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2019 DIGILAW 605 (ORI)

Tankadhar Meher v. State of Orissa

2019-09-26

D.DASH

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JUDGMENT : D. Dash, J. 1. This appeal has been filed questioning the judgment of conviction and order of sentence dated 15.05.1993 passed by the learned Additional Sessions Judge, Bargarh in S.T. Case No. 25/27 of 1993. By the said judgment, the appellant (accused) has been convicted for commission of offence under Section 20(b) (i) Narcotic Drugs and Psychotropic Substances Act (for short, 'N.D.P.S. Act') and he has been sentenced to undergo rigorous imprisonment for a period of six months and pay fine of Rs. 500/- with default stipulation of rigorous imprisonment of one month. 2. Prosecution case, in short, is that on 28.08.1990 around 4.30 P.M. when the S.I. of Excise Bhatli (P.W 3) with Excise constable (P.W. 2) were on patrol duty on the State Highway near Gopalpur, they found accused coming from Nuapali side towards the school. At the sight of these Excise personnels, accused took to his heels. So, suspicious arose in the mind of P.W. 2 and 3 and they chased the accused and finally caught hold of him. P.W. 3 then searched the accused in presence of an independent witness (P.W. 1). On search, he recovered one paper packet containing 15 grams of ganja from the waist side knot put on the dhoti worn by the accused. The said packet containing ganja was seized and sample of 10 grams from out of it was collected for chemical examination Report came as positive. The accused then faced the trial for commission of offence under Section 20(b)(i) of the N.D.P.S. Act. 3. Plea of the accused is that of complete denial. In the trial, prosecution has examined altogether three witnesses as against nil from the side of the defence. Documents such as seizure list (Ext. 1/1), forwarding reports of the sample as well as the accused (Ext. 3 and 5) and the requisition (Ext 2) have also been proved. The sample packet as also the packet containing the residue ganja, having been produced during the trial, have been marked as M.O. 1 and 2. The trial Court, on analysis of evidence, both oral and documentary, has come to the conclusion that the prosecution has established its case beyond reasonable doubt by establishing the fact that the accused was in illegal possession of 15 grams of ganja on the relevant date and time when he was accosted on the way by P.W. 2 and 3. The trial Court, on analysis of evidence, both oral and documentary, has come to the conclusion that the prosecution has established its case beyond reasonable doubt by establishing the fact that the accused was in illegal possession of 15 grams of ganja on the relevant date and time when he was accosted on the way by P.W. 2 and 3. The plea raised during the trial that the quantity of ganja recovered from the accused, being 'small' within the limit as notified by the Central Government for personal consumption, the accused is not guilty for possession, of the same as he was having carrying those for his personal consumption, has been repelled. 4. Learned Amicus Curie submit that it being the prosecution case that the accused being searched in person, a packet containing 15 grams of ganja has been recovered from the waist side knot put on the dhoti; the mandatory provision of Section 50 of the Act very much stands for compliance which has not been done in the case According to him, PW 3 who is the Excise Sub-Inspector who has searched the accused has not stated a word about the said compliance that the accused being suspected to be having ganja was asked by him as to whether he wanted to be searched in presence of an Executive Magistrate or Gazetted officer as per his option, the entire search, recovery and seizure stands vitiated and, therefore, on this lone ground, the judgment of conviction falls Nat and consequently the imposition of sentence upon the accused has to be set aside. 5. Learned counsel for the State submits that since P.W. 3 searched the accused just having entertained a suspicion, the provision of section 50 of the Act although is mandatory in case of search of a person was not required to be complied with He, therefore, submits that in the case even if it is said that there has been non-compliance of the provision of Section 50 of the Act, the judgment of conviction and order of sentence cannot be set at naught on that ground. 6. In order to appreciate the rival submission, let us straight proceed to have a look at the evidence of P.W. 3. 6. In order to appreciate the rival submission, let us straight proceed to have a look at the evidence of P.W. 3. It is stated by him that having caught hold the accused, by giving his personal search to the accused as also the independent witness (PW 1), he recovered one paper packet containing 15 grams of ganja from the waist side knot put on the dhoti which was then being worn by the accused If this evidence is taken into consideration then it has to be said that this P. W. 3 just after entertaining a suspicion as to the possession of any such contraband by the accused was under legal obligation and duty bound to make the accused aware of the valuable right enjoyed by him as provided under Section 50 of the Act. It has been held in a catena of decisions of the Apex Court as also this Court that compliance of provision of Section 50 is mandatory and its compliance is required In letter and spirit, when it is a case of search of a person. This compliance in the case is essential to avoid the scope of planting, ensuring legal protection to the accused as against that Here the recovery is said to have been made from the waist side knot put on the dhoti worn by the accused and thus it cannot be said that it was not extricably connected with the person of the accused so as to hold that said non-compliance has no adverse impact upon the search, recovery and seizure, in the eye of law. 7. In that view of the matter, the search, recovery and seizure which form the foundation of the prosecution case stand vitiated. In view of the finding, as above, the judgment of conviction and order of sentence are rendered vulnerable. In the result, the appeal stands allowed. The judgment of conviction and order of sentence dated 15.05.1993 passed by the learned Additional Sessions Judge in Trial No. 25/27 of 1993 are hereby set aside. The bail bonds executed by the appellant (accused) shall stand discharged.