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2022 DIGILAW 284 (ORI)

Rabindra Mallik v. State of Orissa

2022-07-14

S.K.SAHOO

body2022
JUDGMENT : S.K. SAHOO, J. The appellant Rabindra Mallik along with co-accused Prafulla Mallik faced trial in the Court of the learned Sessions Judge -cum-Special Judge, Ganjam, Berhampur in 2(a) C.C. No.07 of 2011N (T.R. No.12 of 2011) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 02.07.2011 at about 7.00 a.m. in front of Manikeswari Dhaba, Patiguda Chhak, they were found in possession of 279 kgs. of contraband ganja (cannabis) contained in nine white coloured plastic bags in a white coloured Indigo CS Car bearing registration No.OR-02AU-8211 in contravention of the provisions of section 8(c) of the N.D.P.S. Act. The learned trial Court vide impugned judgment and order dated 22.03.2016/26.03.2016, found both the accused persons guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.1,00,000/-(rupees one lakh), in default to pay the fine, to undergo rigorous imprisonment for two years. 2. The prosecution case, in short, is that on 01.07.2011 on receiving credible information from reliable sources as regard to illegal transportation of ganja from Taptapani side to Berhampur area, the S.I. of Excise, E.I. & E.B., Unit-II (S.D.), Berhampur Sri Sarat Chandra Bhanja (P.W.4) recorded the information and intimated to the higher authority i.e. Inspector in-charge of E.I. & E.B., Unit-II(S.D.), Berhampur and as per his instruction, he proceeded along with his staff for patrolling duty to work out the information. While P.W.4 was performing patrolling duty at Manikeswari Dhaba near Patiguda Chhaka, he noticed one white coloured Indigo CS car was coming from Taptapani side and proceeding towards Digapahandi. On suspicion, P.W.4 detained the car bearing registration No.OR-02AU-8211 and saw that the co-accused Prafulla Mallik was driving the vehicle and the appellant was sitting in the front seat of the car. P.W.4 disclosed his identity in presence of the available witnesses and asked about the jerry bags, but the appellant and the co-accused remained silent for which P.W.4 doubted that the white coloured jerry bags might be containing some narcotic substances. P.W.4 disclosed his identity in presence of the available witnesses and asked about the jerry bags, but the appellant and the co-accused remained silent for which P.W.4 doubted that the white coloured jerry bags might be containing some narcotic substances. P.W.4 offered the appellant and the co-accused an opportunity in writing whether they wanted to be searched before the Magistrate or Gazetted Officer but in response, both the appellant and the co-accused submitted in writing giving their consent to be searched by P.W.4 in presence of the available witnesses at the spot. Accordingly, after observing all formalities of search in presence of available witnesses, P.W.4 searched the appellant and the co-accused and recovered nine white coloured jerry bags each containing ganja from the exclusive and conscious possession of the appellant and the co-accused kept in the backside seat and dickey of the car. Thereafter, to conduct some preliminary tests, P.W.4 set fire in some portion of the ganja taking it from the jerry bags and rubbing it in his palm and also examined the flowering and fruiting tops of the ganja kept in the jerry bags and from his departmental experience and training, he came to the conclusion that the same were nothing but contraband ganja. On weighment of the jerry bags, the jerry bags marked as Sl. Nos.1 and 2 were found to have contained 32 kgs. of ganja, jerry bags having Sl. Nos.3 to 7 were found to have contained 31 kgs. of ganja and the jerry bag Sl. No.9 was found containing 29 kgs. of ganja i.e. in total 279 kgs. of ganja. Thereafter, P.W.4 seized the ganja kept in the jerry bags from the exclusive and conscious possession of the appellant and the co-accused and also the Indigo CS car. He sealed the ganja bags by affixing paper slip and his personal brass seal and thereafter, gave the metallic seal in zima of Excise Constable Brajabihari Nayak (P.W.2) and then prepared the seizure list at the spot and explained the contents of the same to the appellant and the co-accused and the witnesses. The appellant and the co-accused admitted their guilt but did not disclose the source of supply and then P.W.4 made over a copy of the seizure list each to the appellant and the co-accused and obtained their signatures on the reverse of the seizure list in token thereof. The appellant and the co-accused admitted their guilt but did not disclose the source of supply and then P.W.4 made over a copy of the seizure list each to the appellant and the co-accused and obtained their signatures on the reverse of the seizure list in token thereof. P.W.4 informed the relatives of the appellant and the co-accused regarding illegal possession and transportation of ganja by them and they were arrested for illegal transportation of ganja without any authority in contravention of section 8 and punishable under section 20(b)(ii)(C) of the N.D.P.S. Act. The seized articles along with the appellant and the co-accused were produced before the learned Special Judge, Ganjam, Berhampur and P.W.4 made a prayer for collection of sample and accordingly, as per direction of the learned Special Judge, learned S.D.J.M., Berhampur drew sample from each of the jerry bags in duplicate and sample packets were sent for chemical analysis and the rest of the sample packets and the bulk ganja were deposited in the Court Malkhana vide C.M.R. No.28/11 dated 02.07.2011 and on completion of investigation, P.W.4 submitted prosecution report against the appellant and the co-accused. 3. The appellant along with co-accused Prafulla Mallik were charged under section 20(b)(ii)(C) of the N.D.P.S. Act for illegal transportation of 279 kgs. of contraband ganja (cannabis) containing in nine white coloured plastic bags in a white coloured Indigo CS car bearing registration No.OR-02AU-8211, which they refuted, pleaded not guilty and claimed to be tried. 4. The defence plea of the appellant and the co-accused Prafulla Mallik was one of complete denial. According to them as explained in their statements under section 313 of Cr.P.C., both of them had been to visit Taptapani where police caught hold of both of them and lodged false case against them. 5. During the course of trial, in order to prove its case, the prosecution examined five witnesses. P.W.1 Tripati Badia is an independent witness, who stated to have participated in the search and seizure. He did not support the prosecution case and was declared hostile. P.W.2 Brajabihari Naik was the Constable of Excise attached to E.I. & E.B., Berhampur and was one of the members of the patrolling party and he stated about the seizure of car and contraband ganja from the vehicle and he also took zima of brass seal of P.W.4 as per zimanama Ext.2/1. P.W.3 Sk. P.W.2 Brajabihari Naik was the Constable of Excise attached to E.I. & E.B., Berhampur and was one of the members of the patrolling party and he stated about the seizure of car and contraband ganja from the vehicle and he also took zima of brass seal of P.W.4 as per zimanama Ext.2/1. P.W.3 Sk. Sakirulla was the Constable of Excise attached to E.I. & E.B., Berhampur, who was deputed to Bhubaneswar for service of notice upon Mamata Parida of Bhubaneswar, the owner of the vehicle. P.W.4 Sarat Chandra Bhanja was the S.I. of Excise attached to E.I. & E.B., Berhampur, who conducted the search of the INDIGO Car bearing registration No.OR-02AU-8211 and seizure of contraband ganja and submitted prosecution report. P.W.5 Shiba Prasad Gantayat, who was the Inspector in-charge of Excise attached to E.I. & E.B. (S.D.), Berhampur and the official superior of P.W.4. He proved the intimation sent to him in compliance of section 42 of the N.D.P.S. Act and also the preliminary report under section 57 of the N.D.P.S. Act. The prosecution exhibited twenty one documents. Ext.1/1 is the seizure list, Ext.2/1 is the zimanama, Ext.3/1 is the spot map, Ext.4 is the copy of notice, Ext.4/1 is the endorsement with signature of Prasanta Das, Ext.5 is the intimation, Ext.6 is the option given to the appellant, Ext.7 is the option given to the co-accused Prafulla Mallik, Ext.8 is the grounds of disclosure of arrest, Ext.9 is the grounds of disclosure of arrest, Ext.10 is the arrest memo of the appellant, Ext.11 is the arrest memo of the co-accused Prafulla Mallik, Ext.12 is the prayer of P.W.4 for drawing of sample, Ext.13 is the authorization letter, Ext.14 is the forwarding letter, Ext.15 is the copy of letter addressed to R.T.O., Bhubaneswar, Ext.16 is the letter of R.T.O. along with copy of registration certificate, Ext.17 is the notice addressed to Mamata Parida, Ext.17/1 is the postal receipt, Ext.18 is the chemical examination report, Ext.19 is the copy of Mal Challan of remnants, Ext.20 is the notice addressed to Mamata Parida and Ext.21 is the preliminary report in Form No.C-4. The prosecution also proved twenty material objects. M.O.I to M.O.IX are the jerry bags containing ganja, M.O.X to M.O.XVIII are the 2nd part of sample ganja packet, M.O.XIX is the envelope containing broken seals and M.O.XX is the envelope containing remnants. No witness was examined on behalf of the defence. The prosecution also proved twenty material objects. M.O.I to M.O.IX are the jerry bags containing ganja, M.O.X to M.O.XVIII are the 2nd part of sample ganja packet, M.O.XIX is the envelope containing broken seals and M.O.XX is the envelope containing remnants. No witness was examined on behalf of the defence. 6. The learned trial Court formulated the following points for determination: (i) Whether on 02.07.2011 at about 7.00 a.m. in front of Manikeswari Dhaba, Patiguda Chhaka, the accused persons were found in exclusive and conscious possession of 279 (two hundred and seventy nine) kilograms of contraband ganja in Indigo CS car bearing registration No.OR-02AU-8211? (ii) Whether the above articles were tested to be nothing but contraband ganja? 7. The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that the evidence of P.Ws.1, 2 and 4 are clear, cogent, credible and consistent enough to prove that on 02.07.2011 two hundred and seventy nine kilograms of ganja were seized contained in nine jerry bags, which the appellant and the co-accused were transporting in an Indigo car bearing registration No.OR-02AU-8211 coming from Taptapani side and thereafter the seized articles along with the appellant and the co-accused and the vehicle were brought to the Court and contraband ganja along with the appellant and the co-accused were produced before the Special Judge, Berhampur and on his instruction, the S.D.J.M., Berhampur drew sample, two from each ganja bag and sent nine sample packets of 50 grams each to D.E.C.T.L., Berhampur at Chhatrapur by keeping rest jerry bags, broken seals, nine duplicate sample packets duly sealed in the Court Malkhana vide C.M.R. No.28/2011 and the Chemical Examiner confirmed that the said samples contained nothing but ganja. The learned trial Court further held that the oral and documentary evidence as available on record are sufficient for the prosecution to bring home the charge against the appellant and the co-accused for commission of offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act for illegal possession of 279 kilograms of contraband ganja in the vehicle i.e. Indigo car bearing registration No.OR-02AU-8211, in their control, without any authority of law and beyond reasonable doubt. 8. The co-accused Prafulla Mallik, who was facing trial with the appellant and was also convicted by the learned trial Court filed a separate criminal appeal i.e. CRLA No.372 of 2016. 8. The co-accused Prafulla Mallik, who was facing trial with the appellant and was also convicted by the learned trial Court filed a separate criminal appeal i.e. CRLA No.372 of 2016. The said appellant was directed to be released on interim bail for three months in Misc. Case No.1029 of 2016 as per order dated 08.11.2021. Though the learned counsel for the appellant in that case was asked to file surrender certificate of the appellant but since no surrender certificate was filed, as per the order dated 14.02.2022, this Court called for a report from the learned trial Court as to whether the appellant after availing the interim bail period has surrendered at right time or not and if not, what steps have been taken for his apprehension. The learned trial Court as per letter dated 22.02.2022 reported that the said appellant Prafulla Mallik failed to appear after availing the interim bail period and therefore, non-bailable warrant of arrest has been issued against him so also notice to the bailors on 19.02.2022. This Court as per order dated 28.03.2022 directed the learned trial Court to communicate as soon as the said appellant is apprehended. Till date, no apprehension report has been received from the learned trial Court. Though both the appeals i.e. JCRLA No.42 of 2016 and CRLA No.372 of 2016 have been listed together for hearing, none appears for the appellant in CRLA No.372 of 2016. The learned counsel for the appellant Rabindra Mallik submitted that the appellant has already undergone eleven years of substantive sentence and urged JCRLA is to be taken up. Since the co-accused Prafulla Mallik who preferred the separate appeal has absconded, I am of the humble view that the said criminal appeal i.e. CRLA No.372 of 2016 is to be heard separately. 9. Learned counsel for the appellant Rabindra Mallik raised sole legal point that the imposition of substantive sentence of twelve years for the conviction under section 20(b)(ii)(C) of the N.D.P.S. Act, which has been passed without taking into account the provision under section 32-B of the N.D.P.S. Act is not sustainable in the eye of law. He further urged that the minimum sentence prescribed for such offence be awarded to the appellant and since the appellant has already undergone such minimum sentence, he should be released forthwith from the judicial custody. He further urged that the minimum sentence prescribed for such offence be awarded to the appellant and since the appellant has already undergone such minimum sentence, he should be released forthwith from the judicial custody. He placed reliance in the cases of Sambhulal Tibrewal -Vs.-State of Odisha reported in 2017 (Supp.-II) Orissa Law Reviews 358 and Rajesh K.R. and Another -Vrs.-State of Odisha reported in (2021) 84 Orissa Criminal Reports 309. In the case of Sambhulal Tibrewal (supra), I had the occasion to deal with an identical point raised in connection with section 32-B of the N.D.P.S. Act, wherein it is held as follows: “11. Coming to the sentence imposed by the learned trial Court, I find that after convicting the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act, the learned trial Court has observed that the appellant had kept huge quantity of ganja even inside a secret place in Puja Ghar which he utilized for transaction and therefore, the Court was of the view that the appellant is not entitled to be leniently dealt with. It is further observed that dealing such huge quantity of ganja is an offence more heinous than the offence of homicide. With these reasons, the learned trial Court has imposed substantive sentence of R.I. for 15 years and also directed to the appellant to pay a fine of Rs.1,00,000/-, (rupees one lakh only), in default, to undergo further R.I. for six months. Section 20(b)(ii)(C) of the N.D.P.S. Act prescribes, inter alia, that whoever, in contravention of any provision of the Act or any rule or order made or condition of license granted thereunder possesses cannabis which involves commercial quantity, he shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Section 32-B of the N.D.P.S. Act deals with factors to be taken into account for imposing higher than the minimum punishment which reads as follows:- “32-B. Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:- (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; and (d) the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities; (e) the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.” On a bare reading of this section, it is apparent that ordinarily minimum term of imprisonment or fine has to be imposed where it has been so prescribed but if the case comes under any of the clauses i.e. (a), (b), (c), (d), (e) or (f) of section 32-B or any other factors as it may deem fit then the Court may award more punishment than the minimum. On going through the reasons assigned by the learned trial Court in the impugned judgment, it is clear that none of reasons falls within the category of the clauses (a), (b), (c), (d), (e) or (f). The reasons assigned were not sufficient enough to award more punishment than the minimum. On going through the reasons assigned by the learned trial Court in the impugned judgment, it is clear that none of reasons falls within the category of the clauses (a), (b), (c), (d), (e) or (f). The reasons assigned were not sufficient enough to award more punishment than the minimum. It is clear that while imposing a substantive sentence of R.I. for fifteen years, the learned trial Court has not kept in view the provision under section 32-B of the N.D.P.S. Act which was inserted in the N.D.P.S. Act w.e.f. 02.10.2001. The occurrence in this case took place on 11.06.2002 and therefore, at the time of imposing sentence, it was the duty of the learned trial Court to take into account the provision under section 32-B of the N.D.P.S. Act. It is the well settled principle of law that substantive provision unless specifically provided for otherwise intended by the Parliament should be held to have a prospective operation. One of the facets of rule of law is also that all statutes should be presumed to have a prospective operation only.” Learned counsel for the appellant submitted that the conviction of the appellant by the learned trial Court is based on sound reasons and he does not want to challenge the order of conviction but contended by placing reliance under section 32-B of the N.D.P.S. Act that the imposition of substantive sentence of twelve years is contrary to the settled position of law. The learned trial Court while imposing sentence of rigorous imprisonment for twelve years has observed that having regard to the fact and circumstances of the case, more particularly that the convicts are young men, having small children in their family and that they were found transporting such huge quantity of ganja and when there is no record of their involvement in similar nature of the offence thought it proper to impose such sentence. Mr. Arupananda Das, learned Additional Government Advocate appearing for the State does not dispute that in view of the ratio laid down by this Court in the aforesaid two decisions and the provision under section 32-B of the N.D.P.S. Act, the imposition of substantive sentence of twelve years cannot be sustained in the eye of law. Mr. Arupananda Das, learned Additional Government Advocate appearing for the State does not dispute that in view of the ratio laid down by this Court in the aforesaid two decisions and the provision under section 32-B of the N.D.P.S. Act, the imposition of substantive sentence of twelve years cannot be sustained in the eye of law. In view of the provisions as enumerated under the clauses (a), (b), (c), (d), (e) and (f) of section 32-B of the N.D.P.S. Act and looking at the reasons given by the learned trial Court in imposing sentence of rigorous imprisonment for twelve years, I am of the humble view that the learned Court has not at all kept in view such provision and simply awarded the sentence, which is higher than the minimum punishment prescribed for the offence and therefore, it is not sustainable in the eye of law. Accordingly, the substantive sentence of the appellant is reduced from twelve years to ten years. The fine amount imposed by the learned trial Court stands confirmed but the default sentence awarded by the learned trial Court is reduced from two years to one year. It appears that the appellant was taken into judicial custody in connection with this case on 02.07.2011 and neither he was on bail in the trial Court nor he was granted bail by this Court during pendency of the Jail Criminal Appeal. Therefore, he has already undergone eleven years of substantive sentence, which satisfies substantive sentence of ten years and also default sentence of one year. The appellant be set at liberty forthwith, if his detention is not required in any other case. Accordingly, the Jail Criminal Appeal is dismissed subject to modification of the sentence as noted above. The trial Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.