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2018 DIGILAW 689 (ORI)

Sania Panda v. State of Orissa

2018-07-26

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This appeal is directed against the judgment dated 13.01.2012 passed by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2(a) C.C. Case No. 09 of 2009 (N) convicting the accused-appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the N.D.P.S. Act’) and sentencing him to under R.I. for ten years and to pay a fine of Rs. 1,000/- in default to undergo further R.I. for three years. 2. The prosecution case was that on 28.12.2009 at about 8.30 A.M. while the Inspector of Excise, Excise Intelligence and Enforcement Bureau, Berhampur along with his staff was performing patrolling duty near Haridakhandi Chouk, Berhampur received a reliable information about transportation of contraband Ganja. He immediately reported the facts to the Deputy Commissioner of Excise, his immediate superior officer, and kept watch on the road. After sometime, the present appellant was found coming on a motorcycle with one attaché and one air bag tied to the backside of the motorcycle. The Inspector of Excise detained the accused on suspicion and enquired about the contents of those bags. On enquiry, the accused preferred to be searched by the Excise Inspector and accordingly, the search was conducted. It is alleged that on search 11 kgs. of contraband Ganja was recovered from the attaché and 9 Kgs. 500 grams of contraband Ganja was recovered from the air bag for which the accused did not have any authority to possess. The Excise Officer weighed the Ganja, took sample therefrom, seized the materials, left the brass seal in zima of the accompanying Excise Constable and arrested the accused. Then he made a request to the I.I.C. of the nearest Baidyanathpur police Station for keeping the seized properties in the police Malkhana and after completion of investigation, final prosecution report was submitted against the accused-appellant under Section 20(b)(ii)(C) of the N.D.P.S. Act. 3. In course of trial, the accused took the plea of complete denial and the prosecution examined two witnesses in support of its case as against none, preferred by the accused in defence. Learned trial Court, relying upon the evidence of the two witnesses, who were Inspector of Excise and one Excise Constable, accepted the prosecution case and passed the impugned judgment of conviction and sentence. 4. Learned trial Court, relying upon the evidence of the two witnesses, who were Inspector of Excise and one Excise Constable, accepted the prosecution case and passed the impugned judgment of conviction and sentence. 4. It has been submitted in the appeal that the learned trial Court seriously erred in law by holding the appellant guilty of the offence ignoring the glaring discrepancies and deficiencies in the prosecution case apart from failing to consider the settled positions of law. It was submitted by learned counsel for the appellant that the prosecution case not only suffered from factual deficiencies but also from serious legal lacuna and the impugned judgment is absolutely unsustainable in the eye of law. 5. On the factual side, it was submitted that although one independent witness was cited in the prosecution report to have witnessed the search and seizure, still he was declined by the prosecution to be examined. Secondly, although the alleged detention was on a public road with traffic as admitted, still no other independent witness was cited by the prosecution to support its case. Thirdly, the P.W. 1, the accompanying constable, stated to have weighed the Ganja whereas P.W.2, the Inspector of Excise claimed to have weighed the Ganja. Fourthly, no effort was made by the Investigating Officer to find out the ownership of the motorcycle and further no document was seized from the possession of the appellant to show that he had any relationship with the said motorcycle. Fifthly, as per the prosecution case after the detection and seizure, the Inspector of Excise made a request to the I.I.C., Baidyanathpur Police Station to keep the seized materials in safe custody but excepting the copy of the letter written by the Inspector of Excise to the I.I.C., Baidyanathpur Police Station, nothing has been brought on record to show that the properties were received at the concerned Police Station or were kept in safe custody till those were produced before the trial Court. There is absolutely no material on record to show that the properties were actually kept in the Police Malkhana or for what period it was kept and when it was produced before the trial Court. There is absolutely no material on record to show that the properties were actually kept in the Police Malkhana or for what period it was kept and when it was produced before the trial Court. It was also submitted that the Inspector of Excise stated in his evidence that he drew sample of Ganja recovered from the two containers at the spot but, he has again made a request to the Special Court for drawal of sample. Thus, it was submitted that if the materials were kept in Police Malkhana after the seizure and drawl of sample then it was not known as to why further request was made to the Court for drawl of sample and if so, from what it was to be drawn. On legal side, it was submitted by learned counsel for the appellant that the mandates under Section 42 of the N.D.P.S. Act have not been complied with by the Investigating Officer. According to the P.W.2, he received the information while performing the patrolling duty and immediately informed his superior authority vide Ext. 5. It was submitted that Ext. 5 is a copy of the letter written by the P.W. 2 but it was neither stated to nor was proved as to who carried the letter to the addressed authority or whether that was received in the office and if received, at what time and on what date. It was also submitted that as per the position of law, the brass seal used by the officer for sealing the properties should have been left in custody of the independent witness but as per prosecution case, it was left in zima of P.W.1 the accompanying constable of Excise Department. 6. Per contra, it was submitted on behalf of the State that the material discrepancies as pointed out were minor in nature and the learned trial Court was justified in reaching the conclusion of guilt against the accused-appellant basing on the evidence of P.Ws. 1 and 2 two official witnesses, whose evidence did not suffer from any consistency. It was also submitted that as per settled position of law, non-availability of independent evidence or independent corroboration to the evidence of official witnesses, does not always affect the case of the prosecution, if the evidence of the official witnesses are wholesome and acceptable as has been in this case. 7. It was also submitted that as per settled position of law, non-availability of independent evidence or independent corroboration to the evidence of official witnesses, does not always affect the case of the prosecution, if the evidence of the official witnesses are wholesome and acceptable as has been in this case. 7. Going through the impugned judgment along with the materials available on LCR, taken together with the depositions of two official witnesses, the submissions as made on behalf of the appellant glared at the prosecution case with doubt and disbelief. As submitted on behalf of the appellant, the prosecution case suffered from serious factual discrepancies and deficiencies. No effort was made to find out the ownership of the motorcycle and its relation with the accused. Although the place of detection was a public road, having traffic, still the detecting officer opted to cite only one independent witness and again the said witness has been declined by the prosecution to be examined. Further as stated earlier, the Investigating Officer made a request to the I.I.C., Baidyanathpur Police Station to keep the properties in safe custody. But nothing at all has been brought on record as to whether the properties were duly kept in safe custody and if so, as to for what period it was kept and when it was produced before the Court. The relevant Malkhana Register of the Police Station has not been produced before the Court. As per settled position of law in a case under the N.D.P.S. Act, the safe custody of the properties during transit is an important factor to be taken care of while considering the case of prosecution and in this case, this was not at all established on the admitted positions thereby giving the benefit of doubt to the accused. 8. Now coming to the legal aspects, the brass seal used by the officer should have been given in zima of an independent witness but it was not done so despite availability of the independent witness. As regards compliance of Section 42 of the N.D.P.S. Act, the prosecution simply proved the office copy of the letter written by the detecting authority. As submitted on behalf of the appellant, it has not at all been tried to be proved as to whether the letter was actually dispatched and was received at the office of the superior authority. As regards compliance of Section 42 of the N.D.P.S. Act, the prosecution simply proved the office copy of the letter written by the detecting authority. As submitted on behalf of the appellant, it has not at all been tried to be proved as to whether the letter was actually dispatched and was received at the office of the superior authority. That became more doubtful for the reasons that the original letter was not seized and it was not known as to who carried the letter or how it was sent to the superior authority since as per prosecution case, the P.W.2 received the information about the illegal transportation of Ganja while he was on patrolling duty and not in the office. This was a serious lacuna suffered by the prosecution case and it needs no citation of case law that failure of compliance of the mandates of the Section 42 of the N.D.P.S. Act entitles the accused-appellant for a clean acquittal. 9. In view of the aforesaid facts added with the absence of independent evidence made me reluctant to accept the findings reached by the learned trial Court that the prosecution was successful in establishing the alleged offence under Section 20(b)(ii)(C) of the N.D.P.S. Act against the accused-appellant beyond all reasonable doubts. 10. Accordingly, the impugned judgment dated 13.01.2012 passed by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2(a) C.C. Case No. 09 of 2009 (N) is set aside and the accused-appellant stands acquitted of the charge under Section 20(b)(ii)(C) of the N.D.P.S. Act. The accused-appellant be set at liberty forthwith, if he is not required to be detained in custody for some other reasons. Appeal allowed.