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2019 DIGILAW 433 (ORI)

Sonia Pujari v. State Of Orissa

2019-07-03

S.PUJAHARI

body2019
JUDGMENT : S.PUJAHARI, J. The judgment and order dated 30.06.2007 passed by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial No.79 of 2005 convicting the appellants under Sections 20(b)(ii)(B)/29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the N.D.P.S. Act”) and sentencing them to the minimum punishment as provided for those offences, is under challenge in this appeal at the instance of the appellants. 2. Prosecution case, in brief, is that on 21.05.2005 at about 12.30 p.m., Salkhu Murmu, the then S.I. of Police of Orkel Police Station, on receiving reliable information regarding the present appellants and two others being in possession of ‘Ganja’ inside the house of the appellant – Sonia Pujari for the purpose of transportation of the same, proceeded to the spot being accompanied by other police personnel, and on the way, he procured two independent witnesses. Before proceeding to the spot, S.I. Sri Salkhu Murmu, in absence of the O.I.C. of the Police Station, entered the fact in the Station Diary and intimated the substance of the said entry as well as his intention to proceed to the spot for the purpose of detection of the case, to his superior authorities. On arriving at the spot, he noticed that two persons, namely, Mohadev Pujari and Dinabandhu Pangi managed to flee away on seeing the police party, and then he gheraoed the house of the appellant – Sonia Pujari from outside, gave his identity to both the appellants, who were present there, explained them about the information received by him regarding the offences, and on observing other legal formalities, he conducted a search of the house of the appellant – Sonia Pujari and recovered from inside the house 7 no. of gunny bags containing ‘Ganja’, which on weighment came to be 64 kgs. in toto, collected two parts of sample, each weighing 25 grams from each of the bags, packed the sample packets as well as the gunny bags containing the bulk substance, sealed those bags and sample packets by using his personal seal and prepared seizure list in respect of them, left his seal in zima of one independent witness, namely, Sunadhar Khilla, arrested both the appellants at the spot, drew up the plain paper F.I.R. and sent the same to the Police Station for registration of a case and took up investigation at the spot. It further appears that the F.I.R. was registered at Orkel Police Statioin on the same day at 6.45 p.m. by the O.I.C. of the Police Station and further investigation of the case was entrusted to Sri R.K. Dehury (P.W.9), the then S.I. of Police posted at the same Police Station. In course of further investigation, the P.W.9 examined Sri Murmu and other witnesses, forwarded the appellants to Court on 22.05.2005, sent the samples under the order of the Court to R.F.S.L., Berhampur on 25.05.2005 for the purpose of chemical examination, effected seizure of the relevant documents, obtained the report of opinion from the R.F.S.L., Berhampur to the effect that the samples contained ‘Ganja’, got the spot house demarcated by a Revenue Inspector and on completion of investigation, he submitted charge-sheet under Section 20(b)(ii)(B)/29(1) of the N.D.P.S. Act against the present appellants as well as the other two accused persons, namely, Sukumar Biswas and Gunadhar Kabiraj showing them as absconders. 3. The learned trial Court framed charge against both the appellants under Sections 20(b)(ii)(B)/29(1) of the N.D.P.S. Act and since the appellants pleaded not guilty, trial was held, in course of which, the prosecution examined total ten witnesses and produced documentary evidence vide Exts.1 to 8. The sample packets were also produced before the Court during the trial vide M.Os.I to VII. The appellants adduced no evidence in their defence. 4. The learned trial Court on evaluating the evidence on record held the charge to have been substantiated against the appellants and sentenced each of them to undergo R.I. for ten years and pay fine of Rs.1 lakh, in default, to undergo R.I. for further period of two years for each of the offences, with a further direction that both the substantive sentences shall run consecutively. Hence, the Appeal. 5. I have heard the learned counsel appearing for the appellants as well as the Addl. Standing counsel appearing for the State, and perused the impugned judgment as well as the other materials on record keeping in view the rival contentions advanced before this Court. 6. The learned counsel for the appellants contended, inter-alia, that there is no legal evidence on record much less sufficient to bring home the charge against the appellants and that the learned trial Court rendered the conviction without application of judicial mind to the facts and evidence on record. 6. The learned counsel for the appellants contended, inter-alia, that there is no legal evidence on record much less sufficient to bring home the charge against the appellants and that the learned trial Court rendered the conviction without application of judicial mind to the facts and evidence on record. It is further contended by him that the mandatory provisions under Sections 42 and 50 of the Act have not been complied with, and there is also no material on record to show valid compliance of Sections 52 and 55 of the N.D.P.S. Act. His further submission is that although the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri while recording the evidence of the Investigating Officer noted inherent lacuna in the investigation and suspected the bonafides of the Investigating Officer, but while appreciating the evidence, he lost sight of those features. According to him, the prosecution in this case is a total failure, for which the impugned judgment is legally not sustainable. 7. Par contre, the learned Addl. Standing counsel appearing for the State submitted that mere defect or deficiency in investigation cannot be a ground to throw out the prosecution case when there is ample evidence on record to establish the charge. 8. The evidence of the Police officer, who conducted the alleged search and seizure, could not be procured during the trial due to his death. Out of ten witnesses examined by the prosecution, the independent witnesses, namely, P.Ws.1, 2 and 4 did not support the prosecution case during the trial. The prosecution sought to prove its case through evidence of rest of the witnesses examined who were police personnel. At the outset, it be mentioned here that when the offence is rated to be grave, entailed with heavy punishment, the burden of the prosecution becomes heavy to produce evidence beyond any reproach so as to rule out any iota of doubt regarding complicity of the accused persons. In such premises, the duty of the Court also becomes onerous to give a stricter scrutiny to the evidence on record to find out whether the charge is proved to the hilt leaving no room for any reasonable doubt. In the present case, having carefully gone through the materials of lower Court record, I am constrained to note that although the learned Addl. In the present case, having carefully gone through the materials of lower Court record, I am constrained to note that although the learned Addl. Sessions Judge-cum-Special Judge while recording the evidence of the prosecution witnesses made some adverse remarks regarding demeanor of some of the police witnesses including the Investigating Officer (P.W.9) and did not hesitate to reflect his opinion in the deposition of the P.W.9 itself that the investigation lacked bonafides, but what it further appears, he did not exercise the required care and caution while evaluating the evidence on record leading to a verdict of conviction and sentence against the appellants. In the impugned judgment, he has made a reference to some case laws of the Apex Court to inform himself of the settled principle of appreciation of evidence that the Court has to be circumspect in evaluating the evidence in the case of defective investigation and not to allow the contaminated conduct of officials to stand on the way of the evaluating the evidence on record. But, he is not found to have applied the said principle in right perspective. It is the rudimentary principle of appreciation of evidence in criminal trial that the prosecution owes a duty to establish its case beyond reasonable doubt, and it is also the duty of the Court to find out upon scrutiny as to whether or not the evidence adduced by the prosecution in a given case is cogent, reliable and sufficient to establish the charge beyond reasonable doubt. Dehors the defect or laxity in the investigation if the charge is proved by other evidence on record, the defect or laxity in the investigation shall not be allowed to come on the way of convicting the accused. To put it in other words, laxity or defect in investigation cannot be the sole ground to throw out a prosecution by ignoring the other evidence on record. 9. Reverting to the case at hand, the prosecution allegation is that the recovery of contraband ‘Ganja’ was made from the residential house of the appellant – Sonia Pujari. But, there is no reliable or sufficient evidence on record to prove that the house in question was in exclusive possession of the said appellant. 9. Reverting to the case at hand, the prosecution allegation is that the recovery of contraband ‘Ganja’ was made from the residential house of the appellant – Sonia Pujari. But, there is no reliable or sufficient evidence on record to prove that the house in question was in exclusive possession of the said appellant. Admittedly, his father was alive, and though the prosecution sought to show that he was staying in a separate house, the investigation has not been directed to establish that as to where exactly the father of Sonia Pujari was residing at the relevant time and whether he had no concern with the spot house or the family of Sonia Pujari. It is also the prosecution case that the appellant – Sonia Pujari was staying at the spot house along with his wife and children, but the details of the inmates of the said house have not been brought on record through evidence. According to the prosecution, the spot house was standing over a piece of Government land being encroached upon by the appellant – Sonia Pujari. P.W.5 is the Revenue Inspector, who deposed to have visited the spot for the purpose of identification pursuant to police requisition. He was not accompanied by any police personnel while making the spot visit nor any other person has been cited as witness to that spot visit. The requisition said to have been issued to him has also not been produced by the prosecution. Although the P.W.5 stated that there was encroachment case against appellant – Sonia Pujari, he could not say the number of the said encroachment case. In cross-examination he gave out that the spot was bounded by Government land on East, North and South and a canal on the West, and that there was a house over some encroached land towards the North at a distance. To put it in other words, as per his version, there was no house adjacent to or near by the spot house. But, P.W.7, a police personnel who has been cited as a witness to the search and recovery, has stated in paragraph-4 of his cross-examination that there were houses in both the sides of the spot house. To put it in other words, as per his version, there was no house adjacent to or near by the spot house. But, P.W.7, a police personnel who has been cited as a witness to the search and recovery, has stated in paragraph-4 of his cross-examination that there were houses in both the sides of the spot house. None of the prosecution witnesses including the Investigating Officer has claimed any personal or direct knowledge regarding possession of the appellant – Sonia Pujari over the spot house much less by way of encroachment of Government land or otherwise. In the above premises, it cannot be safely held that the house in question was in exclusive possession of the appellant – Sonia Pujari at the relevant time or that the alleged recovery was made from his exclusive possession. In so far as the other appellant – Nikhil Mallick is concerned, there is absolutely nothing from the side of the prosecution to suggest his any connection with the spot house or relationship with the appellant – Sonia Pujari. 10. The other glaring lacuna in the prosecution case is that there is no clear evidence on record regarding sampling and sealing of the seized substance and its safe custody. It reveals from the evidence of the P.W.9 that no seal of himself or the O.I.C. was used in the sample packets, inasmuch as at the relevant time, there was only one seal which belonged to the deceased – Salkhu Murmu. In paragraph-15 of his evidence, during cross-examination the P.W.9 stated that four days after the detection he sent the seized items to the Court on 25.05.2005 and till then, those items had been kept in the Malkhana of the Police Station under the control of the then O.I.C., Sri Himanshu Lal, IPS under training. But, neither the O.I.C. was examined nor the Malkhana register or any other document maintained in the Police Station was produced during the trial to vouchsafe the custody of the seized items. Apparently, the gunny bags containing bulk substance were not produced as material objects during the trial. There are also discrepancies in the evidence of the police witnesses regarding collection of sample or custody of the contraband articles. According to P.W.3, only one sample weighing 25 grams was collected. According to P.W.6, vide paragraph-7 of his evidence, two sample packets weighing 25 grams each were collected. There are also discrepancies in the evidence of the police witnesses regarding collection of sample or custody of the contraband articles. According to P.W.3, only one sample weighing 25 grams was collected. According to P.W.6, vide paragraph-7 of his evidence, two sample packets weighing 25 grams each were collected. There also arises grave doubt regarding the factum of seizure, when the versions of the P.Ws.8 and 10 are taken note of in this context. P.W.8 has no idea as to whether the house in question belonged to the appellant – Sonia Pujari or his father. In paragraph-9 of his evidence, during cross-examination he stated that the seized ‘Ganja’ was left in the zima of Home Guard – Subrat Haldar. He further stated that the ‘Ganja’ was kept inside the house being left in the zima of one person at the spot and the house was locked with key being retained by the raiding party. P.W.10, the driver of the police jeep, who had carried the raiding party to the spot, has stated in his evidence that he did not witness any seizure and that he brought back the police staff to the Police Station and no item (seized items) was brought in his vehicle. He also added that he did not bring the accused persons from the spot in the vehicle and no independent witness also returned in his vehicle. It may be mentioned here, the prosecution has not attributed any hostility to the aforesaid witnesses during the trial. 11. As per the F.I.R. drawn by the deceased -Salkhu Murmu on receiving reliable information regarding the alleged possession or preparation for transportation of the contraband ‘Ganja’, he proceeded to the spot after making Station Diary entry and giving intimation to the higher authorities in purported compliance of Section 42 of the N.D.P.S. Act. But, during the trial, the prosecution does not appear to have proved the relevant Station Diary entry or intimation said to have been sent by the deceased police officer to his higher authorities. As already noted, the then O.I.C. of the Orkel Police Station was not examined during the trial. Hence, the prosecution cannot claim to have proved due compliance of Section 42 of the N.D.P.S. Act. As already noted, the then O.I.C. of the Orkel Police Station was not examined during the trial. Hence, the prosecution cannot claim to have proved due compliance of Section 42 of the N.D.P.S. Act. For the discussion of evidence made hereinbefore, it cannot be said that the prosecution has been able to prove due compliance of the mandatory provisions of the N.D.P.S. Act or to have proved the charge beyond reasonable doubt against the appellants. The impugned judgment of conviction and order of sentence are held to be not sustainable in law. 12. Resultantly, 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.