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2025 Supreme(Ori) 239
IN THE HIGH COURT OF ORISSA AT CUTTACK
G. SATAPATHY, J.
Chand Mohammad – Appellant
Versus
State of Odisha - Respondent
Crla no.734 of 2024 & JCRLA No.93 of 2024
Decided on : 21-03-2025
Advocates Appeared :
For the Appellants : Mr. S.K. Dash, Advocate, Mr. K. Nayak, Amicus Curiae
For the Respondent : Mr. A.K. Apat, Addl. PP
For the Appellants :Mr. S.K. Dash, Advocate, Mr. K. Nayak, Amicus Curiae
For the Respondent: Mr. A.K. Apat, Addl. PP
Evidence under the NDPS Act requires strict compliance with procedural mandates to uphold conviction; failure to comply vitiates the case.
Headnote:(A) Narcotic Drugs and Psychotropic Substances (NDPS) Act - Section 20(b)(ii)
(C) - Conviction for possession of contraband - Convicted individuals challenged their conviction and sentence of 10 years' rigorous imprisonment and fine of Rs.1,00,000/- imposed by the trial court - Prosecution's failure to comply with Sections 42 and 52-A of the NDPS Act leading to insufficiency of evidence. (Paras 3, 9, 11)
(B) Compliance with NDPS Act - The court emphasized that substantial compliance with procedural mandates is critical, specifically the necessity for certifying inventory, photographs, and samples by a Magistrate under Section 52-A to uphold the evidentiary standard. (Para 11)
Facts of the case:
Appellants, while in possession of 80 kg of Ganja in a Tata Sumo during routine patrol duties, were arrested, leading to trial and subsequent conviction. Appellants contended ineffective prosecution evidence, citing lack of independent witnesses' support.
Findings of Court:
The evidence failed to establish the necessary protocol under the NDPS Act was followed, particularly regarding the handling and production of evidence.
Issues: Determining whether the prosecution met the evidentiary requirements of the NDPS Act and evaluating credibility of evidence provided.
Ratio Decidendi: The court ruled that without proving compliance with Section 52-A and due care in maintaining the integrity of evidence, conviction cannot stand.
Result: Appeals allowed; convictions set aside, appellants to be released.
| Table of Content |
|---|
| 1. outline of case background and conviction details (Para 1 , 2 , 3) |
| 2. contention on insufficiency of evidence for conviction (Para 4) |
| 3. issues regarding compliance with ndps act and evidence insufficiencies (Para 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 4. conclusion on the acquittal of the appellants (Para 12) |
JUDGMENT :
G. Satapathy, J.
1. Since these two appeals arise out of one conviction in the same case record, both the appeals are heard together and disposed of by way of this common judgment.
2. The appellants Chand Mohammad in CRLA No.734 of 2024 and Mohammad Akil in JCRLA No.93 of 2024 assail their conviction and sentence as recorded by the learned 1st Additional Sessions Judge-Cum- Special Judge (NDPS), Berhampur, Ganjam by the impugned judgment dated 19.04.2024 passed in 2(a)CC Case No.110 of 2022 (N).
By the aforesaid impugned judgment, the appellants have been convicted for commission of offence punishable U/Ss.20(b)(ii)(C) of NDPS Act and sentenced to undergo Rigorous Imprisonment (RI) for ten(10) years with payment of fine of Rs.1,00,000/- (Rupees One Lakh), in default whereof, to undergo RI for a further period of one(1) year with the benefit of set off of the pre trial detention against the substantive sentence.
3. The prosecution case in brief is on 22.11.2022, PW2-the Inspector of Excise, EI & EB Unit- II (SD), Berhampur and staff while performing patrolling duty in Aska road, Berhampur noticed one while Tata Sumo Gold bearing Regd. No.MP-04TB-1610 at Ankushpur going speedily. Accordingly, PW2 and staff detained the Tata Sumo vehicle, recovered Contraband Ganja in two separate jerry bags along with the appellant Chand Mohammad who was driving the vehicle and the appellant Mohammad Akil as the helper and PW2, thereafter, by procuring local witness PW3 weighed and seized the Contraband Ganja by collecting samples from it. PW2 also sealed the Contraband Ganja by her personal brass seal and handed it over to PW1- the Excise Constable and arrested the accused persons after observing all formalities, so also seized the Tata Sumo Gold vehicle and other documents and forwarded the appellants to the Court along with the seized articles which on weighment had come to 80Kgs. Further, PW2 successfully prayed to the Court for drawing of samples, and accordingly, the learned SDJM, Berhampur drew the samples by the order of the learned Special Judge and the samples were sent to Assistant Chemical Examiner, Divisional Excise Chemical Testing Laboratory (SD) (DECTL), Berhampur.
3.1. On this incident, an advance Prosecution Report (PR) was drawn which subsequently on investigation culminated in submission of final PR No.827 of 2022-23 by PW2, which ultimately resulted in trial in the present case after the appellants pleaded not guilty to the charge for commission of offence U/Ss.20(b)(ii)(C) of NDPS Act.
3.2. In support of its case, the prosecution examined altogether 3 (three) witnesses vide PWs.1 to 3; proved 23 (Twenty-three) documents under Exts.P1 to P-23 and identified 3 (three) material objects under MOI-III as against no evidence whatsoever by the defence. The plea of the appellants in the course of trial was denial simplicitor and false implication.
3.3. After analyzing the evidence on record upon hearing the learned counsel for the parties, the learned trial Court convicted the appellants for commission of offence punishable Under Section 20 (b)(ii)(C) of the NDPS Act and sentenced each of them to the punishment indicated in the first paragraph. Being aggrieved with the judgment of conviction and sentence, the appellants have preferred two separate appeals.
4. In the course of hearing of these two appeals, Mr. Soubhagya Kumar Dash, learned counsel for the appellant-Chand Mohammad in CRLA No.734 of 2024 submits that not only the prosecution evidence is shaky, but also it has failed to prove the charge against any of the appellants and the prosecution evidence on record never establishes any of the mandatory compliance as
