ORISSA HIGH COURT
S.K. Sahoo, J.
Sibaram Swain and Anr. – Appellants
versus
State of Orissa – Respondent
Cr. LA No.580 of 2013 and Cr. LA No.44 of 2014
Decided on 15.3.2021

IMPORTANT POINTS
(1) Merely because informant is investigator, by that itself investigation would not suffer vice of unfairness or bias and on sole ground that informant is investigator, accused is not entitled to acquittal.
(2) If prosecution fails to prove fundamental facts so as to attract rigours of Section 35 of N.D.P.S. Act, actus reus cannot be said to have been established.
(3) Once prosecution establishes ownership as well as grant of permission by accused to use his house or vehicle etc. by another person for commission of any offence under N.D.P.S. Act, burden shifts to accused and he has to give rebuttal evidence to disprove such aspects.
(4) Doctrine of Res Jestae – This rule is an exception to general rule that hearsay evidence is not admissible.

Headnote:

(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b)(ii)(C) and 42 – Seizure of huge quantity of Ganja – Conviction and sentence – Seizure of contraband article was made from one auto rickshaw which is also a public carrier – Section 43 of N.D.P.S. Act would be attracted in the case and recording of reasons for his belief and for taking down of information received in writing with regard to commission of an offence before conducting search and seizure was not required – Contention regarding statutory infraction of provision under Section 42 of N.D.P.S Act is not acceptable – Merely because informant is investigator, by that itself investigation would not suffer vice of unfairness or bias and on sole ground that informant is investigator, accused is not entitled to acquittal – Conviction and sentence partly upheld. (Paras 11, 12 and 13)

(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 25 – Punishment for allowing premises, etc., to be used for commission of an offence. – Mere ownership of vehicle in which transportation of contraband articles is by itself not an offence – It is for prosecution to establish that with owner’s or driver’s knowledge, vehicle was used for commission of an offence under N.D.P.S. Act – However, once prosecution establishes ownership as well as grant of permission by accused to use his house or vehicle etc. by another person for commission of any offence under N.D.P.S. Act, burden shifts to accused and he has to give rebuttal evidence to disprove such aspects – It is not always expected of an owner of a commercial vehicle to know what luggage passenger of his vehicle was carrying with him/her particularly when owner has engaged a driver for running of vehicle – At best, owner cautions his driver not to carry any suspected person or suspected article in vehicle – Similarly, it would be too much to expect of a driver of vehicle to enquire into details regarding contents of luggage carried by passenger as he is mainly concerned with hire charges – There is possibility that without knowing contents of luggage, owner or driver of vehicle may permit passenger to carry luggage in which contraband articles are secretly kept and in such a scenario, it would not be proper and justified to hold owner or driver guilty of commission of offence under N.D.P.S. Act merely for illegal act of passenger without any material to show that it was knowingly permitted – It would depend on nature of evidence adduced in case to case basis, facts and circumstances of case, nature and quantity of contraband articles transported, immediate conduct of driver and passenger of vehicle at the time when vehicle was intercepted or asked to be stopped. (Para 10)

(C) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 35 and 54 – Presumption of culpable mental state – Presumption would operate in trial of accused only in the event circumstances contained therein are fully satisfied – An initial burden exists upon prosecution and only when it stands satisfied, legal burden would shift – If prosecution fails to prove fundamental facts so as to attract rigours of Section 35 of N.D.P.S. Act, actus reus cannot be said to have been established. (Para 10)

(D) Indian Evdience Act, 1872 – Section 6 – Doctrine of Res Jestae – Essence of doctrine of res gestae is that fact which, though not in issue, is so connected with the fact in issue as to form part of same transaction becomes relevant by itself – This rule is an exception to general rule that hearsay evidence is not admissible – Rationale in making certain statement or fact admissible under Section 6 of Evidence Act is on account of spontaneity and immediacy of such statement or fact in relation to fact in issue – But it is necessary that such fact or statement must be part of same transaction. (Para 10)

Result: Appeals Partly allowed.