(From The Judgment Dated ... vs State Of Odisha
2021 Latest Caselaw 8667 Ori

AFR

                      HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.324 of 2014

    (From the judgment dated 18.06.2014 passed by the learned
    Sessions Judge-cum-Special Judge, Nayagarh in T.R. Case No.2 of
    2011)


      Jagabandhu Sahoo @ Bulu                    ...     Appellant

                                     Versus

      State of Odisha                            ...     Respondent


      For Appellant              :     M/s. Ashok Sahoo, B.S. Das and
                                       S. Mohapatra, Advocates

      For Respondent             :    Mr. P.K. Maharaj,
                                      Additional Standing Counsel

      PRESENT :

                THE HON'BLE SHRI JUSTICE S. K. PANIGRAHI

Date of Hearing: 05.08.2021          Date of judgment: 19.08.2021


S. K. Panigrahi, J.

1. The present appeal has been filed challenging the judgment and

order dated 18.06.2014 passed by the learned Sessions Judge-cum-

Special Judge, Nayagarh in T.R. Case No.2 of 2011 convicting the

appellant under Section 20(b)(ii)(C) of the Narcotics Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS

Act") and sentencing him to undergo rigorous imprisonment for 10

years and to pay a fine of Rs.1,00,000/- in default, to undergo

rigorous imprisonment for a further period of six months.

// 2 //

2. Shorn of unnecessary details, the facts of the instant case are that

on 14.09.2010, the IIC of Sadar P.S. Nayagrah Sri Jagal Kumar

Mallik was performing patrolling duty on the Mahipur and Malisahi

Road. At around 6.15 P.M., a Bolero vehicle bearing registration

No.OR-02AP-2595 sped past the patrolling vehicle towards Malisahi

thus arousing the IIC's suspicion. The IIC proceeded to chase the

vehicle and apprehended it between village Chahili and Raipur.

3. Upon stopping the vehicle, the IIC confronted and questioned the

two occupants as to why there was a strong pungent smell

emanating from the vehicle. The occupants then allegedly, admitted

to carrying and bringing 'ganja' in the vehicle from the Jeypore

Chitrakonda area. As the area where the vehicle was apprehended

was a forest area, the vehicle and its occupants were moved to the

nearby Malisahi O.P. The accused gave their identities as Bulu @

Jagabandhu Sahoo, i.e., present appellant and Bikali Singh and

they chose for the vehicle to be searched in the presence of a

Magistrate and a Senior Police officer. The IIC accordingly made a

requisition to the S.P., in pursuance of which Sri Kalpataru Behera,

O.A.S. Tahasildar-cum-Executive Magistrate, Nayagarh

accompanied by S.D.P.O., Nayagarh arrived at the spot and the

vehicle was searched in their presence at Malisahi O.P. A huge

quantity of 'ganja' in 14 gunny sacks was recovered, which weighed // 3 //

156 kgs and 150 grams. The weighing machine was seized and

sealed samples of the 'ganja' were collected by the IIC using his

brass seal. The mobile phones of both the accused were also seized

for further investigation. The IIC arrested the accused persons and

drew up a plain paper F.I.R. himself on his own information.

4. The IIC himself took up investigation of the case and during the

course of investigation recorded statements of the witnesses, seized

the vehicle and its documents. The matter was put before the

learned Sessions Judge-cum-Special Judge, Nayagarh as T.R. Case

No.2 of 2011, wherein after an elaborate examination of all the

evidence, submissions and counter submissions, the learned

Sessions Judge-cum-Special Judge, Nayagarh vide his order dated

18.06.2014 was pleased to convict the appellant under Section

20(b)(ii)(C) of the NDPS Act and sentenced the appellant to undergo

rigorous imprisonment for 10 years and to pay a fine of

Rs.1,00,000/- in default of which the present appellant would have

to undergo six additional months of rigorous imprisonment.

5. The learned counsel for the appellant submits that the learned trial

court has arrived at its conclusion of conviction erroneously by

ignoring the material discrepancies in the prosecution's witness

testimonies. The counsel for the appellant contends that the

depositions and other materials available on record were not verified // 4 //

properly and thus incorrectly relied upon. It is also strongly

contended by the counsel for the appellant that the learned trial

court did not take into consideration the mandatory provisions of

detection, search and seizure in the instant case highlighting

certain aspects of the search and seizure that occurred in the

present case.

6. Per contra, the learned counsel for the State has vehemently denied

any material irregularities in the entire search and seizure that

occurred in the present case. The learned counsel for the State also

contended that the learned trial court's order is very well reasoned

and no error is apparent on the face of the same.

7. Heard the learned Counsel for the rival parties and perused the

records of the case. At the outset, it appears that the learned trial

court has elaborately examined the thirteen prosecution witnesses

produced before it. Therefore, this Court will constrain the

discussion to the grounds raised by the present appellant only. The

grounds urged by the appellant can broadly be divided into (i) The

only three non-official witnesses have turned hostile and merely

relying on the official witnesses is not proper (ii) Alleged material

contradictions in the statement of witnesses and (iii) The procedure

followed in the search, seizure and possession of the apprehended

vehicle along with the contraband and the appellant was not proper // 5 //

and in ignorance of the mandatory provisions thereby vitiating the

trial.

8. Firstly, the question that arises for examination of this Court is

whether reliance may be placed on the statements of official

witnesses. It is often necessary that the testimony of an

official witness should be corroborated by an independent witness

but an independent witness turning hostile cannot lead to the

assumption that the prosecution story is entirely false.

However, as held by the Hon'ble Supreme Court in Krishan Chand

v. State of Himachal Pradesh 1, in cases where there is an

absence of independent witnesses, the evidence of the police

witnesses/ official witnesses must be scrutinised with greater care

especially when the evidence presented by them contradicts the

other or highlights some incongruity.

9. Now this Court must contemplate whether there were any material

contradictions in the statements of the witnesses as alleged by the

appellant. The general position of law concerning proof as has been

laid down by the Hon'ble Supreme Court time and again is that the

harsher is the punishment, the more is the strictness of proof

required from the prosecution. In the present case, the following

inconsistencies attract our attention:

1 (2018) 1 SCC 222 // 6 //

P.W.13, the I.I.C has produced maximum information pertaining to

the facts and circumstances of the case including the presentation

of all the details of search and seizure of the apprehended vehicle

and the contraband. All other witnesses including P.W.5, P.W.6,

P.W.7 and P.W.8 have more or less lent support to the statement of

P.W.13 when posed with similar questions pertaining to the amount

of 'ganja' recovered, number of bags, weight of the 'ganja', the type

of the vehicle, the movement of the vehicle from the forested area

rife with unsafe activities to a safer location at the Malisahi O.P., the

presence of everybody on the spot.

However, there is an inconsistency in the statement of P.W.4, the

Tahasildar, Nayagarh who was deputed by the S.D.M. to remain

present at the spot during search and seizure who had, however,

said during his examination in chief that 10 packets of 'ganja' were

recovered from the apprehended vehicle, but had then proceeded to

correct himself at the stage of cross-examination. The statement of

P.W.4, who has also stated that when he arrived at the Malisahi

O.P., the apprehended vehicle was closed and nobody was present

in the vehicle. He further stated that the I.I.C. then proceeded to

open the vehicle for the search and seizure of the contraband but

the apprehended persons including the appellant were already in

police hazat at that time. It was contended by the learned counsel // 7 //

for the appellant that if the apprehended vehicle was shifted to

Malisahi O.P. from the spot of detection and the apprehended

persons had been shifted to police hazat then the importance of the

vehicle being searched in the presence of the Magistrate had

completely lost its significance.

P.W. 12 Chittaranjan Patra, the Havildar who was at that time

attached to P.V.F., Nayagarh and had accompanied P.W.13 during

patrolling has also testified about how they gave chase to the vehicle

of the accused persons and intercepted it on the way to

subsequently bring it to Malisahi O.P. where in the presence of the

Tahasildar, Nayagarh, 14 packets of 'ganja' were recovered from the

vehicle and weighment was made. However, this witness failed to

disclose the name of the accused persons and was then declared as

hostile.

P.W. 11 Narasingh Bahinipati, an A.S.I. of police attached to the

Nayagarh Sadar P.S. on the alleged date of occurrence during cross-

examination has admitted that the seized articles had been kept

inside the Malkhana and he was the one who had put his seal on

the seized articles received at the P.S. However, the I.I.C./P.W.13

had claimed in his testimony that he was the one who had sealed

the lock of the Malkhana with his brass seal.

// 8 //

P.W. 13 also stated that an original copy of the Malkhana Register

was available in the office of S.P., Nayagarh but no page certificate

has been appended to attest to that effect. Further, P.W. 13 also

failed to give any reason as to why a copy of the S.D. Entry No.270,

dated 14.09.2010 of Nayagarh P.S. is not available in the case

record. There is also some material discrepancy in the method and

mode of guarding the seized articles.

To understand the importance of the method of seizure, sealing and

guarding the seized articles, reliance can be placed, in this regard,

on the judgments of the Hon'ble High Court of Delhi

in Safiullah v. State 2 and Prem Singh v. State 3 and of the

Hon'ble High Court of Punjab and Haryana in Bhola Singh v. State

of Punjab 4 and Gurjant Singh v. State of Punjab 5.

It is noted herein that the evidence of all material facts pertaining to

search and seizure, production of the contraband articles in the

Court, the Chemical Examination Report showcasing the contents of

the bags produced in the Court to be "ganja", it is hard to ignore the

conclusion that the letter of the law prescribed has in actuality been

followed in earnestness to its fullest spirit.

1993 25 DRJ 248

1996 Cri LJ 3604

(2005) 2 RCR (Cri)

(2007) 4 RCR (Crl) 226 // 9 //

10. Lastly, the question put forth before this Court for

contemplation is that whether the procedure followed in the search,

seizure and possession of the apprehended vehicle along with the

contraband and the appellant, was proper or not and the same is in

violation of the mandatory provisions of law. In view of the mandate

of Sections 50 and 55 of the Act, a duty is cast on the Officer-in-

Charge of the Police Station to receive and keep in safe custody of

the articles seized and delivered to him and it is mandatory on his

part to affix a seal on the seized articles before receiving in

Malkhana and unless such mandate is complied with in letter and

spirit, the prosecution case cannot be said to be free from doubt.

Reliance can be placed on the judgment of the Hon'ble Supreme

Court in Arif Khan v. State of Uttarakhand 6 and State of

Rajasthan v. Parmanand 7.

In this regard, this Court observes that there are some material

discrepancies in the statement of the witnesses including the

inability of the I.I.C. in following the mandatory requirements

prescribed in law, which do not render the prosecution case free

from doubt. The prosecution has not been able to explain the

reasons behind the material contradictions despite knowing that the

2018 SCC OnLine SC 459

(2014) 5 SCC 345 // 10 //

degree of proof required to be presented before the Court is higher

when the punishment is stricter.

11. In the light of above referred deficiencies, inconsistencies and

discrepancies, the statements of the official witnesses without

corroboration from independent sources cannot be believed to base

conviction for stringent provisions of the Act. The law on this aspect

is that "stringent the punishment, stricter is the proof". In such

cases, the prosecution evidence has to be examined very zealously so

as to exclude every chance of false implication. The prosecution has

failed to establish the commission of offence by the appellant beyond

reasonable doubt.

12. In the result, this Court finds that the appellant is not guilty of the

offence under Section 20(b)(ii)(C) of the NDPS Act and the judgment

of the learned trial court cannot be sustained.

13. Accordingly, the Criminal Appeal is allowed. The judgment of

conviction and order of sentence dated 18.06.2014 passed by the

learned Sessions Judge-cum-Special Judge, Nayagarh in T.R. Case

No.2 of 2011 is hereby set aside. The appellant be set at liberty

forthwith, if his detention is not required in connection with any

other case.

// 11 //

14. The LCR be returned forthwith to the court from which it was

received.

(S.K.Panigrahi) Judge

Orissa High Court, Cuttack The 19th day of August, 2021/AKK/LNB/AKP