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2021 DIGILAW 318 (ORI)

Rakesh Kumar Barik v. State Of Orissa

2021-07-20

S.PUJAHARI

body2021
JUDGMENT S Pujahari, J. - All these three criminal appeals having arisen out of the common judgment and order passed by the learned Sessions Judge-cum-Special Judge, Ganjam-Berhampur in 2(a) C.C. No.7 of 2010 are taken up together for disposal by the common judgment to follow. 2. Vide the impugned judgment and order, the respective appellants in CRLA Nos.506 of 2014 and 695 of 2014 have been convicted under Section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced to undergo R.I. for ten years and pay fine of Rs.1 lakh, in default, to further R.I. for two years each, and the seized vehicle owned by the appellant in CRLA No.416 of 2014 has been directed to be confiscated to the State. Hence, the appeals by the appellants. 3. Heard the respective learned counsel for the appellants and the learned Addl. Government Advocate appearing for the Respondent-State. 4. Prosecution case is that on 14.08.2010 at about 6.30 a.m. Sri Sarat Chandra Bhanja, the then S.I. of Excise, E.I. & E.B. (Sadar Division), Berhampur and staff while performing patrolling duty at Padarabali Chhak under Berhampur Sadar Police Station, detained one Indigo L.S. Car bearing registration No.W.B.-02-S1711 coming towards Berhampur town. Suspecting transportation of 'Ganja' by the appellants Bijay and Rakesh, who were occupants of the said car, the S.I. immediately sent a written intimation to his superior officer Sri S.P. Gantayat, the then I.I.C., Excise and thereafter on following the required legal formalities, he conducted search inside the car, and recovered five number of jerry bag from the rear seat and three more jerry bags from the dickey of the car containing contraband articles, and on conducting preliminary test he came to know the contents to be 'Ganja'. On weighment he found the contents to be one quintal and sixty kilograms in toto. Thereafter, he effected seizure of the said articles, so also the Indigo car. He arrested the appellant Bijay who was on the steering of the car and the co-occupant Rakesh, and produced them along with the seized 'Ganja' before the Special Court and under the order of the Court the sample on being collected from the bulk 'Ganja' was sent to the SDTRL, Bhubaneswar under seal for chemical examination, and as per the report of the chemical examiner, the sample was confirmed to be 'Ganja'. On completion of investigation, the S.I. of Excise submitted the prosecution report against the appellants Bijay and Rakesh. As the above named appellants pleaded not guilty to the charge framed under Section 20(b)(ii)(C) of the N.D.P.S. Act, trial was held, in course of which the prosecution produced six witnesses and oral evidence vide Exts.1 to 9. The sample packets of the seized substance were also produced during the trial as M.Os.I to VIII. The appellants, however, did not choose to adduce any evidence in defence. On evaluating the evidence on record, the learned Sessions Judge-cum-Special Judge, Ganjam-Berhampur found both the said appellants guilty under Section 20(b)(ii)(C) of the NDPS Act and sentenced them, as stated earlier. The seized 'Ganja' as well as the Indigo L.S. car has been directed to be confiscated to the State. The appellants Bijay and Rakesh are in appeal against their conviction and sentence while the appellant Samaresh Banerjee has preferred the appeal as against the order of confiscation of the aforesaid car owned by him. 5. The impugned judgment and order are assailed mainly on the ground that there being no independent corroboration to the evidence of P.W.6, i.e., the S.I. of Excise, who conducted the search and seizure, the prosecution cannot be said to have proved its case beyond reasonable doubt. It is further submitted by the learned counsel for the appellants that the mandatory provisions under Sections 42 and 57 of the NDPS Act having not been duly complied with, the conviction is bad in law. They further pointed out that the same Excise Officer (P.W.6) who detected the incident having conducted the investigation, gross prejudice has been caused to the appellants, inasmuch as the investigation cannot be treated to have been fairly conducted. 6. The learned counsel appearing for the State on the other hand submits that the points raised by the appellants before this Court have already been duly dealt with by the learned trial Court, and the impugned judgment having been passed with award of minimum sentence against the accused-appellants after due scrutiny and evaluation of the materials on record, no interference therewith in appeal is called for. According to him, the prosecution has proved its case against the accused-appellants beyond reasonable doubt. 7. Independent corroboration is not a sine-qua-non for appreciation or acting upon the evidence of the official witnesses. According to him, the prosecution has proved its case against the accused-appellants beyond reasonable doubt. 7. Independent corroboration is not a sine-qua-non for appreciation or acting upon the evidence of the official witnesses. In view of Section 134 of the Indian Evidence Act it is not the quantity, but the quality of the evidence which has to be weighed in while judging the veracity of a case upon trial. In the case at hand although the independent witnesses cited by the prosecution have turned hostile during the trial, the same ipso facto has not affected the efficacy or credibility of the evidence adduced by the prosecution through the official witnesses. The evidence of the P.W.6 has been corroborated by his official companion, namely, P.W.4 and the documents produced, and the evidence so adduced by the prosecution, as it appears, is clear, cogent and credible so as to bring home the charge to the accused-appellants. 8. According to the prosecution, the offence, i.e., transportation of 'Ganja' was detected by the P.W.6 while he was on patrolling duty at a public place. The P.W.6 has categorically deposed that while on patrolling at Padarabali Chhak on Berhampur-Digapahandi road, on suspicion he detained the vehicle in question which was coming from Digapahandi side towards Berhampur. He has further deposed that when he smelt 'Ganja' emitting from inside the vehicle, he intimated the said fact in writing vide Ext.7 to his superior officer, i.e., the Inspector, Excise and obtained his written order vide Ext.7/2 to take the follow up. 9. The material difference between the provisions of Sections 42 and 43 of the NDPS Act is that while Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 of the NDPS Act does not contain any such provisions, and as such while acting under Section 43, the empowered officer has the power of seizure and arrest in a public place. In the case of Karnail Singh vrs. State of Haryana, (2009) 8 SCC 539 , the Constitution Bench of the Apex Court while answering a reference held as follows:- "35. In the case of Karnail Singh vrs. State of Haryana, (2009) 8 SCC 539 , the Constitution Bench of the Apex Court while answering a reference held as follows:- "35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the gods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result n the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 10. Reverting to the case at hand, there was no prior information with the P.W.6 before his leaving office for the spot for the purpose of patrolling, regarding the illegal possession or transportation of the contraband substance, and as such, there was no occasion much less any necessity for him to comply with the provision under sub-section (2) of Section 42 of the NDPS Act. As stated by the P.W.6, the detection was made while the 'Ganja' was in transit in a public place. Hence, it was Section 43 of the NDPS Act which came into play. Be that as it may, it is also proved that at the spot the P.W.6 intimated the detection to his superior authority in writing and obtained the order of the latter. In the facts and circumstances, the contention of the appellants concerning Section 42 of the NDPS Act is not accepted. 11. Admittedly, the same officer, i.e., P.W.6 who detected the incident and set the law into motion also took up investigation. In the facts and circumstances, the contention of the appellants concerning Section 42 of the NDPS Act is not accepted. 11. Admittedly, the same officer, i.e., P.W.6 who detected the incident and set the law into motion also took up investigation. In the case of Mohan Lal vrs. State of Punjab,2018 SCCOnlineS.C. 974 (decided on 16th August, 2018), the Apex Court held that in cases where the complainant and the Investigating Officer were the same, trials would be vitiated as this would deny the accused his right to a fair investigation. However, in the case of Varinder Kumar vrs. State of Himachal Pradesh,2019 SCCOnlineSC 170 (decided on 11th February, 2019), the Apex Court clarified that the rule laid down in Mohan Lal's case would apply prospectively only. While ruling so, the Apex Court in the case of Varinder Kumar (supra) stated as follows:- "18. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional 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." 12. In the present case, there is nothing on record to show or suggest that the P.W.6 had any personal bias or grudge towards the appellants to bring them to book or put them behind the bar in any false prosecution. In course of the patrolling he detected the offence and took up investigation in course of his official performance with intimation to his superior officer. In the facts and circumstances, no prejudice can be said to have been occasioned to the appellants on account of the P.W.6 being the Investigating Officer. 13. The learned trial Court on appreciating the evidence in right perspective has convicted the appellants, namely, Rakesh Kumar Barik and Bijaya Kumar Barik for the offence under Section 20(b)(ii)(C) of the NDPS Act and awarded the minimum sentences. 14. 13. The learned trial Court on appreciating the evidence in right perspective has convicted the appellants, namely, Rakesh Kumar Barik and Bijaya Kumar Barik for the offence under Section 20(b)(ii)(C) of the NDPS Act and awarded the minimum sentences. 14. As to the vehicle owned by the appellant Samaresh Banerjee, the trial Court directed for confiscation of the same in view of the provision under sub-section (3) of Section 60 of the NDPS Act which reads as follows:- "60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.- (1) Xxxxx xxxxxx (2) Xxxxx xxxxxx (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance (or controlled substance), or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use." The appellant-owner had entered the witness box as prosecution witness no.3 during the trial and deposed, inter-alia, that his driver Bijaya Kumar Barik had taken the vehicle on 13.08.2010 to one unknown destination without his knowledge and that he had tried to contact him over phone and that on the following day he lodged a report at Police Station. There is, however, on evidence on record to show lodging of any report by him with police. Otherwise also, absence of knowledge or connivance of the owner of the vehicle only is not sufficient. Besides the same, the owner of the vehicle must show that the vehicle in question was used for the aforesaid illegal purpose not only without his knowledge or connivance but also without the knowledge or connivance of his agent or person in charge, if any, of the vehicle to wriggle out from an order of confiscation. But, here in this case, it is seen that the driver of the vehicle who happens to be in charge of the vehicle, has also been convicted for commission of the offence using the vehicle in question. That apart, there is nothing on record much less at his instance to show that he had taken all reasonable precautions against misuse of the vehicles by the driver or anybody else. That apart, there is nothing on record much less at his instance to show that he had taken all reasonable precautions against misuse of the vehicles by the driver or anybody else. Hence, his challenge to the order of confiscation is found to be bereft of merit. 15. In the result, all the three criminal appeals stand dismissed with confirmation of the impugned judgment and order. 16. L.C.R. along with a copy of this judgment be sent back forthwith. 17. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.