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2020 Supreme(Ori) 105
IN THE HIGH COURT OF ORISSA: CUTTACK
S.K. PANIGRAHI, J.
Sanjay Kumar Behera - Appellant
Versus
State Of Orissa - Respondent
Crla No. 335 of 2016
Decided on : 17-07-2020
For the Appellant :Mr. S.K. Patra & Sanjib Kumar Swain, Advocates.
For the Respondent: Mr. Sk. Zafarullah, adv
Non-compliance with statutory requirements of the NDPS Act, especially Sections 42, 50, and 55, can cast serious doubts on the veracity of the prosecution case and potentially vitiating the trial.
Headnote:
NDPS Act - Non-compliance of statutory requirements - Sections 42, 50, and 55 - The court found material irregularities in the search and seizure operation, inconsistencies in the prosecution's case, and non-compliance with statutory safeguards. The appeal was allowed, and the conviction and sentence of the appellant were set aside.
Fact of the Case:
The appellant was charged under Section 20(b)(ii)(C) of the NDPS Act based on the prosecution's story of the appellant being detained with suspected contraband ganja. The prosecution relied on the evidence of 12 witnesses, including independent witnesses and official witnesses.
Finding of the Court:
The court found material irregularities in the search and seizure operation, inconsistencies in the prosecution's case, and non-compliance with statutory safeguards. The court allowed the appeal and set aside the conviction and sentence of the appellant.
Issues: Non-compliance with statutory requirements of Sections 42, 50, and 55 of the NDPS Act, inconsistencies in the prosecution's case, and material irregularities in the search and seizure operation.
Ratio Decidendi: The court emphasized the importance of complying with the statutory requirements of the NDPS Act, especially Sections 42, 50, and 55, and held that non-compliance with these provisions goes to the root of the matter and can cast serious doubts on the veracity of the prosecution case, potentially vitiating the trial.
Final Decision: The court allowed the appeal, set aside the conviction and sentence of the appellant, and ordered the appellant to be set at liberty forthwith if his detention is not required in any other case.
JUDGMENT :
1. The present criminal appeal has been preferred against the order dated 04.05.2016 passed by the Court of the learned Additional Sessions-cum-Special Judge, Angul in Special Case Number 20 of 2014 arising out of Handapa P.S Case Number 14/24.1.2014.
2. The prosecution story hinges on the fact that on 24.01.2014 the informant-Police Officer named Mahendra Dehury (P.W.8), the erstwhile S.I. of Police, Handapa P.S on receipt of some confidential information with respect to alleged transport of contraband ganja by an unknown person in a Honda Shine motorcycle bearing Registration Number OR-05-K-3718 which was heading from Patrapada towards Handapa. He entered the said fact in the Station Diary vide Entry Number 474 dated 24.01.2014 and commanded A.S.I. of Police, P.N. Sahu, Home Guard Laxman Sahu, Home Guard Kamadev Naik, Home Guard Duryodhan Dehury and Home Guard Krupasindhu Pradhan to verify the said information. Accordingly, they proceeded to the spot immediately on 24.1.2014. Around 9.00 A.M. while the police surveillance party were waiting near “Jharana Nala”, they found one person coming on a motorcycle and proceeding towards Handapa and the registration number of the motorcycle bearing same registration number i.e. OR-05-K-3718 and 2 plastic bags were found loaded on the same. The above person was detained with the motorcycle near the aforesaid “Jharana Nala”. On being asked, the accused gave his identity as Sanjay Kumar Behera son of Dasarathi Behera of village Laxmipriyapur and admitted to be carrying two bags weighing nearly 50 Kgs. On being asked he stated that on the request of some unknown person, he was carrying the aforesaid load of ganja so as to deliver the same at Handapa to a certain person. Then the S.I.-Sri Dehury telephonically informed the P.W.11, I.I.C, Handapa P.S. regarding detention of the said accused along with the suspected contraband. He then guarded the accused along with the contraband bags as well as the motorcycle and sent a requisition to the Sub-Divisional Magistrate, Athamalik for deputation of one Executive Magistrate to remain present at the search site. Then he arranged two independent witnesses, namely, Saheb Behera (P.W.1) and Madan Naik (P.W.4) after securing their willingness for the same, he then requested one Kalindi Sahu (P.W. 3) of Handapa Chhak to weigh the contents of the suspected bags and also arranged for materials for sealing of the same. Around 12.00 A.M. the Executive Magistrate one Prabodh Kumar Rout (P.W. 10) who was Addl. Tahasildar, Kishorenagar, arrived at the spot and in the presence of the Executive Magistrate, the official witnesses as well as the two independent witnesses, the loaded bags were unloaded from the motorcycle and on verification, it was found that the first bag contained 21 smaller polythene packets of suspected contraband goods and on measurement of the same, the total weight came to 20 Kgs. and 100gms. The second bag was found to contain 30 numbers of smaller polythene packets and on the measurement of the same, the weight came to be 28 Kgs. and 700 gms. Then the ganja bags along with the motorcycle were seized from the conscious and exclusive possession of the accused in the presence of the Executive Magistrate. The S.I., Shri Dehury drew 25 gms. of ganja in duplicate from the first bag which was marked as Exhibit-A and another 25 gms. of ganja in duplicate from the second bag and the bulk ganja bag was marked as Exhibit-B. The sample packets were marked as Exhibits-A/1, A/2, B/1 and B/2. The specimen seal impression of Sri Dehury was used in sealing the bulk ganja bag and sample packets of the entire process of search and sampling was done in the presence of the accused, the witnesses and the Executive Magistrate. A seizure list was prepared seizing the weighing scale and the device which were forwarded to the custody of the weighman Kalandi Sahu. The brass seal was handed over to the custody of the Executive Magistrate under zimanama. Th
