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2019 DIGILAW 414 (ORI)

Santosh Rathore v. State of Orissa

2019-06-20

S.PUJAHARI

body2019
JUDGMENT : S. Pujahari, J. 1. The judgment dated 07.04.2014 passed by the learned Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial No. 156 of 2013 convicting and sentencing the present appellants under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short "the N.D.P.S. Act"), is under challenge in this appeal. 2. Prosecution case, in brief, is that on 29.08.2012 at about 8.30 a.m., Sri Abhinash Reddy, the then S.I. of Police, Malkangiri Police Station (P.W. 8), being accompanied by other staff while being on patrolling duty at DPO Chhak, Malkangiri town, detected the present appellants transporting 'Ganja' in a Bolero vehicle bearing registration No. CG-12D-0526 from Kalimela side towards. Raipur in the state of Chhatisgarh. The P.W. 8 intercepted the said vehicle and in presence of witnesses and on observing the legal formalities, searched the vehicle and recovered from Inside the said vehicle 'Ganja' total weighing 97 Kgs. and 700 grams contained in 14 nos. of polythene bags. The P.W. 8 effected seizure of the same and collected samples in two parts from each of those bags and sealed the sample packets and the bulk substance kept in the corresponding containers at the spot by using his personal seal and also seized Bolero vehicle from the possession of the appellants at the spot. He arrested the appellants and produced them along with the seized contraband articles and the vehicle before the I.I.C., Malkangiri Police Station. He also drew a plain paper F.I.R. marked as Ext. 9 and lodged the same before the I.I.C., basing upon which, Malkangiri P.S. Case No. 120 dated 29.08.2012 was registered and further investigation was entrusted to Sri Sabyasachi Rout, another S.I. of Police of the same Police Station. (P.W. 9), for further investigation. The P.W. 9, in course of his part of investigation, visited the spot, recorded statements of the P.W. 8 and other witnesses, effected seizure of the relevant documents etc., forwarded the accused-appellants to the Special Court on 30.08.2012, produced the samples of the seized substance before the SDJM, Malkangiri on 31.08.2012, on which date the samples were sent to the RFSL for chemical examination, under the order of the SDJM, Malkangiri. On completion of investigation, the P.W. 9 submitted charge-sheet against the appellants suggesting their trial under Section 20(b)(ii)(C) of the NDPS Act. 3. On completion of investigation, the P.W. 9 submitted charge-sheet against the appellants suggesting their trial under Section 20(b)(ii)(C) of the NDPS Act. 3. The accused-appellants pleaded not guilty, for which they were tried before the Court below and the prosecution during the trial produced oral evidence of nine witnesses and documentary evidence vide Ext. 1 to 13. The sample packets were also produced before the Court vide M.O.I. to XIV. No evidence was adduced by the appellants in their defence. The learned trial Court on evaluating the evidence on record found the charge to have been substantiated against the appellants beyond reasonable doubts, and accordingly, they were convicted under Section 20(b)(ii)(C) of the NDPS Act and sentenced to the minimum punishment, i.e., R.I. for ten years and fine of Rs. 1 lakh, in default, to R.I. for another period of one year. Hence, the Appeal. 4. I have heard the learned counsel appearing for the respective appellants and the learned Addl. Standing counsel appearing for the respondent-State. 5. Assailing the conviction of the appellants, their learned counsel submitted, inter-alia, that the learned trial Court failed to scrutinize the prosecution evidence with required care and prudence vis-à-vis the prosecution story. It is contended by him that there has been no compliance of the mandatory provisions, particularly the provisions under Section 52, 55 and 57 of the NDPS Act, and the official witnesses are grossly inconsistent and incoherent on material particulars and there is also no independent. corroboration. It is further pointed out that the seized substance has not been produced during the trial and such omission has not been explained by the prosecution; Their ultimate argument is that for the apparent omissions; infractions and deficiency with the prosecution, the impugned judgment cannot be sustained in law. 6. The learned Addl. Standing counsel appearing for the respondent-State, on the other hand, submitted that the prosecution evidence being clear, cogent and clinching, and the finding of guilt recorded by the learned trial Court being based upon well discussion of the evidence on record,: there is no scope for this Court to interfere with the impugned judgment. He further added that the defence side during the trial having not been able to discredit the official witnesses much less with attribution of any bias or hostility to them, absence of independent corroboration on any aspect is of no consequence. He further added that the defence side during the trial having not been able to discredit the official witnesses much less with attribution of any bias or hostility to them, absence of independent corroboration on any aspect is of no consequence. He sought for dismissal of the appeal. 7. Keeping in view the rival arguments, I have gone through the impugned judgment vis-à-vis the materials on record. 8. In the case at hand, as it appears, although the independent witnesses, namely, P.Ws. 2 and 4 have affirmed their knowledge about the alleged seizure, there is. nothing in their evidence to connect the present appellants with the said incident. Another independent witness, namely, P.W. 3 has stated nothing in favour of the prosecution. Although the learned counsel appearing for the prosecution before the trial Court with the permission of the Court cross-examined those independent witnesses, nothing further could be elicited from them incriminating the accused-appellants. According to P.W. 8, after completion of the exercise of search, seizure etc. at the spot, he returned to the Police Station at about 10.30 a.m. and he did not visit the spot for the second time on the same date in connection with this case. His evidence is that after effecting the seizure and arrest of the appellants at the spot, he produced the appellants along with the seized substance before the I.I.C., and basing upon the F.I.R. lodged by him vide Ext. 9, a case was registered on the same date at 1.30 p.m. and the P.W. 9 was entrusted with the investigation. To put in other words, by the time the P.W. 9 took up the investigation, the appellants as well as the seized articles were already at the disposal of the I.I.C. But, the evidence of the Investigating Officer (P.W. 9) vide his cross-examination is that in course of his part of investigation, he went to the spot and remained there from 3.30 p.m. to 6 p.m. on the same, day and by the' time of his visit to the spot, the P.W. 8 was present at the spot along with other official witnesses. He could not remember as to whether or not the independent witnesses were present at the spot-by the time of his such visit. But, he has categorically stated that he saw the accused persons for the first time at the spot. He could not remember as to whether or not the independent witnesses were present at the spot-by the time of his such visit. But, he has categorically stated that he saw the accused persons for the first time at the spot. The wide difference between the version of P.W. 8 and P.W. 9 as noticed above gives rise to serious doubt as to the probative value of the prosecution case in so far as the factum of seizure at the spot is concerned. That apart, while according to the P.W. 8, samples were collected at the spot, the evidence of another official witness, namely, P.W. 1 vide his cross-examination is that the sample 'Ganja' was collected at the verandah of the Malkangiri Police Station. P.W. 8 has averred in the F.I.R. that the A.S.I. - Jalandhar Sethy (P.W. 5) brought his personal laptop, printer, portable gen set, metal seal and other sealing materials to the spot. But, while being in the witness box, neither the P.W. 5 nor the P.W. 8 uttered any single syllable in that regard. In that view of the matter, a doubt arises as to how the seal that was used in the sealing process, was procured at the spot. According to the prosecution, the personal seal of P.W. 8 had been left in the zima of the independent witness, namely, P.W. 2 at the spot, but neither the P.W. 2 proved the said fact nor the personal seal of the P.W. 8 was produced before the Court during the trial. For the discrepancy and omissions stated above, a doubt arises as to whether the M.Os. I to XIV were collected at the spot or at the Police Station, whether the accused persons and witnesses were present at. the time of the collection of samples, and whether those samples bore impression of the seal belonging to P.W. 8 or the Investigating Officer (P.W. 9) or the I.I.C. of the Police Station. 9. The prosecution also appears not to have produced any specific. evidence to show safe custody of the seized substance and/or the sample packets till those were produced before the S.D.J.M., Malkangiri. Neither the I.I.C. of the Police Station was examined nor the Station Diary entry or Malkhana register of the Police Station was produced during the trial. 9. The prosecution also appears not to have produced any specific. evidence to show safe custody of the seized substance and/or the sample packets till those were produced before the S.D.J.M., Malkangiri. Neither the I.I.C. of the Police Station was examined nor the Station Diary entry or Malkhana register of the Police Station was produced during the trial. The alleged seizure was made on 29.08.2012 as per the version of the P.W. 8 and the accused-appellants were produced before the Special Court on 30.08.2012 as per the version of the Investigating Officer (P.W. 9). But, there is no explanation from the side of the prosecution as to why there was delay in prosecution of the seized samples before the SDJM, Malkangiri inasmuch as according to the Investigating Officer, the seized samples were produced before the learned SDJM, Malkangiri on 31.08.2012 for the purpose of forwarding the same to the RFSL The aforesaid omissions give rise a reasonable doubt regarding the sampling, sealing and safe custody of the seized substance, and in the circumstances, it cannot be said that there has been a valid compliance of the provisions of Sections 52(4) and 55 of the NDPS Act. 10. The fourteen numbers of polythene bags containing bulk quantity of the substance as seized have not been produced before the Court during the trial and such omission also remains unexplained on record. Another discrepancy is also pointed out with reference to the forwarding report vide Memo No. 1006 dated 31.08.2012 of the SDJM, Malkangiri which admittedly accompanied the samples to the RFSL for necessary examination. The said forwarding report contains a note of the Investigating Officer with his signature giving out a brief description of the case incident. As per the said noting, fourteen number of polythene bags containing 'Ganja' total weighing 1000 Kgs. and 550 grams had been recovered from the Bolero vehicle in question from the possession of the appellants. But, the consistent case of the prosecution is that there was recovery of 97 kgs. 700 grams of 'Ganja' during the search of the vehicle. The said forwarding report being a part of the case record, cannot be lost sight of and the discrepancy noted above which is nonetheless material in nature, has not been reconciled by the prosecution. 11. But, the consistent case of the prosecution is that there was recovery of 97 kgs. 700 grams of 'Ganja' during the search of the vehicle. The said forwarding report being a part of the case record, cannot be lost sight of and the discrepancy noted above which is nonetheless material in nature, has not been reconciled by the prosecution. 11. When an offence is rated to be grave with the provision of severe punishment, the burden of the prosecution become heavy to produce evidence beyond any reproach leaving no room for any iota of reasonable doubt. In such a case, the duty of the Court also becomes equally onerous to give a stricter scrutiny to the evidence on record to find out as to if all the mandatory provisions of the 'statute have been duly complied with and if the charge is proved against the accused persons to the hilt. 12. For the whole discussion made hereinbefore, upon scrutiny of the materials on record, this Court does not find the prosecution to have been able to substantiate the charge against the appellants beyond reasonable doubt. The appellants being entitled to benefit of doubt, the impugned judgment of conviction and sentence against them cannot be sustained in law. 13. Resultantly, for the aforesaid reasons, this Criminal appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellants are set-aside. Consequently, the appellants are acquitted of the charge and they be set at liberty forthwith, if in custody, unless their detention is required otherwise. L.C.R. received be sent back forthwith along with a copy of the Judgment.