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2019 DIGILAW 595 (ORI)

Sk. Abdul Nayeem v. State of Orissa

2019-09-19

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The appellant by filing this appeal has assailed the judgment of conviction and order of sentence dated 28.08.1992 passed by the learned Sessions Judge, Mayurbhanj-Baripada in S.T. Case No. 133 of 1990. By the said judgment this appellant (accused) with other accused, namely, Sanjee Chowdhury have been convicted for commission of offence under Section 20(b) of the Narcotic & Psychotropic Substances Act, 1985 (for short 'the N.D.P.S. Act') and each has been sentenced to undergo rigorous imprisonment for a period of four years and pay fine of Rs. 2,000/- in default to undergo rigorous imprisonment for one year. 2. Prosecution case in short is that on 20.05.1990 when there was a traffic congestion at the check gate situated at Jamsola in the district of Mayurbhanj, the Inspector of Police, the O.I.C., Jharpokharia police station with one Sub-Inspector of Police went to the place in the official jeep being driven by police driver. It is stated that when the jeep reached near the old petrol pump, it was detected that an old Ambassador car bearing registration No. WMB 7651 was coming on a kachha road running from the side of the village Hatibari connecting the National Highway, much ahead of the check gate so as to avoid the passing of the car through the check gate. It is the further case of the prosecution that when the car reached near the Highway, the police officials stopped the same and carried out necessary checking. In total three persons were there in the car and this accused Sk. Abdul Nayeem is said to be on the driver seat whereas other two were the occupants. It is stated that in course of search several polythene and paper packets were found near the rear seat and in the dicky of the said Ambassador car. Those being torn, ganja was detected to have been kept therein. The matter was immediately informed to the Superintendent of Police and Superintendent of Excise, Mayurbhanj. The car with packets was brought to the Jharpokharia police station, so also the accused persons. Within a short time, when one Excise Inspector reached the police station being deputed by the Superintendent of Excise, he selected 4 to 5 packets at random and upon verification of the contents, confirmed the same to be ganja. The car with packets was brought to the Jharpokharia police station, so also the accused persons. Within a short time, when one Excise Inspector reached the police station being deputed by the Superintendent of Excise, he selected 4 to 5 packets at random and upon verification of the contents, confirmed the same to be ganja. It is said that each of the 136 packets in the said car was weighing 2 kgs. The packets were then seized in presence of the officials and independent witnesses. Paper slips over those were affixed and finally the packets were sent to the Court Malkhana. Samples being drawn from each packet in presence of the learned Judicial Magistrate, Baripada those were sent for chemical examination. Report has come that the contents of the sample packets were nothing but ganja. On completion of investigation, charge-sheet having been submitted, the accused persons faced the trial for commission of offence under Section 20(b) of the N.D.P.S. Act. In view of the fact that accused Nawal Kishore Singh escaped from jail, the case stood split up and this accused Sk. Abdul Nayeem and the other, namely, Sanjee Chowdhury faced the trial. 3. This accused in the trial took the plea of denial and false implication. It has been specifically stated that he was driving a truck in the Jamsola area. He being picked up for violation of the provision of Motor Vehicles Act and Rules and as the demand made by the police officials could not be met by him, he being taken to the Jharpokharia police station has been booked in the case. In the trial, the prosecution has examined eight witnesses. Out of them P.W. 1 is the Inspector Excise whereas P W. 2 is the driver of the Jeep wherein police officials had gone to the Jamsola check gate An independent witness has been examined as PW 3, who happens to be a local cultivator, Circle Inspector of Police has come to the witness box as P.W. 4, the person witnessing the entire proceeding right from the detention of the car till the seizure of incriminating packets has been examined as P.W. 5. One hotel keeper having witnessed the seizure has come to the box as P.W. 6. P.W. 7 is the then Sub-Inspector of Police, a member of the party and P.W. 8 is the then O.I.C. of the police station. One hotel keeper having witnessed the seizure has come to the box as P.W. 6. P.W. 7 is the then Sub-Inspector of Police, a member of the party and P.W. 8 is the then O.I.C. of the police station. From the side of defence two witnesses have been examined. One of them claims to be the helper of a truck then standing near Jamsola check gate and the other claims to be present at the point of time when the accused was picked up by the police officials. Besides leading oral evidence, prosecution has also proved lot man documents, such as, the seizure list, forwarding report sent by the I.O to the court, FIR etc. 4. The trial Court on examination of evidence and upon their evaluation has recorded a finding of guilt against the accused as also the other accused Sanjee Chowdhury for being in possession of 2 Quintals 72 kgs of ganja (cannabis) in 136 packets and carrying those in the Ambassador car bearing registration No. WMB 7651 attracting criminal liability under Section 20(b) of the N.D P.S. Act. Having said so, this accused and other namely, Sanjee Chowdhury have been sentenced to undergo rigorous imprisonment for a period of four years and pay find of Rs. 2,000/- in default to under rigorous imprisonment for a period of one year. 5. Learned Amicus Curiae, submits that in the particular case, when it is stated by the prosecution that 136 packets containing ganja had been seized from the Ambassador car which was being driven at the relevant point of time by this accused-Sk. Abdul Nayeem there is absolutely no evidence with regard to their safe keeping from the time of detection even till the trial. He submits that, no document has been proved to show that those had been sent from the police station to the court Malkhana and safely stored therein till drawal of the samples from those 136 packets. It is submitted that when the learned Judicial Magistrate has simply noted that the samples had been drawn by the one Shri Rabi Narayan Behera, P.W. 7, S.I. of Police, Jharpokharia Police Station, in his presence that to on 25.08.1990; nothing more is indicated therein as to wherefrom those packets were brought and produced and as to if those being in properly sealed condition were opened, if so by whom before the samples were drawn. He submits that it has also not been indicated in the order-sheet as to whether the sample packets were thereafter sealed in presence of the learned Magistrate to avoid any meddling and thereafter who kept the sample packets till those came to be produced before the learned S.D. J.M. for being forwarded to the Chemical Examiner under the forwarding letter. He contends that no order has also been passed to the effect that before the learned S.D.J.M. earlier seals put on those sample packets were found to be intact. In view of the above, when those 136 packets said to be containing ganja have simply been produced before the trial Court and marked as material objects, it cannot be said that the samples examined by the Chemical Examiner had been taken from those very 136 packets seized at the spot. He therefore urges that finding of the trial Court that the accused was involved in carriage of said 136 packets containing ganja is not sustainable even accepting the prosecution case that the vehicle driven by the accused had been intercepted by police on its way and 136 packets had been recovered. According to him, the evidence on record are wholly deficient to conclude that the samples having been taken from those 136 packets found from the car had been found by the Chemical Examiner to contain ganja. On the above lone ground, he urges for setting the judgment of conviction and order of sentence at naught. Learned Additional Standing Counsel submits that such plea as to the safe keeping having not been taken by the defence at all during the trial and also when those 136 packets had been produced before the trial Court along with the 136 packets of samples and marked as M.O.-I and M.O.-II respectively, the submission of learned Amicus Curie as to lack of evidence regarding the safe keeping of 136 packets is not acceptable. He further submits that the record reveals that the Investigating Officer (P.W. 7) had made a prayer before the court below to receive those 136 packets seized from the car and therefore when on 23.08.1990 order has been passed that the samples be taken from the articles kept in court Malkhana, it is no more in doubt that those 136 packets had been kept in the court Malkhana from the date of filing of the application. He however, fairly submits that the order-sheet of the court below does not indicate as to whether said prayer of the Investigating officer for keeping of those 136 packets in the court Malkhana having been allowed, 136 packets had been kept properly in Malkhana and when on 25.08.1990 pursuant to the order dated 23.08.1990, the learned Magistrate had written in the order sheet that samples had been collected and it is seen from the report of the Chemical Examiner that he had received and examined 136 sample packets, the link established and the factum of safe keeping of those 136 packets has to be accepted. He, therefore, submits that the finding of the trial Court that those 136 packets of ganja had been recovered from the car drive in by this accused is unassailable on that ground as urged by learned Amicus Curie. 6. Going address the above submissions, let's first of all advert to the case of the prosecution. It is stated that on 20.05.1990 around 2.00 pm, the car was stopped and this accused with two others were present inside the car and then 136 packets were found to have been kept in that car. So the vehicle with those packets were brought to the police station and so also those occupants including this driver of the car and there the weighment was made, when it was found that the each packet was weighing two kgs. Thereafter in presence of the Sub-Inspector of Excise, those packets were sealed and seized: This accused with the other have been forwarded in custody to the court on 22.05.1990 as against the detection on 20.05.1990. Although P.W. 1, the Inspector of Excise has stated that out of 136 packets, selecting five packets at random, those were opened and with his experience, he found the contents to be ganja; yet he is not stating that after weighment the packets and their seizure, what happened to those 136 packets. P.W. 2 the driver of the jeep in which the police personnel had travelled when has stated that in his presence after recovery of the packets from the car, one packet was opened by the O.I.C., i.e. P.W. 8, he is again silent as to what happened thereafter to those 136 packets. P.W. 2 the driver of the jeep in which the police personnel had travelled when has stated that in his presence after recovery of the packets from the car, one packet was opened by the O.I.C., i.e. P.W. 8, he is again silent as to what happened thereafter to those 136 packets. The Circle Inspector of Police (PW 4) having stated that those packets were finally sealed after the weighment, has not spoken a word about their keeping thereafter. Such is also the evidence of the independent seizure witnesses (P.W. 5 & 6). The Investigating Officer P.W. 7 has stated that on 23.08.1990, he made a prayer before the learned S.D.J.M., Baripada for collection of samples and on 25.08.1990 being directed by the learned S.D.J.M.; learned J.M.F.C., Baripada remained present when samples were collected from each of the seized packets. He is not speaking a word as to where those 136 packets had been kept till the collection of the sample and even where the samples were collected and thereafter what happened to those 136 packets as also those 136 sample packets. He being the investigating officer has not deposed as to in what manner, he dealt those 136 packets till their production for keeping in Court Malkhana and what precaution he had taken by keeping those in which place. He is silent as to who sealed those packets after collection and whose seal was used for the purpose: P.W. 8 the O.I.C. has come forward to say that on 22.05.1990 he had prayed before the learned S.D.J.M. for storing the seized property in court malkhana and that after obtaining orders, he produced those in court on 25.05.1990 and then those had been kept in court Malkhana. The order-sheet of the court below does not reveal as to the production of those 136 packets for being kept in court malkhana and no order to that effect has been passed. It is rather seen from the order-sheet that on 23.08.1990 the learned S.D.J.M. directed that the samples be taken in presence of the learned J.M.F.C. in the court malkhana. On 25.08.1990 learned J.M.F.C. simply mentions in the order that P.W. 7 collected the sample in his presence. How much number of sample packets were prepared and whether those were in sealed condition or not has not been indicated and it is no where mentioned that the seals were intact. On 25.08.1990 learned J.M.F.C. simply mentions in the order that P.W. 7 collected the sample in his presence. How much number of sample packets were prepared and whether those were in sealed condition or not has not been indicated and it is no where mentioned that the seals were intact. Even it is not stated as to who produced those, 136 packets before the learned Magistrate and where the samples were taken and packets were prepared. Forwarding report (Ext. 3) reveals that the seized ganja had been sent to the court on 24.05.1990 and on 25.08.1990, sample packets were collected at court malkhana in presence of learned Magistrate. It has not been indicated that after production of (Hose 136 packets those had been kept in court malkhana and that those were produced when the seals were untampered. There is no evidence as to whose seal was used for the purpose at any point of time and in whose zima those seal/s had been kept and that there was any comparison of the specimen impression of the seal at any point of time. The prosecution is required to prove the proper sealing of seized articles and their safe keeping so as to completely eliminate the scope of tampering with such articles not only during their retention by the investigating officer but also thereafter till the drawal of the samples and thereafter. The burden of proof to establish the above facts through clear, cogent and acceptable evidence lies on the prosecution to satisfy that the samples had been collected from those packets found from the possession of the accused and those very sample packets were examined by the Chemical Examiner. The evidence as discussed are wholly unsatisfactory on the above point so as to fashion criminal liability upon this accused, Sk. Abdul Nayeem for carrying the ganja (cannabis) in the Ambassador car. 7. In view of the above arrived conclusion, the finding of conviction returned against the accused Sk. Abdul Nayeem cannot sustain. 8. In the result the appeal is allowed and the judgment of conviction and order of sentence passed against this accused Sk Abdul Nayeem are set aside. Consequently, the accused Sk. Abdul Nayeem is acquitted of the charge under Section 20(b) of the N.D.P.S. Act. The bail bond executed by the said accused shall stand discharged.