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2021 DIGILAW 363 (ORI)

Jagabandhu Sahoo @ Bulu v. State Of Odisha

2021-08-19

S.K.PANIGRAHI

body2021
JUDGMENT S.K. Panigrahi, J. - The present appeal has been filed challenging the judgment and order dated 18.06.2014 passed by the learned Sessions Judgecum Special Judge, Nayagarh in T.R. Case No.2 of 2011 convicting the appellant under Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- in default, to undergo rigorous imprisonment for a further period of six months. 2. Shorn of unnecessary details, the facts of the instant case are that on 14.09.2010, the IIC of Sadar P.S. Nayagrah Sri Jagal Kumar Mallik was performing patrolling duty on the Mahipur and Malisahi Road. At around 6.15 P.M., a Bolero vehicle bearing registration No.OR-02AP-2595 sped past the patrolling vehicle towards Malisahi thus arousing the IIC's suspicion. The IIC proceeded to chase the vehicle and apprehended it between village Chahili and Raipur. 3. Upon stopping the vehicle, the IIC confronted and questioned the two occupants as to why there was a strong pungent smell emanating from the vehicle. The occupants then allegedly, admitted to carrying and bringing 'ganja' in the vehicle from the Jeypore Chitrakonda area. As the area where the vehicle was apprehended was a forest area, the vehicle and its occupants were moved to the nearby Malisahi O.P. The accused gave their identities as Bulu @ Jagabandhu Sahoo, i.e., present appellant and Bikali Singh and they chose for the vehicle to be searched in the presence of a Magistrate and a Senior Police officer. The IIC accordingly made a requisition to the S.P., in pursuance of which Sri Kalpataru Behera, O.A.S. Tahasildar-cum-Executive Magistrate, Nayagarh accompanied by S.D.P.O., Nayagarh arrived at the spot and the vehicle was searched in their presence at Malisahi O.P. A huge quantity of 'ganja' in 14 gunny sacks was recovered, which weighed 156 kgs and 150 grams. The weighing machine was seized and sealed samples of the 'ganja' were collected by the IIC using his brass seal. The mobile phones of both the accused were also seized for further investigation. The IIC arrested the accused persons and drew up a plain paper F.I.R. himself on his own information. 4. The IIC himself took up investigation of the case and during the course of investigation recorded statements of the witnesses, seized the vehicle and its documents. The mobile phones of both the accused were also seized for further investigation. The IIC arrested the accused persons and drew up a plain paper F.I.R. himself on his own information. 4. The IIC himself took up investigation of the case and during the course of investigation recorded statements of the witnesses, seized the vehicle and its documents. The matter was put before the learned Sessions Judge-cum-Special Judge, Nayagarh as T.R. Case No.2 of 2011, wherein after an elaborate examination of all the evidence, submissions and counter submissions, the learned Sessions Judge-cum-Special Judge, Nayagarh vide his order dated 18.06.2014 was pleased to convict the appellant under Section 20(b)(ii)(C) of the NDPS Act and sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- in default of which the present appellant would have to undergo six additional months of rigorous imprisonment. 5. The learned counsel for the appellant submits that the learned trial court has arrived at its conclusion of conviction erroneously by ignoring the material discrepancies in the prosecution's witness testimonies. The counsel for the appellant contends that the depositions and other materials available on record were not verified properly and thus incorrectly relied upon. It is also strongly contended by the counsel for the appellant that the learned trial court did not take into consideration the mandatory provisions of detection, search and seizure in the instant case highlighting certain aspects of the search and seizure that occurred in the present case. 6. Per contra, the learned counsel for the State has vehemently denied any material irregularities in the entire search and seizure that occurred in the present case. The learned counsel for the State also contended that the learned trial court's order is very well reasoned and no error is apparent on the face of the same. 7. Heard the learned Counsel for the rival parties and perused the records of the case. At the outset, it appears that the learned trial court has elaborately examined the thirteen prosecution witnesses produced before it. Therefore, this Court will constrain the discussion to the grounds raised by the present appellant only. 7. Heard the learned Counsel for the rival parties and perused the records of the case. At the outset, it appears that the learned trial court has elaborately examined the thirteen prosecution witnesses produced before it. Therefore, this Court will constrain the discussion to the grounds raised by the present appellant only. The grounds urged by the appellant can broadly be divided into (i) The only three non-official witnesses have turned hostile and merely relying on the official witnesses is not proper (ii) Alleged material contradictions in the statement of witnesses and (iii) The procedure followed in the search, seizure and possession of the apprehended vehicle along with the contraband and the appellant was not proper and in ignorance of the mandatory provisions thereby vitiating the trial. 8. Firstly, the question that arises for examination of this Court is whether reliance may be placed on the statements of official witnesses. It is often necessary that the testimony of an official witness should be corroborated by an independent witness but an independent witness turning hostile cannot lead to the assumption that the prosecution story is entirely false. However, as held by the Hon'ble Supreme Court in Krishan Chand v. State of Himachal Pradesh, (2018) 1 SCC 222 , in cases where there is an absence of independent witnesses, the evidence of the police witnesses/ official witnesses must be scrutinised with greater care especially when the evidence presented by them contradicts the other or highlights some incongruity. 9. Now this Court must contemplate whether there were any material contradictions in the statements of the witnesses as alleged by the appellant. The general position of law concerning proof as has been laid down by the Hon'ble Supreme Court time and again is that the harsher is the punishment, the more is the strictness of proof required from the prosecution. In the present case, the following inconsistencies attract our attention: P.W.13, the I.I.C has produced maximum information pertaining to the facts and circumstances of the case including the presentation of all the details of search and seizure of the apprehended vehicle and the contraband. In the present case, the following inconsistencies attract our attention: P.W.13, the I.I.C has produced maximum information pertaining to the facts and circumstances of the case including the presentation of all the details of search and seizure of the apprehended vehicle and the contraband. All other witnesses including P.W.5, P.W.6, P.W.7 and P.W.8 have more or less lent support to the statement of P.W.13 when posed with similar questions pertaining to the amount of 'ganja' recovered, number of bags, weight of the 'ganja', the type of the vehicle, the movement of the vehicle from the forested area rife with unsafe activities to a safer location at the Malisahi O.P., the presence of everybody on the spot. However, there is an inconsistency in the statement of P.W.4, the Tahasildar, Nayagarh who was deputed by the S.D.M. to remain present at the spot during search and seizure who had, however, said during his examination in chief that 10 packets of 'ganja' were recovered from the apprehended vehicle, but had then proceeded to correct himself at the stage of cross-examination. The statement of P.W.4, who has also stated that when he arrived at the Malisahi O.P., the apprehended vehicle was closed and nobody was present in the vehicle. He further stated that the I.I.C. then proceeded to open the vehicle for the search and seizure of the contraband but the apprehended persons including the appellant were already in police hazat at that time. It was contended by the learned counsel for the appellant that if the apprehended vehicle was shifted to Malisahi O.P. from the spot of detection and the apprehended persons had been shifted to police hazat then the importance of the vehicle being searched in the presence of the Magistrate had completely lost its significance. P.W. 12 Chittaranjan Patra, the Havildar who was at that time attached to P.V.F., Nayagarh and had accompanied P.W.13 during patrolling has also testified about how they gave chase to the vehicle of the accused persons and intercepted it on the way to subsequently bring it to Malisahi O.P. where in the presence of the Tahasildar, Nayagarh, 14 packets of 'ganja' were recovered from the vehicle and weighment was made. However, this witness failed to disclose the name of the accused persons and was then declared as hostile. However, this witness failed to disclose the name of the accused persons and was then declared as hostile. P.W. 11 Narasingh Bahinipati, an A.S.I. of police attached to the Nayagarh Sadar P.S. on the alleged date of occurrence during cross- examination has admitted that the seized articles had been kept inside the Malkhana and he was the one who had put his seal on the seized articles received at the P.S. However, the I.I.C./P.W.13 had claimed in his testimony that he was the one who had sealed the lock of the Malkhana with his brass seal. P.W. 13 also stated that an original copy of the Malkhana Register was available in the office of S.P., Nayagarh but no page certificate has been appended to attest to that effect. Further, P.W. 13 also failed to give any reason as to why a copy of the S.D. Entry No.270, dated 14.09.2010 of Nayagarh P.S. is not available in the case record. There is also some material discrepancy in the method and mode of guarding the seized articles. To understand the importance of the method of seizure, sealing and guarding the seized articles, reliance can be placed, in this regard, on the judgments of the Hon'ble High Court of Delhi in Safiullah v. State, 1993 25 DRJ 248 and Prem Singh v. State, 1996 Cri LJ 3604 and of the Hon'ble High Court of Punjab and Haryana in Bhola Singh v. State of Punjab, (2005) 2 RCR (Cri) and Gurjant Singh v. State of Punjab, (2007) 4 RCR (Crl) 226. It is noted herein that the evidence of all material facts pertaining to search and seizure, production of the contraband articles in the Court, the Chemical Examination Report showcasing the contents of the bags produced in the Court to be 'ganja', it is hard to ignore the conclusion that the letter of the law prescribed has in actuality been followed in earnestness to its fullest spirit. 10. Lastly, the question put forth before this Court for contemplation is that whether the procedure followed in the search, seizure and possession of the apprehended vehicle along with the contraband and the appellant, was proper or not and the same is in violation of the mandatory provisions of law. 10. Lastly, the question put forth before this Court for contemplation is that whether the procedure followed in the search, seizure and possession of the apprehended vehicle along with the contraband and the appellant, was proper or not and the same is in violation of the mandatory provisions of law. In view of the mandate of Sections 50 and 55 of the Act, a duty is cast on the Officer-in- Charge of the Police Station to receive and keep in safe custody of the articles seized and delivered to him and it is mandatory on his part to affix a seal on the seized articles before receiving in Malkhana and unless such mandate is complied with in letter and spirit, the prosecution case cannot be said to be free from doubt. Reliance can be placed on the judgment of the Hon'ble Supreme Court in Arif Khan v. State of Uttarakhand, 2018 SCC OnLine SC 459 and State of Rajasthan v. Parmanand, (2014) 5 SCC 345 . In this regard, this Court observes that there are some material discrepancies in the statement of the witnesses including the inability of the I.I.C. in following the mandatory requirements prescribed in law, which do not render the prosecution case free from doubt. The prosecution has not been able to explain the reasons behind the material contradictions despite knowing that the degree of proof required to be presented before the Court is higher when the punishment is stricter. 11. In the light of above referred deficiencies, inconsistencies and discrepancies, the statements of the official witnesses without corroboration from independent sources cannot be believed to base conviction for stringent provisions of the Act. The law on this aspect is that 'stringent the punishment, stricter is the proof'. In such cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication. The prosecution has failed to establish the commission of offence by the appellant beyond reasonable doubt. 12. In the result, this Court finds that the appellant is not guilty of the offence under Section 20(b)(ii)(C) of the NDPS Act and the judgment of the learned trial court cannot be sustained. 13. Accordingly, the Criminal Appeal is allowed. The judgment of conviction and order of sentence dated 18.06.2014 passed by the learned Sessions JudgecumSpecial Judge, Nayagarh in T.R. Case No.2 of 2011 is hereby set aside. 13. Accordingly, the Criminal Appeal is allowed. The judgment of conviction and order of sentence dated 18.06.2014 passed by the learned Sessions JudgecumSpecial Judge, Nayagarh in T.R. Case No.2 of 2011 is hereby set aside. The appellant be set at liberty forthwith, if his detention is not required in connection with any other case. 14. The LCR be returned forthwith to the court from which it was received.