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2019 Supreme(Ori) 43
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Sahoo, J.
Sumit Kumar Behera And Another - Appellants
Vs.
State of Odisha - Respondent
Criminal Appeal No. 452 of 2013
Decided On : 24-04-2019
Soura Ch Mohapatra, Adv., Purna Chandra Das, Adv.
Non-compliance of mandatory provisions affects the prosecution case and vitiates the trial.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Non-compliance of Section 42(2) - Fair Investigation - Evidence of Independent Witnesses - Brass Seal - Compliance of Section 42(2) - Non-compliance of Mandatory Provision
Fact of the Case:
The appellants were found in possession of contraband ganja in an Ambassador Car and were charged under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act. The prosecution case was based on the seizure of the contraband ganja from the car and subsequent investigation by the Excise Sub-Inspector.
Finding of the Court:
The court found non-compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, unfair investigation by the Excise Sub-Inspector, discrepancies in the evidence of witnesses, and absence of proof of compliance of the provision. The court held that the prosecution failed to establish the charge beyond reasonable doubt.
Issues: Non-compliance of Section 42(2) of the N.D.P.S. Act, fairness of investigation, discrepancies in evidence, and absence of proof of compliance of the provision.
Ratio Decidendi: The court emphasized the importance of fair investigation and compliance with statutory provisions, and held that non-compliance of mandatory provisions affects the prosecution case and vitiates the trial.
Final Decision: The Criminal Appeal was allowed, and the appellants were acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellants in jail custody were to be set at liberty forthwith if their detention was not required in any other case.
JUDGMENT :
S.K. Sahoo, J.
The appellants Sumit Kumar Behera and Babu Gouda faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a) C.C. No. 02 of 2011 (N) 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 18.02.2011 at about 07.00 a.m. they were found in possession of three quintals of contraband ganja in front of Iswari Dhaba at Podamari under Pattapur police station in the district of Ganjam carrying it in an Ambassador Car bearing registration number OR-02-AE-0200 in contravention of the provision under section 8(c) of the said Act.
The learned trial Court vide impugned judgment and order dated 23.08.2013 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default, to undergo further rigorous imprisonment for period of two years each.
2. The prosecution case, in short, is that on 17.02.2011 at about 8.00 p.m. Sarat Chandra Bhanja (P.W.4), S.I. of Excise, E.I. and E.B., Unit-II (S.D.), Berhampur received reliable information about illegal transportation of ganja in between Digapahandi and Luhagudi State Highway. He entered the fact in the information register and gave a letter to the Inspector in Charge, E.I. and E.B., Berhampur who directed him to detect the case. On 18.02.2011 at about 4.30 a.m. P.W.4 along with his staff proceeded to Podamari and in front of Iswari Dhaba, they found one Ambassador Car bearing registration number OR-02- AE-0200 was coming towards Digapahandi. When they detained the car, the appellant Babu Gouda was found in the driver's seat and appellant Sumit Kumar Behera was also found in the car. Jerry bags were found loaded on the rear seat of the car. When the appellants were asked about the contents of the jerry bags, they remained silent. P.W.4 asked the appellants to give option if they would like to be searched in presence of Executive Magistrate or Gazetted Officer but they opted to be searched by P.W.4. P.W.4 called independent witnesses to the spot and in their presence, the car was searched and ten numbers of jerry bags emanating smell of ganja were recovered from inside the car. P.W.4 conducted preliminary tests such as burning of a little piece of the contents of the bags and taking smell of the same. By his service experience, P.W.4 was confirmed that the jerry bags were containing ganja. The weight of the bags was taken which was found to be three quintals. Since the appellants did not produce any authority to transport ganja, the car along with its starting key, the jerry bags containing ganja were seized under seizure list Ext.1. P.W.4 sealed the seized bags by using papers and affixing impression of his brass seal. He gave his brass seal to P.W.2 Kalu Charan Jena on zima, recorded the statements of the appellants and witnesses. He gave a copy of the seizure list to each of the appellants by obtaining zimanama, prepared the spot map. The appellants were arrested and produced before the learned Special Court and as per the direction of the learned Special Court, the seized ganja bags were produced before the learned S.D.J.M., Berhampur and in his presence, the samples were collected. P.W.4 sent the sample packets for chemical analysis through Constable Bhagaban Mahanandia. During course of investigation, P.W.4 issued a letter to the R.T.O., Bhubaneswar for supply of details of the seized car. The R.T.O. issued a letter enclosing xerox copy of the R.C. book that the owner of the vehicle was one Usarani Das. The owner was found dead and her husband submitted an affidavit with a copy of the death certificate of his wife. He received the chemical examination report and on completion of investigation, P.W.4 submitted the prosecution report against the appellants.
3. The learned trial Court framed char
