Ghadua Muduli vs State of Orissa - 2018 Supreme(Ori) 555

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Ori) 555

IN THE HIGH COURT OF ORISSA
S. K. SAHOO, J.
CRLA No. 204 of 2011
From the judgment and order dated 15.03.2011 passed by the Addl. Sessions Judge -cum- Special Judge, Jeypore in Criminal Trial No. 38 of 2010.
Decided on 25th May, 2018.
Ghadua Muduli & Anr. … Appellants
Versus
State of Orissa … Respondent

Advocates Appeared:
For Appellants : Mr. Smruti Ranjan Mohapatra
For State : Mr. Prem Kumar Patnaik
Addl. Govt. Advocate

Headnote:1. NARCOTIC DRUGS AND PSYCHOTIC SUBSTANCES ACT, 1985 - Sec. 20 (b) (ii) (C) - Conviction under - Appeal - Discussing the facts, contention and evidences held, when there is non-compliance of the mandatory provision of Sec. 42 of the Act and non-production of the station diary entry, malkhana register, dispatch register during trial, when the brass seal was not produced in Court at the time of production of the seized articles, respectable and independent persons of the locality where search was made have not been examined, when the compliance of Sec. 57 of the Act is also a doubtful feature and moreover P.W. 4 being the informant of the case has investigated the case and taken the assistance of the stock witness like P.W. 2, it cannot be said that the prosecution has successfully established the charge u/s. 20 (b) (ii) (C) of the Act against the appellants beyond all reasonable doubt - Impugned judgment and order of conviction of the appellants under the section and the sentence .passed thereunder is not sustainable in the eye of law - Appellants acquitted of the charge.
        2. NARCOTIC DRUGS AND PSYCHOTIC SUBSTANCES ACT, 1985 - Sec. 42 (1) - Object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances - To avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly - These provisions make it obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the benefits while carrying out arrest or search as provided under the proviso to Section 42 (1) - To that extent they are mandatory - Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. (Para - 8)
        3. NARCOTIC DRUGS AND PSYCHOTIC SUBSTANCES ACT, 1985 - Criminal Procedure Code, 1973 - Secs. 100 and 165 - Provisions of Secs. 100 and 165 of the Code of Criminal Procedure, 1973 which are not inconsistent with the provisions of the NDPS Act are applicable to effecting search and seizure under the NDPS Act.
        The timing of search and seizure, non-availability of independent and respectable witnesses of the locality and non-inclination of such persons even though available to become witnesses to the search and seizure are the factors to be taken note of while assessing the non-compliance of Secs. 100 (4) and 165 (4) of Cr.P.C. - If after making reasonable efforts the Police Officer is not able to get public witnesses to associate with the raid or arrest of the accused, the arrest and the recovery made would not be necessarily vitiated. (Paras 10 and 11)
        4. NARCOTIC DRUGS AND PSYCHOTIC SUBSTANCES ACT, 1985 - Brass seal used in sealing the contraband articles should be kept in the zima of a respectable person and it is required to be produced before the Court at the time of production of the seized articles and sample packets for verification by the Court. (Para - 12)
        5. ODISHA POLICE RULES - Rule 119 - Malkhana Register - Whenever any article is seized and kept in Police Malkhana details thereof should be entered in the Malkhana Register and while taking it out, the entry should also be made in such register - This would indicate the safe custody of the articles seized during investigation of a case before its production in Court. (Para - 12)
        6. NARCOTIC DRUGS AND PSYCHOTIC SUBSTANCES ACT, 1985 - Investigation of a case under the Act is required to be carried out by a person who is absolutely impartial, unbiased and unmotivated. (Para - 9)

JUDGMENT

S. K. SAHOO, J. - The appellants Ghadua Muduli and Tularam Bhoi @ Tulu faced trial in the Court of learned Addl. Sessions Judge - cum- Special Judge, Jeypore in Criminal Trial No. 38 of 2010 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 04.02.2009 at about 5.00 a.m. on N.H. 43 near village Tangini, they were found transporting commercial quantity of 270 kilograms of contraband ganja in a Bolero vehicle bearing registration No.OR-02-AS-0344 without any license in contravention of provision of the N.D.P.S. Act.

The learned trial Court vide impugned judgment and order dated 15.03.2011 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to suffer further rigorous imprisonment for two years.

2. The prosecution case, as per the first information report (Ext.10) lodged by Hemanta Kumar Panda (P.W.4), Inspector in charge of Pottangi police station on 04.02.2009 is that on that day in the night at about 2.30 a.m., he received reliable information that contraband ganja was being transported in a Bolero vehicle bearing registration no.OR-02-AS-0344 from Koraput side towards Salur. He made P.S. station diary entry no.68 dated 04.02.2009 and since he had reason to believe that delay would be caused in obtaining the search warrant which would facilitate the accused persons to escape with contraband ganja, he thought it prudent to conduct raid without obtaining search warrant. P.W.4 accordingly recorded the grounds of belief in the station diary and sent a report to the Superintendent of Police, Koraput who was his immediate superior officer after making P.S. D.R. No. 173 dated 04.02.2009. Constable C/295 R.N. Biswal was asked to hand over the report to Superintendent of Police, Koraput. Then P.W.4 along with other staff proceeded towards Sunki in police jeep for detection of the case.

It is the further prosecution case as per the first information report that on 04.02.2009 at about 5.00 a.m., P.W.4 found one Bolero vehicle bearing registration no.OR-02-AS-0344 was coming from Koraput side. He stopped the vehicle with the assistance of his staff on N.H.43 near village Tangiri. Two occupants were found in the vehicle and smell of ganja was coming from the vehicle. P.W.4 called one independent witness Bhuban Prasad Roula (P.W.2) of village Pottangi and suspecting that contraband ganja was being transported, he asked the driver of the vehicle about his identity who disclosed his name as Tularam Bhoi @ Tulu (appellant no.2) and the other occupant gave his identity as Ghadua Muduli (appellant no.1). When P.W.4 expressed his intention to search the vehicle and gave his option to both the appellants as to whether they were willing to be searched before any Executive Magistrate or any Gazetted Officer, they submitted their wilingness to be searched in the presence of Executive Magistrate. P.W.4 sent requisition to the District Magistrate, Koraput for deputing one Executive Magistrate to the spot and guarded the vehicle till the arrival of the Executive Magistrate. P.W.5 Sunil Kumar Nayak who was the Executive Magistrate -cum- B.D.O., Pottangi arrived at the spot on 04.02.2009 at 3.00 p.m. and in his presence, the personal searches of P.W.4 as well as other witnesses were taken and nothing objectionable articles were found. Then the Bolero vehicle was searched and 28 nos. of gunny bags containing ganja were found inside the vehicle. P.W.4 called the weighman namely Bipra Charan Badtia (P.W.1) who came to the spot with weighing instruments to weigh the ganja. After P.W.1 took the weight, P.W.4 prepared a weighment chart and sample packets of 24 grams in duplicate from each of the ganja packets. Paper slips containing signatures of the appellants, witnesses, P.W.5, weighman were prepare

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