/27-A/29 of the N.D.P.S. Act against the appellants. The appellants were specifically charge sheeted under section 20(b)(ii)(C) of the N.D.P.S. Act whereas the co-accused Biku @ Bikram Behera was charge sheeted under sections 27-A/29 of the N.D.P.S. Act showing him as an absconder. 3. The learned trial Court after assessing the evidence on record has been pleased to hold that the evidence of the police officials cannot be discarded merely on the ground that they belonged to the police force and are either interested in the investigating or the prosecuting agency, however, as far as possible, the corroboration of their evidence on material particulars should be sought. The learned trial Court further held that the car in question was seized in connection with transportation of ganja and the official witnesses to the seizure supported the case of the prosecution. The Scientific Officer P.W.17 stated that on 19.8.2014 he conducted chemical and microscopic examination of the sample forwarded by S.D.J.M., Phulbani and found the same to be flowering and fruiting tops of cannabis plants. After discussing the compliance of provisions of sections 42/43 of the N.D.P.S. Act, it was held that whenever the alleged offence was dictated during day time, legally there was no reason to record the grounds of beliefs and the police is authorized to proceed with search and seizure after intimating his officer superior. It was further held that the prosecution case cannot be faulted and that there was full compliance of the provision of section 42 of the N.D.P.S. Act. It was further held that the prosecution case cannot be faulted and that there was full compliance of the provision of section 42 of the N.D.P.S. Act. Discussing the compliance of section 50 of the N.D.P.S. Act, it was held that there has been sufficient averment in the notices that the appellants were informed about their right for search in presence of Magistrate or Gazetted Officer. It was further held that the appellants during their statements recorded under section 313 of Cr.P.C. have simply stated that a false case has been foisted against them. They are silent about the circumstances under which such a huge quantity of ganja was recovered from the car in which they were travelling. Taking recourse to section 35 of the N.D.P.S. Act and absence of any explanation by the appellants under section 106 of the N.D.P.S. Act to the contrary, it was held that the appellants were in conscious possession of contraband articles and transporting the same in the car without any authority. While discussing the compliance of provisions under sections 55/57 of the N.D.P.S. Act, the learned trial Court has been pleased to hold that there is nothing to show that there has been some mischief with the seized sample during the intervening night of 31.07.2014/01.08.2014. It is further held that the Investigating Officer promptly submitted the sample to the Court and arranged its submission before S.F.S.L., Bhubneswar to exclude any theory of mischief, therefore, it was held that there has been full compliance of the provisions of section 57 of the N.D.P.S. Act. The learned trial Court further held that the prosecution has successfully proved that on the relevant day, the appellants were in exclusive and conscious possession of 41 kg. 440 grams of ganja without any authority and were transporting the same in the Ambassador car bearing No.OD-12-4811 near Gadiapada ghat. 4. The learned counsels appearing for the appellants contended that the appellants are in custody since 31.07.2014 and there is no chance of early hearing of the appeal in the near future and balance of convenience is in their favour and therefore, they should be enlarged on bail. 4. The learned counsels appearing for the appellants contended that the appellants are in custody since 31.07.2014 and there is no chance of early hearing of the appeal in the near future and balance of convenience is in their favour and therefore, they should be enlarged on bail. The learned counsel for the State on the other hand contended that since it is a case of seizure of commercial quantity of ganja from the exclusive and conscious possession of the appellants, unless the appellants overcome the bar under section 37 of the N.D.P.S. Act, they are not entitled to be released on bail during pendency of the appeal. (i) Learned counsels for the appellants challenging the illegality in the impugned judgment contended that possession of the car with the petitioners on the date of occurrence is shrouded in mystery. To buttress such contention, it is contended that the registered owner of the car is P.W.8 who has stated that one Tukuna was the driver of the car and the key of the car was with P.W.7 who is the wife of P.W.8 and P.W.7 has also stated that the car normally remains with driver Tukuna. It is contended that since Tukuna is neither an accused nor a witness in the case, the possession of the car with the appellants on the date of occurrence is doubtful. It is further contended that in view of the self contradictory statements of P.W.3, P.W.6, P.W.11, P.W.12 and P.W.15, the presence of the appellants in the car is also a doubtful feature. The learned counsel for the State on the other hand contended that though there are little variations in the statements of the witnesses relating to the presence of the petitioners in the car but their versions are not parrot like rather it appears to be very natural and the discrepancies, if any, do not go to the root of the matter to negate the presence of the appellants in the car. He further contended that it is not necessary for the prosecution to prove as to how the car in question came in possession of the appellants on the date of occurrence which may be within the special knowledge of the appellants and since except taking a denial plea, nothing more has been brought out in the cross-examination to disbelieve the prosecution case that the car in question was not in the possession of the appellants, the prosecution case has been rightly accepted by the learned trial Court. (ii) The learned counsel for the appellants contended that the independent seizure witnesses P.W.1 and P.W.2 so also the weighman (P.W.5) have not supported the prosecution case. Learned counsel for the State on the other hand contended that in a case of this nature when the version of the official witnesses like P.W.3, P.W.6, P.W.11 and P.W.12 coupled with the statement of the informant (P.W.15) clearly establishes the factum of search and seizure, the non-supporting of the prosecution case by the independent witnesses do not affect the credibility of the prosecution version. (iii) The learned counsel for the appellants contended that the recovery of ganja bags and taking of samples is not consistent in the evidence of the raiding party members as well as Executive Magistrate and only one sample packet was produced and the brass seal was not produced before the learned Special Judge for verification. Learned counsel for the State on the other hand placed the evidence of the official witnesses, relevant entries of the malkhana register marked as Ext.30, order sheet of the Court and forwarding report of the sample packets for chemical analysis and contended that there was no chance of tampering with the evidence and the order sheet indicates that material objects vide Exts. A, A/1, A/2, A/3, A/4, B, B/1, B/2, B/3 and B/4 were produced in sealed condition and Ext.A/1 and B/1 were sent by the Court to the Director, S.F.S.L., Bhubaneswar for chemical examination whereas the other exhibits i.e. Ext.A, A/2, A/3, A/4, B, B/2, B/3 and B/4 which were all produced in sealed condition were directed in kept in the Court malkhana. He further contended that even though brass seal was not produced but the specimen seal impression of the personal brass seal of IIC, Khajuriapada was produced before the Court along with material objects and the Court found that not only the sample packets were in sealed condition but also each of the exhibits was containing the signatures of the Executive Magistrate and other witnesses and therefore, mere non-production of the brass seal in Court is not a factor to discard the prosecution case. (iv) Though the learned counsel for the appellants contended regarding non-compliance of the provision under section 42 of the N.D.P.S. Act, the learned counsel for the State placed paragraph 11 of the judgment in which the learned trial Court has dealt with such aspect and has been pleased to hold that there has been full compliance to the provision of section 42 of the N.D.P.S. Act. It is contended by the learned counsel for the State that there is no illegality or perversity in such finding. 5. Section 389 of the Cr.P.C. empowers an Appellate Court to suspend the sentence pending the appeal and release the appellants on bail. Section 32-A of the N.D.P.S. Act in so far as it completely debars the Appellate Court from the power to suspend the sentence awarded to a convict under the Act was held to be unconstitutional in case of Dadu @ Tulsidas Vs. State of Maharashtra reported in (2001) 20 Orissa Criminal Reports (SC) 52 and it was further held that a sentence awarded under the Act can be suspended by the Appellate Court only and strictly subject to the conditions spelt out in section 37 of the N.D.P.S. Act. In case of State of Uttaranchal Vs. Rajesh Kumar Gupta reported in (2007) 36 Orissa Criminal Reports 92 (para 27), it is held that section 37 of the N.D.P.S. Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes. While dealing with an application for bail in connection with prosecution/conviction of offence(s) under a special statute, specific provisions contained in that statute for dealing with bail matters cannot be ignored. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes. While dealing with an application for bail in connection with prosecution/conviction of offence(s) under a special statute, specific provisions contained in that statute for dealing with bail matters cannot be ignored. In this case, the appellants have been convicted and sentenced for commission of offence under section 20(b)(ii)(C) of the N.D.P.S. Act, therefore, while dealing with their applications for grant of bail, in addition to the broad principles regarding limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail, the relevant provision under section 37 of the N.D.P.S. Act has to be kept in view. In case of Union of India Vs. Rattan Mallik @ Habul reported in (2009) 42 Orissa Criminal Reports 697, it is held as follows:- “13. It is plain from a bare reading of the non-obstante clause in the Section 37 of the N.D.P.S. Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the N.D.P.S. Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the N.D.P.S. Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. (Vide Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798 ). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the N.D.P.S. Act. 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the N.D.P.S. Act, the Court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the N.D.P.S. Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.” In the case of Rattan Mallick (supra), Allahabad High Court granted bail to the appellant convicted under sections 27-A and 29 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years on each count and to pay a fine of rupees one lakh on each count with default stipulation, on the ground of his incarceration for three years and further holding that there was no chance of his appeal being heard within a period of seven years. The Hon’ble Supreme Court held that those circumstances may be relevant for grant of bail in the matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of section 37 of the N.D.P.S. Act. The Hon’ble Supreme Court held that those circumstances may be relevant for grant of bail in the matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of section 37 of the N.D.P.S. Act. The Hon’ble Supreme Court further held that the provisions of the N.D.P.S. Act and more particularly section 37 of the N.D.P.S. Act were not brought to the notice of the learned Judge and therefore, the impugned order having been passed ignoring the mandatory requirements of section 37 of the N.D.P.S. Act was held to be not sustainable. In Case of Ratan Kumar Vishwas Vs. State of Uttar Pradesh reported in (2009) 1 SCC 482 , where the judgment of Allhabad High Court dismissing the application filed by the appellant for suspension of sentence and grant of bail was challenged, it is held as follows:- “18. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted. x x x x x x 20. The High Court has dealt with the factual position in great detail to conclude that the parameters of section 37 are not fulfilled to warrant grant of bail by suspension of sentence. We find no reason to interfere in the matter.” 6. In view of the above discussions, I am of the view that this Court even under its appellate jurisdiction under section 389 of the Code of Criminal Procedure must follow the provision of section 37 of the N.D.P.S. Act while considering the application for bail as such provision is mandatory in nature and grant of bail is controlled by such provision which has an overriding effect over other provision of the Code. Obviously the limitations imposed by sub-clauses (i) and (ii) of clause (b) of sub-section (1) of section 37 of the N.D.P.S. Act would come into play only when the appellant has been convicted under sections 19 or 24 or 27-A of the N.D.P.S. Act or when the offence committed involves commercial quantity. Since the appellants have been convicted for possessing ‘commercial quantity’ of ganja, merely because they have already undergone more than three years of the substantive sentence imposed on them by the learned trial Court, without considering the bar under section 37 of the N.D.P.S. Act, they cannot be released on bail during pendency of the appeal. Adverting to the contentions raised by the learned counsels for the respective parties and on going through the impugned judgment and order of conviction, apparently it cannot be said at this stage that there are reasonable grounds for believing that the appellants are not guilty of the offence charged or in view of any glaring infirmities, the impugned judgment and order of conviction on the face of it is not sustainable in the eye of law. It is needless to say that at the stage of final hearing of the appeal, there will be meticulous examination of the evidence on record. Since twin conditions as provided under section 37 of the N.D.P.S. Act are required to be cumulatively satisfied for grant of bail and the learned counsels for the appellants have failed to satisfy on the first condition itself, it is not at all required to discuss about the second condition. 7. In the result, the bail applications filed by the appellants being devoid of merits, stand rejected.