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2020 DIGILAW 83 (ORI)

Nandan Kumar Mahanta v. State Of Odisha

2020-03-12

B.P.ROUTRAY

body2020
JUDGMENT B.P. Routray, J. - The judgment of conviction dated 05.07.2017 sentencing the appellant for 10 years of rigorous imprisonment and fine of Rs.1,00,000/- for commission of offence under Sec.20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, NDPS Act) by the 3 rd Additional Sessions Judge, Cuttack in 2(a) CC Case No.15 of 2014 has been assailed in the present appeal by the appellant, who is the sole accused in the case. 2. The prosecution case in brief is that, on 03.11.2014 at about 7.45 A.M. while P.W.3, the Inspector of Excise, Cuttack was performing patrolling duty along with her staff saw the accused sitting over two loaded jerry bastas near Trinath Temple in front of Gate No.2 of Cuttack Railway Station. When the appellant was trying to flee away, P.W.3 along with P.W.1- the A.S.I. of Excise reached at him and detained him on suspicion that he has kept contraband articles inside those jerry bastas. Accordingly completing all formalities of search, she seized 30 kgs of contraband ganja, i.e., 15 kgs each from two jerry bastas which were in possession of the appellant. He was then arrested and forwarded to the court by P.W.3 and she herself took up the investigation. On completion of investigation, P.W.3 submitted the final PR on 01.05.2015 and trial commenced thereafter. 3. The appellant on the other hand took the plea of complete denial and false accusation. 4. In order to substantiate the charge, the prosecution examined four witnesses and fourteen exhibits have been marked. On the other hand, the defence has examined one witness and marked nine documents. 5. Learned trial court upon analyzing the evidence of both the sides held the appellant guilty of the offence accused of and accordingly convicted him as aforesaid. 6. Aggrieved upon the same, the appellant in the present appeal contended that the learned trial court has committed serious illegality in convicting him for the offence in absence of proof beyond reasonable doubts. It is first contended by the appellant that, the detecting officer-cum-informant has been the Investigating Officer in the present case for which the appellant has been seriously prejudiced. It is further contended that the independent witnesses have not supported the prosecution case and there are many lacunas in the investigation which are causing many reasonable doubts in favour of the defence. It is further contended that the independent witnesses have not supported the prosecution case and there are many lacunas in the investigation which are causing many reasonable doubts in favour of the defence. It is thus prayed to set aside the conviction and to acquit him. 7. A close scrutiny of the materials brought before the learned trial court reveals that out of four witnesses adduced on behalf of the prosecution, two are independent witnesses and rest two, viz. P.Ws.1 and 3 are the official witnesses. As stated earlier, P.W.3 is the informant and the Investigating Officer. She is the Inspector of Excise. As per her evidence, while conducting patrolling duty at Cuttack Railway Station on that relevant date and time, she noticed the appellant along with two jerry bastas by chance. Therefore, the mandatory requirement of Sec.42 of the NDPS Act is not required to be adhered to in the present case. Looking to the evidence of P.Ws.1 and 3, it is found consistent that they had no prior knowledge of such expected detection of contraband at the spot. But at this juncture, if the defence case is looked into, it is admitted by the D.W.1, who is another A.S.I. of Excise that, at the same place, i.e., in front of Gate No.2 of Cuttack Railway Station, two other accused persons were detected as possessing the contraband ganja weighing 90 kgs. The PR in the present case under Form No.C-2 has been marked as Ext.5. The certified copy of the PR in Form No.C-2 of the other case as adduced by the defence has been marked as Ext.F. A comparison of the Ext.5 with Ext.F reveals the time is between 7.45 A.M. to 9.00 A.M. and 6.45 A.M. to 8.55 A.M. respectively in both the cases. The most important point is that, the independent witnesses (P.Ws.2 and 4) in Ext.5 are also the same witnesses in Ext.F. When the major time period in both the cases are seen common, the presence of two independent witnesses, viz., P.Ws.2 and 4 in the present case for search and seizure as per the narration of the prosecution becomes doubtful because neither P.W.1 nor P.W.3 makes any whisper of presence of P.Ws.2 and 4 in the search and seizure of another bulk of ganja detected by another Inspector of the same Department of P.W.3. It is thus makes doubtful of presence of P.Ws.2 and 4 at the spot during the search and seizure. Moreover in their evidence, both these independent witnesses completely denied of their presence during search and seizure made by P.W.3 and as per them, they only signed in the documents at a different place and time on the instruction of excise officials. 8. In view of the evidence of D.W.1 and the exhibits marked on behalf of the defence, the statements made by P.Ws.2 and 4 that they were not present at the time of search and seizure cannot be falsified. Therefore, here arises a reasonable doubt on the prosecution case regarding search and seizure of the contraband from possession of the appellant. 9. What next to be seen is, regarding mandatory compliance of Sec.50 of the NDPS Act in the present case. The option given to the accused as per P.W.3 is Ext.1 and reply given by the accused is Ext.2. Perusal of Exts.1 and 2 reveals that both are in printed format and it is the case of the prosecution that the accused refused to exercise his option for his search before any Executive Magistrate or the Gazetted Officer and agreed to be searched by her. The accused has put his LTI on Exts.1 and 2 and other documents. The inventory list under Ext.3 does not mention carrying of such printed forms with P.W.3 and it also does not specifically mention carrying of any printing machine with P.W.3. Thus the obvious inference is that P.W.3 obtained LTI of the accused over Exts.1 and 2 subsequently. Therefore it is concluded that the requirement of Sec.50 of the NDPS Act has not been duly complied with. Since the compliance of requirements under Sec.50 of the NDPS Act are mandatory in nature, the prosecution to fill up the lacuna have probably managed to obtain the LTI of the appellant on Exts.1 and 2. Further, it is admitted case of the prosecution that personal search of the appellant was taken by P.W.3 and therefore, the compliance of Sec.50 of the NDPS Act in its true spirit becomes mandatory on the prosecution. Further, it is admitted case of the prosecution that personal search of the appellant was taken by P.W.3 and therefore, the compliance of Sec.50 of the NDPS Act in its true spirit becomes mandatory on the prosecution. It is held by the Honble Supreme Court in the case of Arif Khan @ Agha khan vs. State of Uttarakhand, reported in (2018) 18 SCC 380 , that, it is mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of any Magistrate or a Gazetted Officer. What has been done in the present case, by mere taking the LTI impression of the accused on a pre-printed formant will not satisfy the due compliance of Sec.50 of the NDPS Act. For the said purpose, it is the duty of the detection officer to take search of the accused in an NDPS case before the Executive Magistrate or the Gazetted Officer as mandated in the NDPS Act. Accordingly, it is concluded that requirements of Sec.50 of the NDPS Act has not been complied with in the present case and the learned trial court has failed to appreciate this aspect. 10. It is further seen from the evidence of P.Ws.1 and 3 that the weighment of contraband ganja was taken on the spot itself, but record does not contain any weighment chart. The prosecution case is that, total ganja weighing 30 kgs. was seized from two jerry bastas and after the weight was taken, the same was sealed in the same bastas with affixture of the impression of brass seal of P.W.3. The brass seal was given in zima to the independent witness P.W.4. But this P.W.4 does not support the prosecution case nor was any brass seal produced before the court. When the place of seizure is a public place and the weighment chart is not produced nor the brass seal, nor the independent witness supports the prosecution version, the doubt on the prosecution case regarding seizure of the contraband of a particular quantity becomes grave. It is the duty of the prosecution to prove the possession of contraband with the accused and seizure thereof by adducing clear and cogent evidence. But in the present case, it is not so done. It is the duty of the prosecution to prove the possession of contraband with the accused and seizure thereof by adducing clear and cogent evidence. But in the present case, it is not so done. To add further peril to prosecution case, it is seen that the duplicate sample packet of the contraband has also not been produced on record without giving any explanation from the side of the prosecution. 11. Another important point against the prosecution as noticed on record is that the informant has been the Investigating Officer. P.W.3 is the same Officer, who detected the accused with the contraband, conducted the search and seized the same, lodged the first information and also conducted the entire investigation. It is not the case of the prosecution that there was no other Officer available to conduct the investigation nor it is the case of the prosecution that some other reason compelled P.W.3 to take up the investigation. It is simply without any explanation. 12. In the case of Mohan Lal vs. State of Punjab, reported in AIR 2018 SC 3853 , the Honble apex Court have decided the question about the effect of the informant being the Investigating Officer. It has been held as follows; 'xxx xxx xxx 5. We have considered the submissions on behalf of the parties. The primary question for our consideration in the present appeal is, whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof. xxx xxx xxx 25. xxx xxx It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof. 26. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof. 26. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The appellant is directed to be set at liberty forthwith unless wanted in any other case.' Honble Supreme Court have further held in the case of Varinder Kumar vs. State of Himachal Pradesh, reported in 2019 SCC OnLine SC 170 that,- 'xxx xxx xxx 18. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it uni- directional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case. xxx xxx xxx' 13. In the case at hand as discussed above, there is no compliance of mandatory provisions of Sec.50 of the NDPS Act and there are also doubts regarding weighment, non-production of brass seal and non-production of the duplicate sample (contraband) packet. Under such circumstances, it can be safely said that the appellant has definitely been prejudiced by the conduct of P.W.3, when she being the informant became the Investigating Officer. 14. Considering such prejudices caused to the accused and in view of the lacunas as well as non-compliance of mandatory provisions prescribed under the NDPS Act, it cannot be concluded that the prosecution has established its case beyond all reasonable doubts and as such, the conviction imposed by the learned trial court is not found justified. Hence the same is liable to be set aside. 15. In the result, the appeal is allowed, the impugned judgment of conviction is set aside and it is directed to release the appellant forthwith from custody if he is not required to be detained in other case. The L.C.R. be returned back.