Orissa High Court

Amresh Chandra Barik vs State Of Odisha on 5 April, 2021

    IN THE HIGH COURT OF ORISSA AT CUTTACK

                   CRLA No.126 of 2015

   From the judgment and order dated 12.02.2015 passed by the
   Additional Sessions Judge -cum- Special Judge, Phulbani in G.R.
   Case No. 07 of 2013.
                          _____________

        Amresh Chandra Barik                 ....           Appellant

                               M/s. Anirudha Das, S.K. Mishra, A.
                               Das, S.K. Rout, Abanindra Das, S.Ch.
                               Mishra, D. Mishra, Advocates

                                  -versus-
        State of Odisha                    ....          Respondent

Mr. Arupananda Das, Additional Government Advocate

CRLA No. 161 of 2015

Premananda Sahu .... Appellant

M/s. Subrat Kumar Das, Pradeep Kumar Das & Debasis Sahoo, Advocates

-versus-

        State of Odisha                    ....          Respondent
                               Mr. Arupananda Das,
                               Additional Government Advocate

                            CORAM:

                    JUSTICE S.K. SAHOO

Date of Hearing : 25.03.2021      Date of Judgment: 05.04.2021

The appellant Amresh Chandra Barik in CRLA No. 126 of

2015 and appellant Premananda Sahu in CRLA No.161 of 2015 faced // 2 //

trial in the Court of learned Additional Sessions Judge -cum- Special

Judge, Phulbani in G.R. Case No. 07 of 2013 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 26.09.2013 at about 9.35 a.m., they were found to be in unlawful

possession of 32 kgs. 550 grams and 34 kgs. 600 grams of

contraband ganja respectively near Surkapata Ghat road at village

Majhipada on Phiringia Gochhapada road.

The learned trial Court vide impugned judgment and order

dated 12.02.2015 found both 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), in default, to undergo further

rigorous imprisonment for period of one year.

Since both the appeals arise out of one common

judgment, with the consent of learned counsel for both the parties,

those were heard analogously and are disposed of by this common

judgment.

2. The prosecution case, in short, is that on 26.09.2013 at

about 9.35 a.m. Madan Mohan Pradhan (P.W.4), Inspector in charge

of Phiringia police station got information from reliable sources that

the appellants were in possession of huge quantity of ganja i.e.

flowering and fruiting tops of cannabis plants and were standing near

// 3 //

Surkapata Ghat on Phiringia Gochhapada road waiting for

transportation of ganja. As it was not possible to obtain a search

warrant, P.W.4 arranged a raiding party comprising of the P.S. staff

with a view to proceed to the spot for detection of the offence. He

also informed Mr. Pravat Chandra Panigrahi (P.W.12), S.D.P.O.,

Sadar, Phulbani over telephone about the proposal to conduct raid

and entered the ground of belief in the Station Diary vide Entry No.

450 dated 26.09.2013. Copies of the ground of belief along with

extract of Station Diary Entry were sent to S.D.P.O., Sadar, Phulbani

as well as Superintendent of Police, Kandhamal. P.W.4 along with the

raiding party members thereafter proceeded to the spot in a police

jeep and on arrival at the spot, they found two persons were standing

by the road side with some plastic and gunny packets. On seeing the

arrival of the police team, those two persons started running, but they

were apprehended soon. On query, those persons disclosed their

names as Amresh Chandra Barik (appellant in CRLA No. 126 of 2015)

and Premananda Sahu (appellant in CRLA No. 161 of 2015) and

admitted to have kept ganja inside the plastic and gunny packets and

waiting for transportation of the same. The appellants denied to have

got any license or authority in support of possession of ganja. After

observing the formalities under section 50 of the N.D.P.S. Act, both

the appellants were searched in presence of the Executive Magistrate

Nabin Kumar Patel (P.W.9) and on personal search of appellant

// 4 //

Amresh Chandra Barik, cash of Rs.9050/-, one original driving license,

two nos. of Nokia mobile phones were recovered and two plastic

packets containing ganja were also recovered from his exclusive and

conscious possession. Similarly, on personal search of appellant

Premananda Sahoo, cash of Rs.5,800/- and one Micromax mobile

phone were recovered and two plastic packets and one gunny packet

containing ganja were also recovered from his exclusive and

conscious possession. On weighment of the ganja recovered from the

possession of appellant Amresh Chandra Barik by weighman Bhabani

Shankar Sahu (P.W.3), it was found to be 32 kg. 550 grams and

similarly the weight of ganja recovered from the possession of

appellant Premananda Sahu were found to be 34 kg. 600 grams.

P.W.4 collected two samples of 50 grams from each bag. After

collection of the samples, P.W.4 stitched, packed and sealed the

sample packets and the bulk ganja packets in presence of the

Executive Magistrate and witnesses by using his personal brass seal.

He prepared the seizure lists showing seizure of ganja and other

articles from the appellants and obtained signatures of the Executive

Magistrate, the witnesses and the appellants on the seizure lists and

also affixed the specimen brass seal used on the seizure lists. He also

obtained signatures of the Executive Magistrate, witnesses and the

appellants on the sample packets and the packets containing bulk

quantity of ganja and also affixed specimen seal on the packets. He

// 5 //

left the weighing apparatus in the zima of weighman (P.W.3) and also

left his personal brass seal in the zima of Dolagobinda Sahu (P.W.2)

by executing Zimanama. He drew up a plain paper F.I.R. (Ext.9) and

requested P.W.12, S.D.P.O., Sadar, Phulbani who arrived at the spot

as per the orders of S.P., Phulbani to take up investigation. The

appellants were arrested and they along with all the seized articles

were handed over to P.W.12.

P.W.12 after taking over charge of investigation from

P.W.4 verified the case records, prepared spot map (Ext.13). He

examined the witnesses and recorded their statements, resealed the

exhibits already seized and sealed by P.W.4 and kept the articles at

Phiringia police station malkhana after due entry in the Malkhana

along with the material objects with a prayer to the learned Special

Judge, Phulbani to send the seized exhibits for chemical examination

by S.F.S.L., Bhubaneswar. As per the direction of the learned Special

Judge, Phulbani, the learned S.D.J.M., Phulbani forwarded the seized

exhibits to S.F.S.L., Bhubaneswar for chemical examination. P.W.12

submitted a detail report (Ext.21) to S.P., Phulbani and the said detail

report and intimation letter (Ext.5) submitted by P.W.4 at the office of

the S.P., Phulbani were seized on 05.12.2013 as per seizure list

(Ext.12). The chemical examination report (Ext.22) indicated that the

exhibits marked as A-1, B-1, C-1, D-1 and E-1 were found to contain

// 6 //

flowering and fruiting tops of cannabis plant i.e. Ganja. On completion

of investigation, on 20.01.2014 P.W.12 submitted charge sheet under

section 20(b)(ii)(C) of the N.D.P.S. Act against the two appellants.

3. The appellants were charged under section 20(b)(ii)(C) of

the N.D.P.S. Act to which they pleaded not guilty and claimed to be

tried.

4. During course of trial, the prosecution examined twelve

witnesses.

P.W.1 Gobinda Chandra Patra and P.W.2 Dolagobinda

Sahu are witness to the seizure, but they did not support the

prosecution case, for which they were declared hostile by the

prosecution. They stated to have signed on some white papers as per

the instruction of the police.

P.W.3 Bhabani Shankar Sahoo is a witness to the seizure

but he also did not support the prosecution case and stated to have

no knowledge about the incident, but he admitted to have signed on

seven packets.

P.W.4 Madan Mohan Pradhan was the I.I.C. of Phiringia

police station, who not only detected the appellants carrying

contraband Ganja at Surkapata Ghat on Phiringia Gochhapada road,

but also seized it and prepared the seizure lists after weighment of

contraband ganja and collected samples. He is the informant of the

case.

// 7 //

P.W.5 Kashyap Pradhan was the Havildar attached to

Phiringia Police Station and he accompanied P.W.4 to the spot. He

stated about the recovery of contraband ganja from the possession of

the appellants in five bags, collection of the samples by P.W.4. He is

also a witness to the seizure of contraband ganja packets and sealing

of those packets.

P.W.6 Santosh Kumar Dalbehera was the Constable

attached to Phiringia Police Station and he is also a witness to the

seizure of the station diary as well as Malkhana register of the police

station as per seizure list Ext.10 and he is also a witness to the

seizure of command certificate vide seizure list Ext.11.

P.W.7 Asanta Pradhan was the Constable attached to

Phiringia Police Station and he is a witness to the seizure of command

certificate as per seizure list vide Ext.11.

P.W.8 Binod Bihari Jani was the Constable attached to

Phiringia Police Station and he accompanied P.W.4 to the spot. He

stated about the recovery of contraband ganja along with other

articles from the possession of the appellants and he is a witness to

the seizure of contraband ganja.

P.W.9 Nabin Kumar Patel was the Tahasildar, Phiringia in

whose presence the contraband ganja was seized from both the

appellants, weighed and sample packets were prepared and those

were also seized.

// 8 //

P.W.10 Bharat Kanhar was the Home Guard attached to

Phiringia Police Station in whose presence the Malkhana register and

station diary book were seized as per seizure list Ext.10.

P.W.11 Brahmananda Pradhan was the constable at

D.P.O., Kandhamal who is a witness to the seizure of intimation letter

of P.W.4 and detail report of P.W.12 as per seizure list Ext.12.

P.W.12 Pravat Chandra Panigrahi was the S.D.P.O.,

Sadar, Phulbani, who on receipt of information from P.W.4 regarding

detection of ganja, proceeded to the spot, took charge of investigation

of the case from P.W.4 and on completion of investigation submitted

charge sheet.

The prosecution exhibited twenty two documents. Ext.1/3

is the seizure list relating to seizure made from appellant Premananda

Sahu, Ext.2/3 is the seizure list relating to seizure made from

appellant Amresh Barik, Ext.3/1 is the zimanama of brass seal,

Ext.4/1 is the zimanama of weighing machine, Ext.5 is the intimation

letter to S.P., Kandhamal, Ext.6 is the notice to appellant Amresh

Chandra Barik, Ext.7 is the notice to appellant Premananda Sahu,

Ext.8 is the order dated 26.09.2013 of Sub-Divisional Magistrate,

Phulbani, Ext.9 is the F.I.R., Ext.10 is the seizure list dated

08.11.2013, Ext.11 is the seizure list dated 30.09.2013, Ext.12 is the

seizure list dated 05.12.2013, Ext.13 is the spot map, Ext.14 is the

forwarding report of appellants, Ext.15 is the forwarding report of

// 9 //

exhibits for chemical examination, Ext.16 is the command certificate,

Ext.17 is the acknowledgement for receipt of M.O., Ext.18 is the

relevant entry no.450 in Station Diary Book, Ext.19 is the relevant

entry no.462 in Station Diary Book, Ext.20 is the relevant entry in

Malkhana register of Phiringia P.S. vide page No.4 (Sl. No.27/13),

Ext.21 is the detail report submitted by P.W.12 to S.P., Kandhamal

and Ext.22 is the Chemical Examination report.

The prosecution also proved nineteen material objects.

M.Os. I, II, X, XI and XII are the packets containing bulk quantity of

ganja, M.Os.III and IV are the original containers (plastic bags),

M.Os. V and VI are the sample packets seized from the appellant

Amresh Chandra Barik, M.Os. VII and VIII are the mobile phones of

the appellant Amresh Chandra Barik, M.O. IX is the D.L. of appellant

Amresh Chandra Barik, M.Os. XIII and XIV are the original containers

(two plastic bags), M.O. XV is the original container (one gunny bag),

M.Os. XVI, XVII and XVIII are the samples of ganja and M.O. XIX is

the mobile phone of appellant Premananda Sahu.

5. The defence plea of the appellant was one of denial and it

was pleaded that they have been falsely implicated in the case.

6. The learned trial Court after analysing the evidence on

record came to hold that since ganja was seized from the possession

of the appellants in a public place which was by the side of road at

Surkapata Ghat on Phiringia Gochhapada road, therefore, there was

// 10 //

no need for compliance of the provision of section 42 of the N.D.P.S.

Act. However, compliance of such provision by the informant can be

said to be an additional precaution. It was further held that P.W.4

meticulously followed the provision of section 50 of the N.D.P.S. Act

during search and seizure. It was further held that no illegality has

been committed either by the informant (P.W.4) or the investigating

officer (P.W.12) during deposit of the seized material objects at P.S.

malkhana or submission of the same to S.F.S.L., Bhubaneswar for

test. Learned trial Court further held that merely because P.W.12

reached at the spot during search and seizure, it cannot be said that

there was any prejudice to the appellants as he was entrusted with

the investigation of the case and thus, the prosecution has succeeded

in proving that both the appellants were in conscious possession of

the contraband Ganja and they were attempting for transportation of

the same. Accordingly, the learned trial Court found both the

appellants guilty of the offence charged.

7. Mr. Anirudha Das, learned counsel appearing for the

appellant Amresh Chandra Barik challenging the impugned judgment

and order of conviction argued that independent witnesses like

P.Ws.1, 2 and 3 have not supported the prosecution case of search

and seizure and therefore, it would be too risky to rely on the version

of the official witnesses only to convict the appellant of the offence

charged. Though P.W.4 stated to have sent the written intimation

// 11 //

regarding ground of belief and extract of Station Diary entry to

P.W.12 as well as to S.P., Kandhamal through C/555 Bhagaban Sahoo

but the said Constable was not examined during trial to substantiate

such aspect and even no one from S.P.'s office has been examined to

prove the receipt of any written intimation from P.W.4 and therefore,

compliance of section 42 of the N.D.P.S. Act is a doubtful feature in

the case. He argued that the brass seal used for sealing the seized

bulk ganja packets and sample packets, though stated to have been

left in the zima of P.W.2 but it was not produced in Court at the time

of initial production of such packets in Court for comparison before

being sent for chemical examination, even the brass seal was not

produced during trial. Though in the forwarding report of the exhibits

sent for chemical examination, it is indicated that facsimile seal

impression of personal seal of P.W.4 taken on a separate sheet was

sent for comparison but there is nothing on record regarding

preparation of such a separate sheet or its production before the

learned Special Judge or Magistrate for verification. He further argued

that the evidence is lacking as to who received the seized contraband

articles and kept it in P.S. Malkhana and all the articles seized were

not kept in Malkhana and there is no material as to when it was taken

out of Malkhana for being produced in Court and therefore, the safe

custody of the articles is a doubtful feature and as such benefit of

doubt should be extended in favour of the appellant.

// 12 //

Mr. Subrat Kumar Das, learned counsel appearing for the

appellant Premananda Sahu adopted the argument advanced by Mr.

Anirudha Das, but added that in view of stringent punishment

prescribed for the offence, the prosecution is required to prove its

case beyond all reasonable doubt with clinching material on every

aspect, which is lacking in the case.

Mr. Arupananda Das, learned Additional Government

Advocate, on the other hand, supported the impugned judgment and

contended that merely because independent witnesses did not

support the prosecution case, the appellants cannot be acquitted

particularly when there is clinching evidence adduced that packets

containing contraband ganja were recovered from the exclusive and

conscious possession of the appellants and the defence has failed to

establish any kind of bias or enmity on the part of the Investigating

Officer with the appellants. It is further contended that since the

search and seizure was made in a public place, therefore, section 43

of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is applicable

in the case. It is further contended that even though the brass seal

was not produced in Court at any point of time but when the packets

containing contraband ganja were produced by P.W.12 in Court, those

were found to be in sealed condition and there is no material that the

seal had been tampered with, therefore, possibility of manipulation

with the seized articles, cannot be accepted. It is further contended

// 13 //

that the learned trial Court has discussed the evidence of witnesses

carefully and also assessed the documents proved by the prosecution

meticulously and has rightly came to the conclusion that the case

against the appellants has been proved beyond all reasonable doubt

and there is no illegality or infirmity in the impugned judgment and

order of conviction and therefore, the appeals should be dismissed.

Independent witnesses not supporting prosecution case:

8. Adverting to the contentions raised by the learned counsel

for the respective parties and coming to the first point canvassed by

Mr. Das, learned counsel for the appellant Amaresh Chandra Barik

relating to non-supporting of the prosecution case regarding search

and seizure by the independent witnesses, it is true that the

independent witnesses like P.Ws.1, 2 and 3 have not supported the

prosecution case for which they have been declared hostile by the

prosecution and allowed to be cross-examined by the learned Special

Public Prosecutor under section 154 of the Indian Evidence Act, 1872,

but merely because the independent witnesses have turned hostile,

the evidence of the official witnesses on that score cannot be

disbelieved. Conviction can be based solely on the testimony of official

witnesses in an N.D.P.S. Act case but the condition precedent is that

the evidence of such witnesses must be reliable, trustworthy and

must inspire confidence. There is no absolute command of law that

the testimony of the official witnesses should always be viewed with

// 14 //

suspicion. Of course, while scrutinising the evidence, if the Court finds

the evidence of the police officials as unreliable and untrustworthy,

the Court may disbelieve them but it should not do so solely on the

presumption that a witness from the department of police should be

viewed with distrust. This is based on the principle that quality of the

evidence weighs over the quantity of evidence. The rule of prudence

requires a more careful scrutiny of the evidence of the police officials,

since they can be said to be interested in the result of the case

projected by them. Absence of any corroboration from the

independent witnesses does not in any way affect the

creditworthiness of the prosecution case. Non-supporting of the

prosecution case by independent witnesses in N.D.P.S. Act cases is a

usual feature but the same cannot be a ground to discard the entire

prosecution case. If the evidence of the official witnesses which is

otherwise clear, cogent, trustworthy and above reproach is discarded

in such cases just because the independent witnesses did not support

the prosecution case, I am afraid that it would be an impossible task

for the prosecution to succeed in a single case in establishing the guilt

of the accused. Therefore, the Court has got an onerous duty to

appreciate the relevant evidence of the official witnesses and

determine whether the evidence of such witnesses is believable after

taking due care and caution in evaluating their evidence. In case of

Prasanta Kumar Behera -Vrs.-State of Orissa reported in

// 15 //

(2016) 64 Orissa Criminal Reports 40, it is held as follows:-

"However, it is the settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be a ground to discard the prosecution case in toto. On the other hand, if the statements of the official witnesses relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence and determine whether the evidence of the Police Officer/Excise Officer is believable after taking due care and caution in evaluating their evidence."

Therefore, the contentions raised that for non-supporting

of the prosecution case relating to search and seizure by the

independent witnesses, it is very risky to rely on the version of official

witnesses cannot be accepted and hence discarded.

Whether compliance of section 42 of the N.D.P.S. Act was a

necessity:

9. Under section 42(1), if the empowered officer receives

reliable information from any person relating to commission of an

offence under the N.D.P.S. Act that the contraband articles and

incriminating documents have been kept or concealed in any building,

conveyance or enclosed place and he reasonably believes such

information, he has to take down the same in writing. However, if the

// 16 //

empowered officer reasonably believes about such aspects from his

personal knowledge, he need not take down the same in writing.

Similarly recording of grounds of belief before entering and searching

any building, conveyance or enclosed place at any time between

sunset and sunrise is necessary under the second proviso to sub-

section (1) of section 42 of the N.D.P.S. Act if the concerned officer

has reason to belief that obtaining search warrant or authorization for

search during that period would afford opportunity for the

concealment of evidence or facility for the escape of an offender.

Section 42(2) of the N.D.P.S. Act states that when an officer takes

down any information in writing under sub-section (1) or records

grounds for his belief under the proviso thereto, he shall send a copy

thereof to his immediate official superior within seventy-two hours.

Law is well settled that total non-compliance with the provisions

under sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is

impermissible and it vitiates the conviction and renders the entire

prosecution case suspect and cause prejudice to the accused.

In case of State of Punjab -Vrs.- Baldev Singh

reported in 1999 (II) Orissa Law Reviews (SC) 474, it is held as

follows:-

"10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and

// 17 //

sunrise, after recording the grounds of his belief. Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of his belief under the proviso to Sub-section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."

In the case in hand, the search and recovery of

contraband ganja was made in a public place and that to during day

time after receipt of reliable information, therefore, in view of the

aforesaid decision, recording of reasons for belief and taking down of

information received in writing with regard to the commission of an

offence before conducting search and seizure was not necessary as it

falls under section 43 of the N.D.P.S. Act and not under section 42 of

the N.D.P.S. Act.

However, P.W.4 has himself come up with a case of

compliance of section 42 of the N.D.P.S. Act on receipt of reliable

information and he stated to have made Station Diary entry no.450

dt. 26.09.2013 (Ext.18) and informed his authorities over telephone

and also through Special Messenger. He proved the intimation letter

// 18 //

to S.P., Kandhamal marked as Ext.5 regarding detection of the

offence in which he enclosed the extract of Station Diary entry. The

intimation letter is dated 26.09.2013 and it was received in the S.P.'s

office on 27.09.2013 and the stamp of S.P., Kandhamal with date and

signature in token of its receipt appears on Ext.5. P.W.12 seized Ext.5

from the office of S.P., Kandhamal under seizure list Ext.12. P.W.11

was the constable at D.P.O., Kandhamal who stated about the seizure

of the intimation letter Ext.5 as per seizure list Ext.12. P.W.12 has

also stated about the receipt of information from P.W.4. Of course, in

the F.I.R., it is mentioned that written intimation regarding ground of

belief along with the extract of Station Diary entry was sent through

C/555 Bhagaban Sahoo, who was neither shown as a charge sheet

witness nor examined during trial, but in my humble view, that by

itself cannot be a ground to discard the entire ocular as well as

documentary evidence adduced by the prosecution in that respect.

Thus, even though compliance of provision under section 42 of the

N.D.P.S. Act was not necessary in the case but it seems that P.W.4

has complied with the same and I find no infirmity in it.

Non-production of brass seal or facsimile seal impression of

personal seal in Court:

10. In the F.I.R. (Ext.9), the informant (P.W.4) has mentioned

that after all the exhibits were properly sealed by using his personal

seal on wax, facsimile seal impression of his personal seal was

// 19 //

embossed on the seizure lists and on two separate sheets of paper

and then his brass seal was handed over to P.W.2.

In his evidence, P.W.4 has stated to have affixed

specimen seal on the sample packets and packets containing bulk

quantity of ganja and then left his personal brass seal in zima of

P.W.2 by executing Zimanama (Ext.3/1). His evidence is silent with

regard to taking of any facsimile seal impression of his personal seal

on separate sheets of paper.

Though P.W.2 admitted his signature as Ext.3 in

Zimanama but he did not support the prosecution case to have

received the personal brass seal of P.W.4.

The evidence of official witnesses like P.Ws.5, 8, 9 is also

silent with regard to taking of facsimile seal impression of personal

seal of P.W.4 on separate sheets of paper and also handing over of

his brass seal by P.W.4 to P.W.2.

Even though the brass seal impression appears on each of

the seizure lists (Exts.1/3 & 2/3) and those seizure lists were proved

by some official witnesses including P.W.9, the Tahasildar, Phiringia

but in view of the evidence on record, it is too difficult to accept that

facsimile seal impression of the personal brass seal of P.W.4 was

taken on two separate sheets of paper and that brass seal of P.W.4

was handed over to P.W.2. Neither the brass seal stated to have been

given to P.W.2 nor the facsimile seal impression of the personal brass

// 20 //

seal of P.W.4 stated to have been taken on two separate sheets of

paper was produced in Court when the seized articles along with the

appellants were produced on 27.09.2013.

The order sheet of the learned Special Judge dated

27.09.2013 indicates as follows:-

".....The I.O. has produced material objects vide Exhibits A, B, C, D, E, A-1, B-1, C-1, D-1, E-1, A-2, B-2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 in sealed condition before this Court and also filed a petition praying to send the Exhibits A-1, B-1, C-1, D- 1 and E-1 to the Director, S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and opinion and to keep the Exhibits A, B, C, D, E, A-2, B-2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 in the District Court Malkhana on the grounds stated therein. Heard. Verified A, B, C, D, E, A-1, B-1, C-1, D-1, E-1, A-2, B- 2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 and found those to be in sealed condition and each of the exhibit contain signatures of witnesses Dolagobinda Sahu, Gobinda Chandra Patra, signature of weighman Bhabani sankar Sahu, signature of E.M., complainant and both the accused persons. Accordingly, the prayer is allowed. Two separate sealed packets are also filed by the I.O. The Malkhana Clerk is directed to receive and keep the exhibits A, B, C, D, E, A-2, B- 2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 in the Court Malkhana along with two separate sealed packets.

Send the case record to the S.D.J.M., Phulbani for sending the Exhibits A-1, B-1, C-1, D-1 and E-1 to

// 21 //

the Director, S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and opinion and return the case record after sending the material object."

On the very day, the case record was received by the

learned S.D.J.M., Phulbani and he has observed as follows:-

".....I.O. has produced the Exhibits A-1, B-1, C-1, D- 1 and E-1 (sealed packets) before me. Verified the exhibits and the same are sent to the Director, S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and opinion vide this office L. No.1747(4) dt.27.09.2013. The case record is submitted to the Court of Sessions Judge -cum- Spl. Judge, Phulbani after sending material objects."

Production of sealed packets of seized contraband article

or sealed sample packets of such article in Court in itself is not

sufficient to prove its safe custody before production. Handing over

the brass seal to an independent, reliable and respectable person and

asking him to produce it before the Court at the time of production of

the seized articles in Court for verification are not the empty

formalities or rituals but is a necessity to eliminate the chance of

tampering with such articles. The Court before which seized articles

are produced is also required to insist on for the production of brass

seal or at least verify the specimen seal impression with reference to

the seals attached to the seized bags or the sample packets, if the

samples are collected by the officer conducting search and seizure

before its production in Court and such verification aspect should be

// 22 //

specifically reflected by the Court in the order sheet. The prosecution

is required to prove the proper sealing of seized articles and complete

elimination of tampering with such articles during its retention by the

investigating agency. In absence of such procedure being strictly

followed, there is every chance of tampering with the articles or with

the seal. The entire path of journey of the contraband articles from

the point of its seizure till its arrival before the chemical examiner has

to be proved by adducing cogent, reliable and unimpeachable

evidence as in a case of this nature, the punishment is stringent in

nature otherwise there would be every chance of prejudice being

caused to the accused.

In the case in hand, no plausible explanation is coming

forth from the side of the prosecution for non-production of the brass

seal stated to have been given to P.W.2 or the facsimile seal

impression of the personal brass seal of P.W.4 stated to have been

taken on two separate sheets of paper at the time of production of

seized articles in Court and even at the time of trial. In my humble

view, it amounts to a serious lacuna in the prosecution case. Mere

mentioning by the I.O. (P.W.12) in the forwarding report for chemical

examination that the facsimile seal impression of the personal seal of

P.W.4 taken in a separate sheet used for the purpose of sealing of the

exhibits was also sent for comparison, is not sufficient.

// 23 //

Therefore, taking of facsimile seal of personal seal of

P.W.4 on separate sheets of paper and also handing over of his brass

seal to P.W.2 remains shrouded in mystery and liable to be discarded.

Retention of seized contraband articles in safe custody:

11. P.W.12 has stated that he received the exhibits already

seized and sealed by P.W.4 and kept the articles at P.S. Malkhana

after due entry in the Malkhana register vide Entry no.27/13. On

08.11.2013, he seized Malkhana register of Phiringia police station on

production by IIC, Phiringia police station in presence of witnesses

and prepared seizure list Ext.10. He also proved the relevant entry in

the Malkhana register of Phiringia police station vide page no.04 (sl.

no.27/13) as Ext.20.

P.W.10 Bharat Kanhar who was the Homeguard attached

to Phiringia police station also proved the seizure of Malkhana register

by P.W.12.

On the perusal of the true copy of the Malkhana register

(Ext.20), the entry no.27/13 dated 26.09.2013 indicates in column

no.3 regarding receipt of one Micro max mobile phone, cash of

Rs.5,800/-, bulk quantity of ganja kept in a plastic pocket weighing 20

Kg. 450 gms. marked as Ext.C, original sample ganja of 50 gms.

marked as Ext.C-1, duplicate sample ganja of 50 gms. marked as

Ext.C-2, another plastic packet of bulk quantity ganja marked as

Ext.C-3, another bulk quantity of ganja kept in plastic packet weighing

// 24 //

8 Kg. 850 gms. marked as Ext.D and original sample ganja of 50 gms.

marked as Ext.D-2.

At this stage, on perusal of the evidence of P.W.4, it

reveals that he has proved M.Os.I and II to be the packets containing

bulk quantity of ganja, M.Os. III & IV to be the original containers

(plastic bags), M.Os. V & VI to be the sample packets seized from the

possession of appellant Amresh Chandra Barik, M.Os. VII & M.O. VIII

to be the mobile phones and M.O. IX to be the driving licence of

Amresh Chandra Barik respectively. Similarly, he has proved M.Os. X,

XI, XII to be the packets containing bulk quantity of ganja, M.Os. XIII,

XIV & XV to be the original containers (two plastic bags & one gunny

bag), M.Os. XVI, XVII, XVIII to be the sample containing ganja and

M.O. XIX to be mobile phone seized from the possession of the

appellant Premananda Sahoo.

Thus, it is clear that all the articles seized by P.W.4 on

26.09.2013 were not entered in the Malkhana register (Ext.20) nor

kept in Malkhana of Phiringia police station on 26.09.2013. No

explanation is coming forth from the side of the prosecution as to

where the other articles were kept. Even though number of material

objects which were marked as exhibits were produced in Court on

27.09.2013 as reveals from the order sheet of the Court as indicated

in the preceding paragraph but very few exhibits were kept in

Malkhana. Out of the sample packets marked as Exts.A-1, B-1, C-1,

// 25 //

D-1 and E-1 which were sent for chemical examination as per the

forwarding report Ext.15 and were examined as per the chemical

examination report Ext.22, only Ext.C-1 was entered in Malkhana

circumstances under which found has been left blank. Column no.6

which relates to date of receipt at police station is also kept blank,

Column no.7 which relates to date and manner of disposal etc. has

also been left blank.

In the case of Ramakrushna Sahoo -Vrs.- State of

Odisha reported in (2018) 70 Orissa Criminal Reports 340, it is

held as follows:-

"Rule 119 of the Orissa Police Rules which deals with malkhana register states, inter alia, that all the articles of which police take charge, shall be entered in detail, with a description of identifying marks on each article, in a register to be kept in P.M. form No. 18 in duplicate, and a receipt shall be obtained whenever any article or property of which the police take charge is made over to the owner or sent to the Court or disposed of in any other way and these receipt shall be numbered serially and filed, and the number of receipts shall be entered in column No. 7. Therefore, it is clear that 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

// 26 //

register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court."

No other staff of Phiringia police station including P.W.4,

the Inspector in charge of Phiringia police station stated that all the

articles seized under seizure lists Exts.1/3 and 2/3 were kept in the

malkhana. Therefore, the keeping of the seized articles in safe

custody before its production in Court is a doubtful feature.

12. In view of the foregoing discussions, when the brass seal

of P.W.4 with which bulk quantity and sample packets of contraband

ganja were sealed so also the specimen seal impression stated to

have been taken in separate sheets were not produced in Court either

at the time of production of the seized articles in Court for verification

or during trial and when all the seized articles including four out of the

five sample packets sent for chemical examination were not kept in