Non-compliance with mandatory provisions under the N.D.P.S. Act, doubtful safe custody, and perfunctory investigation led to the benefit of doubt being extended in favor of the appellants.

JUDGMENT :

S.K. SAHOO, J.

The appellants Sanjaya Kumar Tiwari and Sailendra Saha faced trial in the Court of the learned Addl. Sessions Judge-cum-Special Judge, Jeypore in Criminal Trial No.36 of 2010 for the offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’). The appellant no.1 Sanjaya Kumar Tiwari was further charged under sections 279/337/307 of the Indian Penal Code and sections 181/184/187/190(2)/196 of the Motor Vehicles Act, 1988 (hereafter ‘M.V. Act’). The appellant no.2 Sailendra Saha was further charged under sections 279/337/307/109 of the Indian Penal Code.

The learned trial Court vide impugned judgment and order dated 29.06.2011 found both the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced each of them to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1,00,000/- (rupees one lakh only) each, in default, to undergo further R.I. for a period of two years each. The appellant Sanjaya Kumar Tiwari was acquitted of the charges under section 307 of the Indian Penal Code and section 190(2) of the M.V. Act but he was found guilty under sections 279/337 of the Indian Penal Code and sections 181/184/187/196 of the M.V. Act and sentenced to undergo S.I. for six months on each count for the offences punishable under sections 279/337 of the Indian Penal Code and S.I. for three months on each count for the offences under sections 181/187/196 of the M.V. Act and to undergo S.I. for six months for the offence under section 184 of the M.V. Act and the substantive sentences were directed to run concurrently. The appellant Sailendra Saha was not found guilty of any other offences except under section 20(b)(ii)(C) of the N.D.P.S. Act.

2. The prosecution case, as per the first information report lodged by one Soubhagya Kumar Swain (P.W.12), officer in charge of Kotpad police station is that on 19.09.2008 at 9.50 a.m. he received information from reliable source that one sky colour Mahindra Scorpio vehicle bearing registration no. CG 04 B 2815 was proceeding in a high speed along N.H.43 from Jeypore side towards State of Chhattisgarh via Kotpad which was suspected to have contained contraband articles. P.W.12 made the station diary entry no.361 dated 19.09.2008 and intimated the information to C.I of police, Borigumma Circle who was present at Kotpad on NAC election duty and handed over an extract of S.D. Entry No.361 to him. He also intimated the fact to S.D.P.O., Jeypore and S.P., Koraput over cell phone and VHF message was sent to them vide D.R. No.1410 dated 19.09.2008 along with extract of the station diary entry. P.W.12 had reason to believe that the delay in causing to obtain search warrant may facilitate the accused persons to escape and therefore, he decided to conduct the search without warrant and recorded the ground of belief in the Station Diary. P.W.12 commanded some police officials to Chandili forest check gate and directed them to remain there in high alert to intercept the suspected Scorpio vehicle. P.W.12 left the police station to have a close watch over the suspected Scorpio vehicle. At about 2.00 p.m. while P.W.12 was performing patrolling in Kotpad town along N.H.43, he found that the Mahindra Scorpio vehicle was passing the town speedily. He immediately telephoned the A.S.I. Kamdev Nayak who was at Chandili forest check gate to intercept the vehicle and he also followed the said vehicle in the police jeep. A.S.I Kamdev Nayak called P.W.12 back and intimated that the Scorpio vehicle seeing the check gate bar down to ground, turned back and rushed towards Kolpad side and in that process, it caused injury to a Havildar. In order to obstruct the movement of the Scorpio vehicle, P.W.12 made one truck parked covering the N.H.43 near village Dongri and the jeep of the Kotpad police station was also parked on the National Highway on the earthen part of the road at a safe distance fr