ORISSA HIGH COURT
S.K. Sahoo, J.
Bayamani Mandinga —Appellant
versus
State of Orissa —Respondent
Crl.A.No.51 of 2010
Decided on 23.2.2016

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 20(b)(ii)(c) and 42 — Offence of cultivating ganja plants — Non compliance of mandatory provision u/s 42(2) of NDPS Act — Absence of any clinching evidence that the seized articles were kept in safe custody till its production in the court — Absence of any evidence that the spot house belonged to appellant accused or that he was in possession of the same — Prosecution case that PW6, who was the sub Inspector of Excise along with his staff proceeded to village to detect excise offence where PW6 got reliable oral information about illegal cultivation of hemp plants by appellant in his Bari adjoining his residential house — They all proceeded to house of appellant and found him watering hemp plants inside his fenced Bari — PW6 found 149 numbers of hemp plants — PW6 also recovered two polythene gunny bags containing ganja — Trial court convicted appellant for offence u/s 20(b)(ii)(c) of the Act — No document regarding title and possession of the house and the Bari from where the bags and ganja plants were recovered were verified by the Excise officials — No person from the neighborhood and been examined — Immediate Official superior of PW6 was not present with the raiding party — Whether conviction of appellant as recorded by the trial court was sustainable — (No)

       Held: The prosecution has not proved any documentary evidence that the spot house or the bari in question belong to the accused or that he was in possession of the same. Not a single person from the neighborhood has been examined to substantiate such aspect. When the Executive Magistrate has been examined by the prosecution as P.W.3 and his evidence is totally silent that the appellant was present either in the spot bari or in the spot house at the time of search and seizure, it cannot be said that the seizure of hemp plants or ganja was held either from the exclusive or conscious possession of the appellant.

       The evidence of the witnesses are discrepant in nature and the relevant documents like Malkhana register has not been proved which would have substantiated that the contraband articles after seizure were kept in safe custody till it was produced in Court. Law is well settled that the prosecution has to prove that the articles which were produced before the Court were the very articles which were seized and the entire path has to be proved by adducing reliable, cogent, unimpeachable and trustworthy evidence. Since the punishment is stringent in nature, any deviation from it would create suspicion which would result in giving benefit of doubt to the accused.

       In this case, there is no evidence that the specimen seal impression which was given on the seized articles was produced before the Court at the time of production of the seized articles for verification. It is also the requirement of law that when the contraband articles are seized and sealed with the seal impression then the brass seal has to be left in the zima of a reliable person under zimanama and instruction is to be given to such person to produce it before the Court for verification at the time of production of articles. It the brass seal remains with the person who has effected search and seizure, then chance of tampering cannot be ruled out. Though P.W.6 has stated that after affixing the impression of his personal brass seal over the seized articles, he left the brass seal in the zima of the Executive Magistrate Sri Bibekananda Sahu (P.W.3) but the Executive Magistrate (P.W.3) has not been supported the same. The other official witnesses like P.W.4 and P.W.5 have also not stated about the same. The order sheet of the learned Sessions Judge-cum-Special Judge, Koraput dated 1.10.2007 indicates that when the accused was produced, no such brass seal was produced before the Court. Even during trial also, the brass seal which is alleged to have been given in the zima of P.W.3 has also not been produced.

       In view of the glaring inconsistencies in the evidence of prosecution witnesses, non-compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, absence of any clinching materials that the seized articles were kept in safe custody till its production in the Court and absence of either any documentary or clinching oral evidence that the spot house belongs to the appellant or that he was in possession of the same, I am of the view that it would be very risky to uphold the impugned judgment and order of conviction. Therefore, the conviction of the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) and in default of payment of fine, to undergo further R.I. for one year as was imposed by the learned Trial Court, is hereby set aside.

       In the result, the appeal is allowed.

       The appellant who is in jail custody shall be released forthwith, if his detention is not otherwise required in any other case.

       Lower Court records with a copy of this judgment be sent down to the learned Trial Court forthwith for information. (Paras 9 & 10)

       Result: Appeal allowed.