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2018 DIGILAW 122 (ORI)

Debendra Pradhan v. State of Orissa

2018-01-29

D.P.CHOUDHURY

body2018
JUDGMENT : DR. D.P. CHOUDHURY, J. The appellant assails the judgment of conviction and order of sentence passed by the learned 1st Addl. Sessions Judge-cum Special Judge, Puri in T.R. Case No.01/15 of 2013 in convicting him under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The conspectus of the case of the prosecution is that on 2.8.2013 at about 5.30 A.M. while the Inspector of Excise, Bhubaneswar patrolling with the staff at village Muninda, found that the appellant was coming with a heavy jerry bag in his hand. Out of suspicion said Excise Officer detained the appellant and asked as to what articles he was carrying and he confessed to have carried Ganja. The Excise Officer after disclosing his identity asked the appellant as to whether he would be searched by a Gazetted Officer or by Excise Officials and the appellant told that he would be searched by the Excise Officer. After maintaining all formalities the Inspector of Excise seized 5 K.Gs. 200 grams of Ganja contained in the jerry bag. From the colour and smell he could know that same was contraband article namely, Ganja. He took sample of the seized Ganja and sent for chemical examination. After the chemical examination report being received, confirming the same as Ganja, the Inspector of Excise submitted charge sheet against the appellant. 3. The plea of the appellant as revealed from the statement recorded under section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses that he has been falsely implicated in this case and pleads innocence. 4. The prosecution in order to prove the charge against the appellant examined three witnesses, out of whom P.Ws.1 and 3 are Excise officials, whereas P.W.2 is an outsider. The defence examined none. 5. The learned trial court after analyzing the evidence on record found the appellant guilty under section 20(b)(ii)(B) of the Act and sentenced him to undergo R.I. for ten years and to pay a fine of Rs.25,000/-, in default to undergo further R.I. for a period of six months. SUBMISSIONS: 6. Learned counsel for the appellant submitted that the learned trial court has erred in law relying on the evidence of P.Ws. SUBMISSIONS: 6. Learned counsel for the appellant submitted that the learned trial court has erred in law relying on the evidence of P.Ws. 1 and 3 as they are Excise officials, but did not rely upon the evidence of P.W.2 who being an outsider has not supported the case of the prosecution. According to her, the learned trial court has erred in law to observe that section 50 of the Act would not be applicable in the fact of the case although the observance of section 50 of the Act is applicable in this case because of the allegation of the prosecution that the appellant was in exclusive conscious possession of the Ganja, but the prosecution has failed to prove the same. When section 50 of the Act is not proved, the appellant is entitled to acquittal as per the settled law. 7. Learned counsel for the appellant further submitted that section 42 of the Act has not been complied, but learned trial court has incorrectly held that section 42 of the act has been complied. Lastly she submitted that if the appellant is found guilty, the sentence awarded, may be reduced as the sentence should be proportionate to the quantum of the contraband article seized. Moreover, there is no any previous conviction against the appellant. 8. Mr. Patnaik, learned Addl. Government Advocate submitted that there is no bar in law to rely upon the evidence of the Excise Officials. Moreover, the appellant was carrying the jerry bag in his hand and following compliance of section 50 of the Act, the search and seizure has been made. So, even if section 50 is applied, the case of the prosecution has got sufficient evidence to prove compliance of section 50 of the Act. 9. Learned counsel for the State further stated that section 42 of the Act has also been complied as after detaining the appellant the Excise Officer sent information to the higher authority and recorded such fact as per the provisions of the act and the rules framed thereunder. It is settled in law that the evidence of Excise officials cannot be thrown away merely because they are official witnesses, but their evidence consistently proved that the appellant was in exclusive conscious possession of 5 K.Gs. 200 grams of the contraband article. So, he supported the judgment of conviction and sentence passed by the learned trial court. DISCUSSION: 10. It is settled in law that the evidence of Excise officials cannot be thrown away merely because they are official witnesses, but their evidence consistently proved that the appellant was in exclusive conscious possession of 5 K.Gs. 200 grams of the contraband article. So, he supported the judgment of conviction and sentence passed by the learned trial court. DISCUSSION: 10. It is reported in the case of State Government of NCT of Delhi v. Sunil and another; 2001(1) Crimes 176, wherein it has been held as follows at paragraph-20:- “We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” 11. The aforesaid proposition as expounded by the Hon’ble Apex Court certainly relate to the appreciation of evidence of the official witnesses. The aforesaid proposition as expounded by the Hon’ble Apex Court certainly relate to the appreciation of evidence of the official witnesses. It is true that the evidence of official witnesses or the Investigating Officer cannot be discarded merely because at their instance the search and seizure has been made, but their evidence requires close scrutiny to find out whether the same requires any corroboration from independent witnesses. Moreover, it is well settled in law that the evidence of single witness can be the basis for conviction if it is found to be consistent, cogent and clear and above the reproach. It is also trite in law that the Court should weigh the evidence, but not count the same. Not only this, but also the appellate court must re-appreciate the evidence on record and reach the conclusion whether the conclusion arrived at by the trial court is correct or not. 12. Bearing in mind the above principle of law, let the evidence of the prosecution witnesses be assessed. No doubt, P.Ws. 1 and 3 are official witnesses, but P.W.2 is an outsider. 13. On perusal of the evidence of P.W.3 it appears that he is the I.O. of this case. No doubt, his evidence shows that while patrolling, he found the appellant was coming with a jerry bag in his hand and out of suspicion detained him. In compliance of section 42 of the Act, information was sent to his superior authority about intention to search of the person of the appellant. Under the provision of section 42 of the Act, it is settled in law that the Officer concerned without waiting for the consent of the superior authority, as the evidence may be washed out and the accused may run away from the spot, may continue the search and seizure. In fact the evidence of P.W.3 shows the compliance of section 42 of the Act. 14. It appears from the evidence of P.W.3 that on being asked the appellant desired to be searched by the Excise Officer, for which after giving his personal search, he searched the appellant and found that he was in possession of the jerry bag containing 5 K.Gs. 200 grams of Ganja and after measurement he followed the procedure of search and seizure as embodied in the Act. No doubt the statement of the appellant has been proved in compliance of section 50 of the Act. 200 grams of Ganja and after measurement he followed the procedure of search and seizure as embodied in the Act. No doubt the statement of the appellant has been proved in compliance of section 50 of the Act. Not only this, but also his statement finds corroboration from the seizure list, where he has recorded the entire procedure of search and seizure. 15. P.W.3 has testified that he took sample of the Ganja and sealed the jerry bag and sent the sample for chemical examination vide Ext.9. In cross-examination it is only stated that he has not sent written application intending to search to the Superintendent of Excise. It is found that he has not informed by writing to the Superintendent of Excise, but sent oral information through one constable. Since compliance of section 42 of the Act depends upon the circumstance, it has been held by the decision that the compliance of said section is directory, but not mandatory. So, the cross-examination of P.W.3 cannot be said to have been well shaken to disprove compliance of section 42 or section 50 of the Act. There is no fruitful further cross-examination made to P.W.3. On close perusal of the judgment of the trial court it appears that the said court has appreciated the evidence of P.W.3 with proper perspective. 16. P.W.1 corroborating the evidence of P.W.3 stated about search and seizure of 5 K.Gs. 200 Grams of Ganja from the exclusive conscious possession of the appellant. He is also a signatory to the seizure list. The cross-examination made to P.W.1 has no effect. So, his evidence also proved the compliance of section 50 of the Act. The assessment of evidence of P.W.1 by the trial court is amply found to be legal and proper. 17. P.W.2 did not corroborate the prosecution case about search and seizure of Ganja from the possession of the appellant, but he admitted his signatures in all the papers including the seizure list and the consent memo of the appellant for his personal search. Only it is available from his evidence that some persons called him and the Inspector of excise obtained his signatures. Nothing found from his cross-examination by the defence or the examination-in-chief that he has signed in blank paper. Nothing is found from his evidence that as to why he signed vide Ext.1/2 to Ext.7/2. Only it is available from his evidence that some persons called him and the Inspector of excise obtained his signatures. Nothing found from his cross-examination by the defence or the examination-in-chief that he has signed in blank paper. Nothing is found from his evidence that as to why he signed vide Ext.1/2 to Ext.7/2. Thus, it appears that he has avoided to support the case of the prosecution, for which did not corroborate P.Ws. 1 and 3. When there is no explanation found from P.W.2 about reason of his signature on those exhibits, it must be held that he was present at the time of search and seizure and accordingly, he has put his signatures. On the whole it is found that P.W.2 has been declared hostile by the prosecution, but it is settled in law that evidence of hostile witness cannot be discarded straightway, but should be used to the extent required for the prosecution. So, the evidence of P.W.2 supports the evidence of P.Ws.1 and 3 that the documents were prepared in his presence after due search and seizure of the contraband article from the possession of the appellant. In this regard the judgment of the learned trial court is well articulated. 18. Learned trial court has observed that section 50 of the Act is not applicable, because the search was not made from the person, but from the jerry bag held by him. In this regard learned trial court has relied on the decision in the case of State of Punjab v. Baldev Singh, reported in (1999) 6 SCC 172 and State of Punjab v. Jasbir Singh and others, reported in (1996) 1 SCC 288 , wherein compliance of section 50 of the N.D.P.S. Act was discussed. The learned trial court after going through the said decision reached the conclusion that section 50 of the Act would apply only when the search of a person is concerned, but not the baggage of a person. It is true that the aforesaid decisions are rendered in the said fact and circumstances of the case. The case of State of Punjab v. Baldev Singh (supra) is a Constitutional Bench judgment, wherein at paragraph-12 it is clearly observed by the Hon’ble Supreme Court that section 50 of the Act come into play only in case of search of a person as distinguished from search of any premises etc. 19. The case of State of Punjab v. Baldev Singh (supra) is a Constitutional Bench judgment, wherein at paragraph-12 it is clearly observed by the Hon’ble Supreme Court that section 50 of the Act come into play only in case of search of a person as distinguished from search of any premises etc. 19. With due regard to the aforesaid decision, it appears that the learned trial court has not followed the decision properly, but it is clear from the decision that in case of search of a person, compliance of section 50 of the Act is mandatory, but if any bag, dickey or anything not being held by him, search of same does not require the compliance of section 50 of the Act. In the instant case the appellant while coming has held a jerry bag containing 5 K.Gs. 200 Grams of Ganja, compliance of section 50 of the Act is required and it has been proved. In terms of the above discussion, it appears that the offence under section 20(b)(ii)(B) of the Act is well proved against the appellant and conviction thereunder is well confirmed. 20. It is only urged by the learned counsel for the appellant that since the charge has been made under section 20(b)(ii)(B) of the Act, the maximum sentence of ten years is disproportionate to the charge leveled against him, because there is only allegation of recovery of 5 K.Gs. 200 Grams of Ganja from exclusive conscious possession of the appellant and the small quantity of Ganja in the Act is one K.G. and commercial quantity of Ganja is 20 K.Gs. Learned Additional Government Advocate fairly conceded with the principle of law while awarding sentence to the convict. 21. Since in the instant case, there is seizure of 5 K.Gs. 200 Grams of Ganja and there is no previous conviction proved in this case, the punishment cannot be said to be proportionate to the quantity of Ganja seized from the possession of the appellant. Hence, keeping in view the quantity of Ganja seized, fact that the appellant has no previous conviction proved or any criminal antecedent proved and the appellant is only 42 years old, he is awarded R.I. for five years instead of ten years as awarded by the learned trial court, but the sentence of fine with the default sentence as awarded by the learned trial court would remain as such. In the result, the Jail Criminal Appeal is partly allowed by modifying the sentence as discussed above. The L.C.R. be returned forthwith.