Back
ORISSA HIGH COURT
S.K. Mishra, J.
Santosh Patra and Ors. —Appellants
versus
State of Orissa —Respondents
Criminal Appeal No. 79 of 2008
Decided on 10.11.2014
For the Appellant Nos. 1 and 5:M/s. Biswajit Nayak, Advocate.
For the Appellant No. 2:M/s. Manoj Kumar Rajguru and B.K. Mishra, Advocates.
For the Appellant Nos. 3 and 4:M/s. S. Behera, S.P. Mishra and S.L. Chaudhary, Advocates.
For the Respondent: Additional Standing Counsel.
IMPORTANT POINTS
1. Noncompliance of the mandate of Section of 55 of the Act shall render the prosecution case vulnerable.
2. Once possession is established, the person who claims that it is not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law.
Headnote:(i)Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20(b)(ii)(c ) —Recovery of 44 kilograms of ganja found in five bags which were in dicky of car—Five accused appellants were occupants of car—Appeal against conviction—Question of conscious possession of contraband by accused persons—Once possession was established the person who claimed that it was not a conscious possession has to established it—No reason to interfere with findings recorded by trial court that all five accused were to be taken to be in possession of contraband. (Paras 14 to 18)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20(b)(ii) (c) —Recovery of 44 kilograms of ganja from a car and all five accused persons were present in car—Recovery was effected by three official of Excise Department after joining two independent witnesses—Two independent witnesses turned hostile and did not support the case at all—Evidence of official witnesses found consistent and reliable was not liable to be discarded.
Held: Thus, on a careful examination of the evidence of PWs 1 to 3, this Court found that there is ample corroboration of the factum of seizure by each other and the Court, that has recorded their evidence, has come to the conclusion that these witnesses are trustworthy and reliable witnesses. The appellate court should not lightly brush aside such conclusion as the trial judge has seen the demeanor of the witnesses as the evidence has been recorded in his presence. Thus, hostility of PWs 4 and 5 will not help the appellants in throwing away the case of the prosecution. (Para 12)
(iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20(b)(ii)(c ), 52 and 55—Recovery of 44 kilograms of ganja from a car and all five accused were occupant of car—Appeal against conviction— It was for prosecution to established that after seizure of contraband till same was produced before Court and sent for chemical examination, same should be kept in proper custody—Contraband seized was to be produced before officers in-charge of police station and affix his seal to such articles—Compliance of provisions appeared doubtful—Conviction was liable to be set aside.
Held: Sub-section (3) of Section 52 of the Act provides that every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to: (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under Section 53. In this case, it is the case of the prosecution that after seizure of the articles and arrest of the accused persons, the Officer investigating the case forwarded the same to the Officer-in-charge of the nearest Police Station, i.e. Bargarh Police Station. However, no officer of Bargarh Police Station has been examined by the prosecution in this case to substantiate the case put forth by the prosecution.
Section 55 of the Act provides that Police shall take in-charge of the articles seized till delivery. An officer-in-charge of a police’ station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This section provides that if any contraband is seized then the same shall be delivered to the Officer-in-charge of a nearest Police Station for safe custody pending orders of the Magistrate. The Officer-in-charge shall allow any Officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. So two conditions were required to be fulfilled. An Officer may accompany the seized articles shall be allowed by the Officer-in-charge of the Police Station to affix his seal to such articles and take samples thereof. It is further required that all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This provision has been violated in this case as it is not proved in the case that the sample packets, which are drawn by PW1, were also sealed with the seal of the OIC of the Police Station in whose interim custody the articles were kept after detection of the seizure. It is further apparent from the record that the brass seal, which was used to seal the articles and sample packets, has not been produced in the Court. The prosecution witness P.WA, namely Tikiswar Sahu, has denied that the brass seal was kept in his zima on execution of a zimanama. So all these material aspects taken together create doubt in the mind of the court regarding the compliance of Sections 52 and 55 of the Act.
Accordingly, this Court is of the view that the appeal should succeed on the admitted non-compliance of Sections 52 and 55 of the Act and the order of conviction and sentence passed by learned Addl. Sessions Judge-cum-Special Judge, Bargarh, in C.T. Case No.166/2006 should be set aside. Hence the appeal is allowed. The judgment dated 22.12.2007-passed by the learned Addl. Sessions Judge-cum-Special Judge, Bargarh, in C.T. Case No.166/2006 convicting them for the offence under Section 20(b)(ii)(C) of the Act and sentencing each of them to undergo R.I. for ten years and to pay a fine of RS.1,00,000 each in default to undergo R.I. for a further period of one year is hereby set aside. (Paras 23 to 25)
Result: Appeal allowed.
JUDGMENT
S.K.Mishra, J.— The appellants assail the judgment dated 22.12.2007 passed by learned Additional Sessions Judge-cum-Special Judge, Bargarh, in C.T. Case No.166/2006 convicting them for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act” for brevity) and sentencing each of them to undergo R.I. for ten years and to pay a fine of Rs.1,00,000 each in default to undergo R.I. for a further period of one year.
2. The prosecution case as revealed from the record may be stated succinctly as follows:
On December 18, 2008 at 4.00 p.m. a secret message was received by Sub-Inspector of Excise, District Mobile, Bargarh Shri Jyotirmay Patel (PW1) that ganja was being transported in a silver colour Indica Car bearing Regn.No.OR-07-E-4411 which was coming towards Bhatli road, Bargarh Town. The information was reduced by PW1 into writing. He sent a copy thereof to his immediate superior authority, viz. to the Inspector of Excise Bargarh as per Ex.18 and thereafter proceeded towards the spot where the car was expected to come. On reaching the spot, the raiding party found a Indica car bearing the aforesaid registration number on the verge of moving on the Highway but the vehicle could not move, possibly having developed some ignition trouble. It was found that four persons were sitting in the vehicle on the verge of moving and it was being driven by the 5th man who disclosed his identity as A1, Santosh Patra. In presence of witnesses, Sub-Inspector of Excise -Shri Jyotirmaya Patel (PW1) disclosed his identity and intention of search and gave an option to the accused persons as per Ex.1 as to whether they wanted to be searched in presence of a Magistrate or in presence of a gazetted officer. The accused persons, it is alleged, opted for search in presence of a gazetted Officer. On the requisition of PW1, the Sub-Divisional Police Officer, Bargarh, Shri Prasanta Kumar Bhoi (PW3), who is a gazetted Officer arrived at the spot. On personal search of the accused persons no incriminating was found on their person. When the car was searched, a brown colour air bag, a royal colour attache box, a red brown colour air bag, a black colour air bag and one sky colour allwyn attache were found in the dickey of the Indica car. The bags were filled with ganja wrapped in polythenes. Weighing scale were brought and the potythene packets taken out from each container we’re weighed separately. It was found each bag contained 8 kgs., 9.2 kgs, 10.8 kgs, 8.4kgs, and 7.6 kgs. Ganja respectively, Thereafter, PW1 collected samples of 25 grams of ganja from each container in two separate packets. The sample packets and remaining ganja as found in each bags were sealed separately at the spot as required by law, and thereafter all necessary steps were taken under the Act and rules. PW1 prepared the seizure list, Ex.3, at the spot in presence of the witnesses and copies of the same were supplied to the accused persons and their endorsement obtained in Ex.3. At the spot, PW1 registered a case vide District Mobile Excise Case No.45/2006-2007 dated 18.12.2006 against the accused persons under Section 20 of the Act. The accused persons were interrogated. The driver of the vehicles could not produce his driving license as well as documents of the vehicle. The case was accordingly seized as per seizure list Ex.3. Immediately thereafter, the seized containers, the sample packets, seized vehicle and the accused persons were handed over to the Officer-in-charge, Bargarh Police Station, who resealed the seized articles. PW1 kept his brass seal in custody of witness, namely Tikeswar Sahu (PW4), the samples were analyzed by the Chemical Examiner, who filed a report vide Ex.13, with the finding that the samples were that of ganja, cannabis as defined under Section 2(iii)(b) of the Act. On being satisfied about commission of offence under Section 20 of the act by the five accused persons they bei
