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2018 DIGILAW 779 (ORI)

Pushpendra Sonwane v. State of Odisha

2018-09-03

J.P.DAS

body2018
JUDGMENT J.P.DAS, J. - The three appellants stood convicted under Section 29 (b) (ii) (C) of the Narcotic Drugs Psychotropic Substances Act (in short “the N.D.P.S. Act”) by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial No.52 of 2010 and have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,00,000/- (two lakhs) in default, to undergo further rigorous imprisonment for two years each. 2. The prosecution case is that on 30.05.2010 night the S.I. of Police one H.R. Dash of Orkel Police Station while performing Anti-naxal night patrolling duty along with other staff, found a vehicle coming from Balimela side in high speed without having number plate. On suspicion, the vehicle was detained in front of the Orkel P.S. and three persons namely, the present three accused persons were found as occupants of the vehicle who tried to run away but were apprehended by the Police. On interrogation, they disclosed their identity but on demand, could not produce any document in respect of the vehicle, for which under suspicion, the officers asked the accused persons to open the tarpaulin cover put on the carrier. Eighteen numbers of jute bags were found inside the carrier and on opening the same, it was found out that all these bags carried contraband ganja giving foul smell. It is further case of the prosecution that on interrogation, the accused persons confessed to have been carrying the contraband ganja from one Malia Parida and Sunil Agrawal of Chitrakunda to deliver the same to one Sunil Patel at Jeypore. The concerned S.I. of Police informed the Inspector in-charge of the Orkel Police station and since it was chance detection, the formalities required under Section 42 and Section 57 of the N.D.P.S. Acts could not be complied with. Thereafter, the two independent witnesses and a weighman were called to the spot. One Photographer was also called to take photographs. In presence of the witnesses, the contraband ganja was weighed and was found to be 577.5 Kgs. The samples in duplicate were taken from each of the packets found in the bags and were sealed putting paper slip and personal seal of the officer who left the brass seal in zima of the independent weighman namely, Bipin Kumar Nayak. In presence of the witnesses, the contraband ganja was weighed and was found to be 577.5 Kgs. The samples in duplicate were taken from each of the packets found in the bags and were sealed putting paper slip and personal seal of the officer who left the brass seal in zima of the independent weighman namely, Bipin Kumar Nayak. Thereafter, the officer produced the accused persons along with the seized articles and a written F.I.R. before the Inspector-in-charge of Orkel Police Station who directed one Inspector D.N. Bhoi to take up the investigation of the case. The said Inspector of Police resealed the sample packets and the bulk articles and kept those in police station malkhana. He, thereafter, forwarded the accused persons as well as the seized materials to the court of learned Special Judge, Malkangiri. As per direction of the learned Special Judge, the materials were produced before the learned S.D.J.M., Malkangiri on the next day, who directed to send the sample packets for chemical examination to R.F.S.L., Berhampur, and asked the police officer to keep bulk articles in the police station malkhana due to want of space in the court Malkhana. The charge of the investigation was subsequently handed over to another S.I. of Police due to transfer of the first Investigating Officer, who submitted the charge-sheet in the case. 3. The accused persons took a plea of complete denial with a further plea advanced through one witness examined on behalf of the defence who was the owner of the seized vehicle that the vehicle had gone to bring jackfruits but it was falsely and illegally detained and seized by the Police Officers with fake allegation. 4. Thirteen witnesses were examined on behalf of the prosecution as against one preferred by the accused persons in defence besides exhibiting some documents. P.Ws. 1 and 3 are independent seizure witnesses, P.W. 2 is a Constable present at the time of detection. P.W. 4 is another Constable who produced the accused persons and the seized articles before the learned S.D.J.M., Malkangiri and also carried the sample packets to R.F.S.L., Berhampur. P.Ws. P.Ws. 1 and 3 are independent seizure witnesses, P.W. 2 is a Constable present at the time of detection. P.W. 4 is another Constable who produced the accused persons and the seized articles before the learned S.D.J.M., Malkangiri and also carried the sample packets to R.F.S.L., Berhampur. P.Ws. 5 and 6 are two Home Guards examined as seizure witnesses, P.W. 7 is the concerned S.I. of Police who submitted the charge-sheet, P.W. 8 is the Photographer, P.W. 9 is the detecting officer and the informant, P.W. 10 is the weighman, P.W. 11 is the Investigating Officer who completed the most part of the investigation, P.W. 12 was the driver of the police jeep at the time of detection and P.W. 13 was another seizure witness. The D.W. 1 was the owner of the vehicle. 5. The learned trial court on analysis of the evidence and materials placed during trial reached the conclusion that the prosecution successfully established the allegation of recovery and seizure of 577.5 Kgs. of contraband ganja from the illegal and unauthorized possession of the accused persons and accordingly convicted the accused persons under Section 20 (b) (ii) (C) of the N.D.P.S. Act and passed the impugned judgment of conviction and sentence. 6. It has been submitted on behalf of the appellants that the accused persons have been falsely implicated in this case and the learned trial court accepted the case of prosecution ignoring the settled position of law besides a number of material discrepancies and lacunae in the prosecution case. 6. It has been submitted on behalf of the appellants that the accused persons have been falsely implicated in this case and the learned trial court accepted the case of prosecution ignoring the settled position of law besides a number of material discrepancies and lacunae in the prosecution case. It was submitted by the learned Counsel for the appellants that it is the settled position of law and in view of the severity of the punishment in case of a conviction under Section 20 (b) (ii) (C) of the N.D.P.S. Act, it has been repeatedly observed by the Hon’ble Apex Court as well as Hon’ble High Courts that all the mandatory provisions under the N.D.P.S. Act must be strictly complied with by the Investigating Agency and the detail requirements to establish the allegation, must be proved before the trial court beyond all reasonable doubts so as to establish that the contraband articles were recovered and seized from the conscious possession of the accused persons and those were kept in safe custody during the period from recovery till the production of the same before the court as well as before the Chemical Examiner apart from compliance of required formalities by the Detecting as well as by the Investigating Officer. It was further submitted that in this case all the independent witnesses did not support the prosecution case. The prosecution simply relied upon the evidence of the official witnesses. Further the accused persons were not identified in the court during trial. The safe custody of the seized materials was absolutely lacking thereby creating serious doubt about the articles actually seized and sent for chemical examination. The required formality under Sections 57 of the N.D.P.S. Act was not complied with. Lastly, the bulk quantity of ganja was not produced before the court during trial. Hence it was submitted that the learned trial court seriously erred in law by reaching the conclusion of guilt, against the accused appellants. 7. The required formality under Sections 57 of the N.D.P.S. Act was not complied with. Lastly, the bulk quantity of ganja was not produced before the court during trial. Hence it was submitted that the learned trial court seriously erred in law by reaching the conclusion of guilt, against the accused appellants. 7. At the outset, it was submitted on behalf of the appellants that although it was the case of the prosecution that since it was a chance detection in course of night patrolling against naxal activities for which the mandates of Section 42 of the N.D.P.S. Act could not be complied with, still the place of detection as well as the place of entire search and seizure was admittedly in front of the Orkel Police Station which created serious doubt regarding the veracity of the prosecution case. 8. It was submitted that the alleged detection was made at around 4 A.M. and as per the Detecting Officer, P.W. 9, the independent witnesses were called to the spot at around 8 A.M. in whose presence the search and seizure were made. But, the seizure list shows the time of seizure to be around 1.50 P.M. vide Exhibit-1/1. It was further submitted that as per P.W. 9, the Detecting Officer, after his detection and taking of sample packets, he put his personal seal on the materials and left the seal in zima of the weighman one Bipin Kumar Nayak. Thereafter, as per the prosecution case when the materials were produced at the Police Station and investigation was taken over by another Inspector of Police, he again sealed those bags with his personal seal and kept the materials in the Police Malkhana. In this regard it was submitted on behalf of the appellants that the said independent witness namely, Bipin Kumar Nayak did not support the prosecution case nor the brass seal of the Detecting Officer was produced before the court. It was further submitted that the Investigating Officer who again put his seal, has also not stated as to whether his seal was left in zima of any person or the sample thereof was sent to the court and the forensic Laboratory. In this context, drawing attention of the court to the chemical examination report vide Exhibit-19, it was submitted that as per the report, a cardboard packet enclosed within the cloth cover was received containing nineteen sealed paper packets. In this context, drawing attention of the court to the chemical examination report vide Exhibit-19, it was submitted that as per the report, a cardboard packet enclosed within the cloth cover was received containing nineteen sealed paper packets. It was further mentioned that the impression of the seal corresponded to the seal impression forwarded. Thus, it was submitted that if two separate seals were put by two Officer, it is not known as to the sample of which seal was forwarded to the R.F.S.L.. Most importantly, it was submitted that although the Detecting Officer, P.W. 9 stated that he handed over his personal seal to the weighman Bipin Kumar Nayak, who turned hostile, under proper zimanama vide Exhibit-14, still the Exhibit 14 simply showed zima of weighing scale and did not show zima of any brass seal given to the said witness. Thus it was doubtful as to whether any seal was at all used by the seizing officer, much less the seal was left in zima of any independent witness. Obviously, the prosecution had no answer for the same. 9. In respect of safe custody, it was further submitted on behalf of the appellants that it was stated by the second Investigating Officer that he had seized the malkhana register of the Police Station under proper seizure list along with the relevant station diary entry, but neither the malakhana register nor the station diary entry was produced before the learned trial court except exhibiting the seizure list and the signatures thereon. Thus, it was submitted that the prosecution has not established sufficiently that the seized articles were duly kept in the police station malakhana before those were produced before the court. In this regard, it was further submitted that as per the prosecution case, the seized contraband materials along with sample packets and the accused persons were produced before the learned Special Judge, Malkangiri on 31.05.2010 and the learned Special Judge directed to produce the same before the learned S.D.J.M., Malkanagiri. In this regard, it was further submitted that as per the prosecution case, the seized contraband materials along with sample packets and the accused persons were produced before the learned Special Judge, Malkangiri on 31.05.2010 and the learned Special Judge directed to produce the same before the learned S.D.J.M., Malkanagiri. The concerned Constable of Police who carried the accused persons and produced before the court, appearing as P.W. 4 stated that on the next day he produced the bulk contraband ganja and the samples before the learned S.D.J.M., Malakangiri who passed the order for taking the samples to R.F.S.L., Berhampur and to return the bulk quantity to the police station malkhana due to want of space in the court malkhana. He again stated that on 02.06.2010 i.e. on the next day, he carried samples to the R.F.S.L., Berhampur and deposited the same there on 03.06.2010. In his cross-examination, he has stated that the articles were brought to the court in the seized vehicle and after direction by the learned Special Judge, the vehicle with the bulk ganja and sample packets therein was kept in the court premises till those were produced before the learned S.D.J.M. on the next day. On the next day, the S.I. of Police produced the same before the learned S.D.J.M.. Thus, it was submitted that admittedly as per the prosecution case, the seized articles after being produced before the learned Special Judge, were kept in a vehicle inside the court premises till the next day and there is no whisper from the prosecution side as to what steps were taken for safe custody of those articles during the relevant period. Further the concerned constable P.W. 4 stated that he took the sample packets on 02.06.2010 and deposited the same on 03.06.2010. The prosecution case is also absolutely silent as to how the samples were carried during transit. Stressing on the aforesaid circumstances, it was submitted on behalf of the appellants that the prosecution has miserably failed to establish the safe custody of the materials between the period from alleged recovery till chemical examination, the benefit of which, must go to the appellants. 10. Stressing on the aforesaid circumstances, it was submitted on behalf of the appellants that the prosecution has miserably failed to establish the safe custody of the materials between the period from alleged recovery till chemical examination, the benefit of which, must go to the appellants. 10. Going through the evidence and documents as placed, I do not find any acceptable answer in the impugned judgment passed by the learned trial court to the questions raised on behalf of the appellants in respect of the safe custody of the seized articles. It is the settled position of law that failure to establish the safe custody of the materials gives a benefit of doubt to the accused persons leading to their acquittal. 11. It was also submitted on behalf of the appellants that although it is the case of the prosecution that the bulk quantity of ganja was reported to be kept in police malkhana due to want of space in the court malkhana still those were not produced before the court during trial. As per the position of law held by the Hon’ble Apex Court, non-production of bulk materials before the trial court is a serious lacuna in the prosecution case. 12. As regards the oral evidence adduced on behalf of the prosecution, it was submitted that the independent witnesses did not support the prosecution case and the Detecting Officer appearing as P.W. 9 though stated about the prosecution story did not even whisper as to whether the accused persons standing in the dock were the persons detected with possession of contraband articles. 13. Lastly, it was submitted that Section 57 of the N.D.P.S. Act mandates that whenever any person makes any arrest or seizure under the Act, he shall within forty eight hours next after such arrest and seizure make a full report of all the particulars of such arrest and seizure to his immediate official superior. In this case P.W. 9, the concerned S.I. of Police made the seizure and arrest but he has not submitted any report. Such a report is said to have been submitted by P.W. 11, the subsequent Investigating Officer. In this case P.W. 9, the concerned S.I. of Police made the seizure and arrest but he has not submitted any report. Such a report is said to have been submitted by P.W. 11, the subsequent Investigating Officer. Hence, it was submitted that the Section 57 of the N.D.P.S. Act was not complied with apart from the fact that although the P.W. 11 stated to have seized the said report from the office of the S.D.P.O., Chitrakonda and proved the seizure list, still the said report was not brought into evidence. 14. It was submitted by learned Counsel for the State that the oral evidence of the official witnesses amply established detection and seizure from the possession of the accused persons and the said officers could not have been disbelieved since they had no axe to grind against the accused persons. It was also submitted that as per the settled position of law, mere absence of independent corroboration cannot be a ground to throw away the evidence of the official witnesses if it is otherwise consistent and reliable. But, the serious lacunae in the prosecution case as to safe custody of the materials, as discussed in detail hereinbefore, creates a serious doubt as to the nature of the articles allegedly recovered and seized from the possession of the accused persons, even if it is accepted for the sake of argument that some materials were recovered and seized from the possession of the accused persons accepting the version of the official witnesses. The safe custody of the materials during transit taken from the time of detection till production before the R.F.S.L., Berhampur was not sufficiently established, the brass seal said to have been given in zima of one independent witness did not find place in the concerned zimanama vide Exhibit 14, there was no explanation as to existence of two separate seals put by two officers on the seized articles, the concerned malkhana register was not produced before the court during trial and in the last but not the least, the bulk quantity of seized materials was also not produced before the court during trial. Taking all these aspects into consideration, there can be no escape from the conclusion that the prosecution did not succeed to establish the alleged recovery and seizure of contraband ganja from the possession of the accused-appellants and the benefit must go to them. 15. Taking all these aspects into consideration, there can be no escape from the conclusion that the prosecution did not succeed to establish the alleged recovery and seizure of contraband ganja from the possession of the accused-appellants and the benefit must go to them. 15. Accordingly, the impugned judgment of conviction and sentences passed by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in C.T. No.52 of 2010 convicting the accused-appellants under Section 20 (b) (ii) (C) of the N.D.P.S. Act is set-aside and the accused persons being acquitted of the charge are set at liberty. Since it was submitted that the accused-appellants are in custody, they be set at liberty forthwith if not required for detention in any other case. The seized materials be dealt with according to law. A copy of this judgment along with the L.C.R. be sent back to the trial court forthwith for information and compliance. Appeal allowed.