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2019 DIGILAW 344 (ORI)

Judhistir Patra v. State of Orissa

2019-04-24

D.DASH

body2019
JUDGMENT : D. Dash, J. This appeal has been directed against the judgment of conviction and order of sentence dated 15.03.2003 passed by the First Additional Special Judge, Puri in T.R. Case No. 3/91 of 2001/2000. By the impugned judgment, the appellants have been convicted for commission of offence under section 21 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter called as 'the Act') and accordingly they have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each in default to undergo rigorous imprisonment for a period of two years. It may be mentioned here that during pendency of the appeal the appellant no.1 having died, the appeal in so far as that appellant no.1 is concerned has abated. In view of that the reference to the appellants hereinafter be taken as and for the appellant nos. 2 and 3. 2. The prosecution case in short is that on 19.08.2000 around 1.00 PM the I.I.C. of Konark Police Station (P.W.12) received reliable information as regards illegal possession of brown sugar (heroin) and sale of the same in the new bus stand area at Konark by the appellants. Having entered the same in the station book of the police station, he informed the said fact to the S.D.P.O. and Superintendent of Police, Puri over telephone in order to verify the correctness of the information. He with other police staffs left the police station at 1.15 PM in the official jeep carrying with them, two independent witnesses, P.Ws. 1 and 2. Having arrived at the Radio repairing shop of deceased accused Judhistir in the new bus stand area at Konark, they surrounded the said shop to prevent any one's escape from the place. It is stated that three persons were inside the shop and they gave their identity being so asked, who are the accused persons. Being told about the suspicion that they were having the brown sugar (heroin) with them, P.W.12 while expressing his intention to search, asked them as to whether they wanted to be searched in presence of a Gazetted Officer or an Executive Magistrate. It is stated that they opted in writing to be searched in presence of the Executive Magistrate. So, the A.S.I., P.W.7 was deputed to call the then Additional Tahasildar-cum-Executive Magistrate, P.W.6 to the spot for personal search of the appellants to be carried out. It is stated that they opted in writing to be searched in presence of the Executive Magistrate. So, the A.S.I., P.W.7 was deputed to call the then Additional Tahasildar-cum-Executive Magistrate, P.W.6 to the spot for personal search of the appellants to be carried out. He arrived at the spot and gave his identity to the appellants. After giving personal search of the members of the raiding party and also others present to the accused persons; and then observing all the formalities, personal search of the accused persons one after the other commenced around 2.00 PM in presence of the Executive Magistrate, P.W.6 and other witnesses, P.Ws. 1 and 2 inside that Radio repairing shop. It is next stated that one polythene packet of brown sugar (heroin) was recovered from the back side pant pocket of accused Judhistir (since dead) and the packet net content of the brown sugar come to weight 11 grams. Similarly, the personal search of Pravat being carried out, one polythene packet of brown sugar (heroin) was recovered from the left pocket of his shirt and the next weight of the contents of brown sugar (heroin) therein came to 7 grams; at last the personal search of accused Ajay was taken up and from his left front pocket of the shirt, a polythene packet containing brown sugar (heroin) of 6 grams was recovered. It is stated that the samples were collected from the contents of each of those packets recovered from the accused persons separately and all other formalities including the preparation of the seizure list etc were observed. It is the case of the prosecution that after the search, recovery, seizure and observation of all such formalities, at the spot, the accused persons were arrested around 5.30 PM and thereafter FIR was lodged at the Police Station giving rise to the registration of Konark P.S. Case No. 62 of 2000 for commission of offence under section 21 of the NDPS Act. 3. Finally on completion of the investigation and after obtaining the report from the chemical examiner which confirmed the samples sent for examination as 'Diacetyl Morphine' (heroin/brown sugar) charge sheet was placed. Accordingly, the accused persons faced the trial for offence under section 21 of the NDPS Act for being found to have been in possession of brown sugar (heroin). The case of the accused persons is that of complete denial and false implication. 4. Accordingly, the accused persons faced the trial for offence under section 21 of the NDPS Act for being found to have been in possession of brown sugar (heroin). The case of the accused persons is that of complete denial and false implication. 4. The trial court on analysis of evidence of twelve witnesses examined from the side of the prosecution and upon scrutiny of the documentary evidence, more particularly the FIR, Ext.4, seizure lists, report of the chemical examiner as also the consent memos said to have been given by the accused persons prior to their personal search, besides other documents has held the accused persons guilty for commission of offence under section 21 of the NDPS Act and they have been sentenced as aforesaid. Hence the appeal. 5. Learned counsel for the appellants at first submits that the finding of conviction returned by the trial court against the accused persons is vulnerable for non-compliance of the mandatory provision of section 50 of the N.D.P.S.Act. It is his submission that on close scrutiny of the evidence of P.Ws. 6 and 12 with a simultaneous reading being given to the evidence of other witnesses and on perusal of the seizure lists as well as the purported consent memos, no finding can be recorded that these accused persons were made aware of their right of being searched either before a Gazetted Officer or an Executive Magistrate and that as per their desire and volition they have been so searched before the Executive Magistrate, P.W.6, having so opted. According to him, the evidence on this score is wholly unacceptable and therefore the finding of conviction of the accused persons cannot be sustained as the very search and seizure forming the foundation of the prosecution case stand vitiated. In this connection, he has taken me through the depositions of the witnesses, especially P.Ws. 6 and 12 as also the seizure lists, Exts. 1/1, 2/1 and 3/1 and those consent memos. 6. Learned counsel for the State refuting the above submission contends that if the evidence of P.Ws. 6 and 12 are simultaneously read and appreciated in proper perspective, the finding of the trial court as to the compliance of the provision of section 50 of the Act cannot be found fault with. It is his submission that some minor discrepancies in the evidence of P.Ws. 6 and 12 are simultaneously read and appreciated in proper perspective, the finding of the trial court as to the compliance of the provision of section 50 of the Act cannot be found fault with. It is his submission that some minor discrepancies in the evidence of P.Ws. 6 and 12 ought not to be given so much of importance to discard their evidence in entirety as to the non-compliance of the provision of section 50 of the Act when there is no material to show that they had borne any grudge to falsely rope in the accused persons. 7. In view of the rival submission, keeping in mind the settled position of law that in case of personal search of a person suspected to be in possession of narcotic drugs or phycotropic substance, the compliance of the provision of section 50 of the Act in its letter and spirit stands as the mandate, the court is called upon to address the point raised by examining the evidence let in by the prosecution on that score in order to judge the sustainability of the finding of the trial court on that aspect. P.Ws. 1 and 2 who have been examined as the witnesses to the personal search of the accused persons as having gone with the members of the raiding party to the spot and who have been cited as witnesses to the so called seizure of brown sugar (heroin) from the possession of the accused persons have not supported the case of the prosecution and they having resiled from their previous versions given before the investigating officer, have been permitted to be cross-examined by the prosecution. It is their evidence that their signatures were taken on the blank papers though they have not seen any such search and seizure which form the foundation of the case of the prosecution. P.W.6 is the star witness of the prosecution in so far as the compliance of section 50 of the Act as also the search, recovery and seizure are concerned as he is the Executive Magistrate in whose presence the entire search of three accused persons is said to have been carried out leading to recovery of contraband items from their possession. It is his evidence that on 19.08.2000, the I.I.C., P.W.12 had given the requisition to the Sub-Collector for deputation of an Executive Magistrate sending a memo to him and accordingly, he arrived at the spot. He has not stated to be present at the spot by the time of arrival of the members of the raiding party and his evidence is that he had not accompanied the members of the raiding party. As per his version, P.W.12 went to the spot first with others and he arrived later. P.W.7 is the A.S.I. of Police who was a member of the raiding party. It is his evidence that from the spot, P.W.12 sent him to the Additional Tahasildar, P.W.6 with a requisition and he went in the official jeep with that requisition and brought P.W.6 to the spot whereas P.W.6 is silent to the effect that being approached by P.W.7 with the memo of the requisition, he went in the official jeep brought by P.W.7. The other witness is P.W.9 who being the constable is the member of the raiding party. His evidence is that after arriving at the spot with the members of the raiding party, they surrounded the shop of the deceased-accused Judhistir and then the IIC (P.W.12) called the Executive Magistrate and in presence of the Executive Magistrate they had conducted the search operation leading to recovery and seizure of the brown sugar from the possession of the accused persons. Now both the P.Ws. 6 and 7 are silent on the score that the accused persons were made aware of having the right of being searched in person in presence of an Executive Magistrate or a Gazetted Officer, if they so like and they so opted to be searched in presence of Executive Magistrate. None of these two witnesses has stated that to his seeing any such communication was initiated from the side of the P.W.12 with the accused persons and pursuant to their desire further on their giving the option in writing, the service of the Executive Magistrate was so requisitioned by P.W.12. P.W.10 is the another A.S.I. of Police and a member of the raiding party. He has gone to say that P.W.12 disclosed before the accused persons that he was entertaining the reasonable suspicion as to the possession of the brown sugar (heroin) by them and so wanted to search. P.W.10 is the another A.S.I. of Police and a member of the raiding party. He has gone to say that P.W.12 disclosed before the accused persons that he was entertaining the reasonable suspicion as to the possession of the brown sugar (heroin) by them and so wanted to search. This witness is silent whether the P.W.12 told the accused persons to exercise any such option as to the search in presence of Executive Magistrate and accordingly, based on that and pursuant to the exercise of their option of being searched before the Executive Magistrate, they gave it in writing and then the A.S.I. of Police was sent in the official jeep to bring the Executive Magistrate to the spot, where after the Additional Tahasildar, P.W.6 arrived. 8. Coming to the evidence of P.W.12, it is seen that on their arrival at the spot after he expressed his suspicion before the accused persons as to the possession of the brown sugar by them and his intention to have the personal search, he told the accused persons of the option which they enjoy by virtue of the statutory provision and pursuant to their desire of being searched in presence of the Executive Magistrate, the A.S.I. of Police was sent in the official jeep to bring the Additional Tahasildar-cum-Executive Magistrate who arrived some time thereafter. With such evidence as to the commencement of the search in presence of the Executive Magistrate P.W.6, on going through the seizure list, Ext.1/1 in support of the seizure of contraband from the possession of the accused-Judhistir since dead, it is found that the Executive Magistrate, P.W.6 was called after he exercised his option in his presence. Similar is the state of affair in the seizure list, Ext.2/2 in relation to the seizure of brown sugar (heroin) from the possession of accused Ajay. Keeping in view those two documents when the other seizure list concerning the seizure of contraband from accused Pravat is glanced at, it is seen that in the description of the same, there has been scoring of the word "PURBARU" meaning "before" or "prior to" which refers as to the presence of the Executive Magistrate at the spot before hand and not being called pursuant to the exercise of the option by the accused persons in that regard as available under section 50 of the Act. If the scoring is ignored, then it can be said that the same was carried after his arrival and in his presence and when the scoring is taken as such, then it has to be said that the Executive Magistrate was already present with the other members of the raiding party. With such discrepancy when the copy of the requisition given by the P.W.12 to the Sub-Collector requisitioning the service of the Executive Magistrate received in evidence and marked as Ext.14 is glanced at, it is seen to have been reflected there that the same has been sent after receiving the information as regards sale of the brown sugar at the spot and before proceeding to the place to ascertain the correctness of the said information but not after the accused persons so opted to be searched by giving in writing. The evidence of P.Ws. 6, 7 and 12 when are taken into consideration, it is seen that the Executive Magistrate arrived there after the accused persons exercised their option, whereas the connecting documents proved from the side of the prosecution as have been referred to above, do not speak so, that the service of the Executive Magistrate was requisitioned after the exercise of the option by the accused persons. Add to this, the doubt is fortified from the very factum of indication of the police station case number in all those options in writing, said to have been given by the accused persons and in the top of the seizure lists which have not been explained in any manner so as not to be viewed with suspicion. As the above discussed evidence on that score comes under the clouds, even accepting the prosecution case that the accused persons had exercised their option to be searched in presence of the Executive Magistrate, the very presence of the Executive Magistrate at the time of search of the accused persons and the consequential seizure are rendered doubtful. 9. In view of all the above, in my considered view, there can be no finding as to compliance of the provision of section 50 of the Act in its letter and spirit which is the base of the prosecution case, here. 9. In view of all the above, in my considered view, there can be no finding as to compliance of the provision of section 50 of the Act in its letter and spirit which is the base of the prosecution case, here. These available right for the accused are to safeguard them from false implication and planting in such cases having serious consequences and thus the evidence on that score have be to unimpeachable which is not the case here. In that view of the matter, the findings of the trial court on that score of compliance of the provision of section 50 of the Act is vulnerable for which the finding of conviction of the appellants for commission of offence under section 21 of the Act cannot sustain. For the aforesaid discussion and reasons, the judgment of conviction and order of sentence passed by the trial court in TR No.3/91 of 2001/2000 are liable to be set aside which is hereby done. 10. Accordingly, the appeal is allowed. The bail bonds executed by the accused persons shall stand discharged.