Orissa High Court
Sibaram Swain vs State Of Orissa on 15 March, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 580 of 2013
An appeal under section 374 of the Code of Criminal Procedure
from the judgment and order dated 27.11.2013 passed by the
Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a)
C.C. No.11 of 2011(N).
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Sibaram Swain ....... Appellant
-Versus-
State of Orissa ....... Respondent
For Appellant: - Mr. V. Narasingh
For Respondent: - Mr. P.K. Mohanty
Addl. Standing Counsel
CRLA No. 44 of 2014
Ratnakar Swain ....... Appellant
-Versus-
State of Orissa ....... Respondent
For Appellant: - Mr. V. Narasingh
(Amicus Curiae)
For Respondent: - Mr. P.K. Mohanty
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 18.02.2021 Date of Judgment: 15.03.2021
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S. K. SAHOO, J. The appellants Sibaram Swain (CRLA No.580 of
2013) and Ratnakar Swain (CRLA No.44 of 2014) faced trial in
the Court of learned Sessions Judge -cum- Special Judge,
Ganjam, Berhampur in 2(a) C.C. No.11 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').
They were found guilty by the learned trial Court of the offence
charged and sentenced 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 a period of one year vide impugned judgment and order
dated 27.11.2013.
Since both the criminal appeals arise out of one
common judgment and order of conviction, with the consent of
learned counsel for the respective parties, those were heard
analogously and disposed of by this common judgment.
2. The prosecution case, in short, is that Sri Sarat
Chandra Bhanja (P.W.3), Sub-Inspector of Excise, E.I. & E.B.,
Unit-II (S.D.), Berhampur received a credible telephonic
information on 04.07.2011 at about 6.00 a.m. about
transportation of Ganja in an auto rickshaw near Ambapua and
Gopalpur junction area and on getting such information, he
reduced the information into writing and informed his superior
authority i.e. the I.I.C. of Excise Sri S.P. Gantayat vide Ext.7 and
as per the direction of Sri Gantayat, P.W.3 proceeded to the spot
to verify the correctness of the information. Four excise
constables including P.W.2 and one A.S.I. of Excise also
accompanied him. The prosecution case further reveals that near
Gopalpur junction area, when they were performing patrolling
duty, around 11.00 a.m. an auto rickshaw bearing registration
no.OR-07N-1450 was found coming towards Berhampur town
from Ambapua side. On suspicion, the said auto rickshaw was
detained in which one person was found on the rear seat and
another person was found driving the vehicle. On being asked,
the driver disclosed his name as Sibaram Swain (appellant in
CRLA No.580 of 2013) whereas the other person sitting on the
rear seat gave his identity as Ratnakar Swain (appellant in CRLA
No.44 of 2014). It is the further case of the prosecution that the
auto rickshaw being detained was found to be carrying four
airbags on the rear seat, which were by the side of the appellant
Ratnakar Swain and one jerry basta was found on the foot rest
of the rear seat. Both the appellants, on being asked by P.W.3
about the contents of airbags and jerry basta, kept mum. On
suspicion, P.W.3 disclosed his intention to search the airbags and
jerry basta. P.W.1, an independent witness was then called to
remain present during the proposed search and seizure. It is the
further case of the prosecution that the appellants were then
asked by P.W.3 as to whether they wanted the search to be
conducted in presence of an Executive Magistrate or Gazetted
Officer. The appellants opted to be searched by P.W.3 and such
options were given in writing vide Exts.3/1 and 4/1. Thereafter,
on observing other formalities such as giving of personal search
etc. to the appellants and others, when no incriminating item
was found from the possession of P.W.3, the airbags and jerry
basta were searched by bringing those from the auto rickshaw.
All the four airbags and jerry basta being opened were found to
be containing Ganja. P.W.3 conducted preliminary tests such as
by rubbing on the palm and burning a little portion out of the
contents found inside the airbags and jerry basta and from his
experience, he could ascertain that it was ganja. Weighment
being made, four airbags were found to contain 14 Kgs., 16
Kgs., 17 Kgs. and 13 Kgs. of ganja whereas the jerry basta was
found to be containing 10 Kgs. of ganja. The airbags and basta
were then sealed by using paper slips and the brass seal of
P.W.3 obtaining the signatures of others including the appellants.
The said brass seal was then given in zima of P.W.2 under
proper zimanama (Ext.5/1). P.W.3 next prepared the seizure list
(Ext.1/1) to that effect. The appellants being arrested were
directly produced before the Court of learned Special Judge,
Berhampur on the same day. P.W.3 made a prayer before the
Court for collection of samples from the airbags and jerry basta
and for their onward dispatch to DECTL, Berhampur at
Chatrapur, which being allowed, learned S.D.J.M., Berhampur
collected samples from airbags and jerry basta and those were
forwarded for chemical examination. The report came to the
same effect as was the finding of preliminary test of P.W.3 so far
as the contraband items are concerned. P.W.3 also ascertained
the ownership of the vehicle standing to be in the name of the
appellant Sibaram Swain. P.W.3 thereafter submitted a
preliminary report describing the details of such seizure and
other follow up action in that regard. Thereafter, on completion
of investigation, P.W.3 submitted prosecution report against the
appellants to stand their trial.
3. The appellants on being charged under section
20(b)(ii)(C) of the N.D.P.S. Act for unlawful possession of 70
Kgs. of contraband ganja, refuted the charge, pleaded not guilty
and claimed to be tried.
4. During course of trial, in order to prove its case, the
prosecution examined three witnesses.
P.W.1 Kalu Charan Sethi is an independent witness to
the seizure who was a betel shop owner, did not support the
prosecution case, rather he stated that on being asked by some
excise officials, he put his signatures on some written papers ten
to fifteen in numbers and proved Exts.1 to 6 as his signatures.
P.W.2 Antaryami Sahu was the Constable of Excise
attached to E.I. & E.B., Southern Division, Berhampur who
accompanied P.W.3 for patrolling duty and stated about search
and seizure of ganja from the possession of the appellants. On
being asked by P.W.3, he called P.W.1 in whose presence the
airbags and basta were searched. He is also a witness to the
seizure of bags containing ganja and other contemporaneous
documents such as zimanama.
P.W.3 Sarat Chandra Bhanja was the S.I. of Excise,
E.I. & E.B., Berhampur who not only detained the auto rickshaw,
seized the contraband ganja, produced the seized ganja and the
appellants in Court after their arrest but on completion of
investigation, submitted the prosecution report.
5. The prosecution exhibited eight documents. Ext.1/1
is the seizure list, Ext.2/1 is the spot map, Ext.3/1 is the option
given to the appellant Sibaram Swain, Ext.4/1 is the option given
to the appellant Ratnakar Swain, Ext.5/1 is the zimanama,
Ext.6/1 is the preliminary test report, Ext.7 is the intimation
given to I.I.C. and Ext.8 is the chemical examination report.
The prosecution proved twelve material objects.
M.O.I is the brass seal, M.Os.II to VI are the packets containing
second part of sample, M.O.VII is the packet containing residue
ganja, M.Os.VIII to XI are the airbags containing residue ganja
and M.O.XII is the jerry basta.
6. The defence plea of the appellant Ratnakar Swain
was that at the relevant point of time, he had alighted from a
bus near the first gate, when the Excise Constable (P.W.2) called
him and brought him to the Excise Office in a vehicle, where his
signatures were obtained in different documents and thereafter
he was falsely implicated in the case.
The defence plea of the appellant Sibaram Swain was
that when he was coming driving his auto rickshaw, the
appellant Ratnakar Swain requested him to take him to
Berhampur and sat on the rear seat. It was his further plea that
he had no connection with the airbags and basta and he was also
not aware about its contents.
The defence exhibited the arrest memo of the
appellant Ratnakar Swain as Ext.A.
7. The learned trial Court after assessing the evidence
on record has been pleased to hold that the prosecution is found
to have established by clear and cogent evidence that the auto
rickshaw bearing registration no. OR-07N-1450 was detained at
the relevant place and time. It was further held that the
evidence of P.Ws.2 and 3 cannot be disbelieved even without
P.W.1's supporting evidence with regard to the fact that the
appellant Ratnakar Swain was coming in the auto rickshaw
sitting on the rear seat. While dealing with the provision of
section 35 of the N.D.P.S. Act regarding culpable mental state of
the appellants, the learned trial Court held that the prosecution
has established the presence of the appellants in the auto
rickshaw followed by recovery of M.Os. VII to XII beyond
reasonable doubt and therefore, the presumption as to the
culpable mental state of both the appellants got raised pushing
the onus on them to prove the non-existence of such mental
state for the same offence by proving their absence of intention,
motive, knowledge of a fact and belief in or having any reason to
believe as per the required mode with the standard of proof
beyond a reasonable doubt. With regard to non-compliance of
the provision of section 50 of the N.D.P.S. Act, the learned trial
Court has held that for search of vehicle, this provision did not
require mandatory compliance in view of the decision of the
Hon'ble Supreme Court in the case of State of H.P. -Vrs.-
Pawan Kumar reported in (2005)4 Supreme Court Cases
350. It was further held that there was hardly any time lag
between seizure, production and also chemical examination and
considering the quantity of contraband seized in the case, the
possibility of planting looks an impossibility. It was further held
that the samples were taken from what were seized and were
also having been chemically examined and accordingly, the
appellants were found guilty of the offence charged.
8. Mr. V. Narasingh, learned counsel appearing for the
appellant Sibaram Swain in CRLA No.580 of 2013 who was also
appointed as Amicus Curiae in CRLA No.44 of 2014 for the
appellant Ratnakar Swain, placed the impugned judgment, the
evidence of the witnesses, the exhibited documents and
contended that it is the specific plea of the appellant Sibaram
Swain that he was the auto rickshaw driver and he was taking
the appellant Ratnakar Swain to Berhampur on rental basis who
was sitting on the back seat. The appellant further pleaded that
he had got no connection with the air bags as well as jerry bag
found in the auto rickshaw and he was not even aware of its
contents. He argued that the plea taken by appellant Sibaram
Swain gets corroboration from the evidence of the prosecution
witnesses who stated that on being asked about the contents of
the air bags and jerry basta, the appellant Sibaram Swain told
that he had no knowledge about its contents as those were kept
by the appellant Ratnakar Swain and he was carrying appellant
Ratnakar Swain as well as the bags on payment of hire charges.
He further argued that there is no material on record about any
previous acquaintance between the two appellants or any such
contract between them to carry the bags with an exorbitant price
taking risk or that the appellant Sibaram Swain knowingly
permitted his auto rickshaw to be used as a conveyance for
commission of the offence. He further argued that the conduct of
the appellant Sibaram Swain in not trying to flee away when he
was asked to stop the auto rickshaw is a very relevant factor
under section 8 of the Evidence Act and it shows that he was not
aware of the contents of the bags and also absence of culpable
mental state. He further argued that the learned trial Court has
committed certain error of record which has resulted in perverse
finding and therefore, the appellant Sibaram Swain should be
given benefit of doubt.
Arguing for the appellant Ratnakar Swain, Mr. V.
Narasingh, learned Amicus Curiae urged that there is statutory
infraction of the provision under section 42 of the N.D.P.S. Act
which is mandatory in nature so also the provision under section
57 of the N.D.P.S. Act which though directory in nature but
cannot be totally ignored by the Investigating Officer. Such
failure, according to the learned counsel will have a bearing on
the appreciation of evidence regarding arrest of the accused and
seizure of the articles. The brass seal given in the zima of P.W.2
was not produced at the time of production of seized ganja in
Court for drawal of sample for comparison and the tampering of
seal cannot be ruled out and since P.W.3 who detected and
seized contraband ganja is himself the investigating officer, who
on completion of investigation submitted the prosecution report,
serious prejudice has been caused to the appellants and
therefore, benefit of doubt should also be extended in favour of
the appellant Ratnakar Swain. He placed reliance on the
decisions of the Hon'ble Supreme Court in the cases of Abdul
Rashid Ibrahim Mansuri -Vrs.- State of Gujarat reported in
(2000) 18 Orissa Criminal Reports (SC) 512, Bhola Singh
-Vrs.- State of Punjab reported in 2011 (I) Orissa Law
Reviews (SC) 1043, Manoj Kumar Panigrahi -Vrs.- State of
Orissa reported in (2019) 75 Orissa Criminal Reports 761
and Herasha Majhi -Vrs.- State of Odisha reported in
(2019) 76 Orissa Criminal Reports 728.
9. Mr. P.K. Mohanty, learned Additional Standing
Counsel appearing for the State on the other hand supported the
impugned judgment and contended that appellant Sibaram
Swain has failed to prove that he had no such culpable mental
state even though he was carrying the airbags and jerry basta
containing ganja in his auto rickshaw. He argued that since the
confessional statement of an accused before the Excise Officials
is inadmissible in view of the provisions of Section 25 of the
Evidence Act, the said statement made cannot be utilised in
support of defence plea. The manner in which the ganja was
being transported and the presence of both the appellants inside
the auto rickshaw at the time of detention and the prevaricating
statements made by the appellants after their arrest relating to
the ganja bags and also in their accused statements proves the
offence. Placing reliance on the ratio laid down in the cases of
Amar @ Amarnath Nayak -Vrs.- State of Orissa reported in
2018 (I) Orissa Law Reviews 562, Surinder Kumar -Vrs.-
State of Punjab reported in (2020)2 Supreme Court Cases
563, Sajan Abraham -Vrs.- State of Kerala reported in
(2001)6 Supreme Court Cases 692 and Karnail Singh -Vrs.-
State of Haryana reported in (2009)8 Supreme Court
Cases 539, he argued that the appeals should be dismissed.
10. Let me now first deal with the contentions raised by
the learned counsel for the respective parties so far as the
appellant Sibaram Swain is concerned.
Out of three witnesses examined on behalf of the
prosecution, P.W.1 has not supported the prosecution case and
P.Ws.2 and 3, who are the official witnesses have stated about
the detention of the auto rickshaw, search and seizure of
contraband ganja from it. Law is well settled as held in the case
of Surinder Kumar (supra) that the evidence of official
witnesses cannot be distrusted and disbelieved, merely on
account of their official status.
P.W.2 has stated that when they detained the auto
rickshaw while performing their patrolling duty, the appellant
Sibaram Swain was driving the vehicle and on being asked, he
disclosed his name. Appellant Ratnakar Swain was sitting on the
rear seat and he also disclosed his name. When they noticed four
numbers of air bags and one jerry bag lying on the backside of
the rear seat and asked about the contents of those bags,
appellant Sibaram Swain told them that he had no knowledge
about the contents of the bags as those bags were kept by
appellant Ratnakar Swain and he was carrying him as well as the
bags on payment of hire charges. When the appellant Ratnakar
Swain was asked about the contents of those bags, he admitted
that the bags were kept by him in the auto rickshaw and that he
was travelling on payment of hire charges but he also maintained
silent with regard to the contents of those bags. In the cross-
examination, P.W.2 further stated that appellant Sibaram Swain
produced relevant documents concerning the auto rickshaw and
appellant Ratnakar Swain disclosed that he was carrying the
bags in the auto rickshaw having hired it for the purpose. P.W.2
further stated that no sooner did they give signal to the driver of
the auto rickshaw i.e. appellant Sibaram Swain, he stopped the
vehicle.
P.W.3 stated that when he noticed the auto rickshaw
coming towards Berhampur town from Ambapua side during
patrolling, on suspicion, he detained the same and found that the
appellant Sibaram Swain was driving the auto rickshaw and
appellant Ratnakar Swain was sitting on the rear seat of auto
rickshaw keeping four air bags by his side and one jerry basta
near his legs. He further stated that when he asked about the
contents of the air bags and the jerry basta to both the
appellants, they remained silent. In the cross-examination,
P.W.3 stated that the auto rickshaw is a public carrier one and he
had verified the R.C. book and appellant Ratnakar Swain had
claimed the ownership of the air bags and jerry basta before
him. He further stated that he had not directed his investigation
to find out if there was any relationship between the two
appellants and he had also not directed his investigation as
regards the starting point of the auto rickshaw.
At this juncture, the accused statement of the
appellant Sibaram Swain needs consideration. The appellant
pleaded that when he was coming driving his auto rickshaw,
appellant Ratnakar Swain requested him to take him to
Berhampur and sat on the rear seat. It was further pleaded that
he had no connection with the air bags and basta and he was
also not aware about its contents.
Thus, the cumulative effect of the evidence of the
P.Ws.2 and 3 as well as the defence plea of the appellant
Sibaram Swain is as follows:-
(i) The appellant Sibaram Swain was coming driving
the auto rickshaw from Ambapua side and going
towards Berhampur town when it was detained by
the excise staff;
(ii) No sooner P.W.3 and his team gave signal to the
driver of the auto rickshaw to stop the vehicle, the
appellant Sibaram Swain stopped the vehicle;
(iii) Appellant Sibaram Swain produced the
documents of the auto rickshaw and told that he was
carrying appellant Ratnakar Swain as well as the
bags on payment of hire charges and that he had no
knowledge about the contents of the bags which were
kept by the appellant Ratnakar Swain;
(iv) Appellant Ratnakar Swain claimed ownership of
the air bags and jerry basta before the excise officials
at the spot.
At this juncture, three sections of the N.D.P.S. Act
i.e. sections 25, 35 and 54 need consideration. The aforesaid
three sections are extracted herein below:-
25. Punishment for allowing premises, etc.,
to be used for commission of an offence.-
Whoever, being the owner or occupier or
having the control or use of any house, room,
enclosure, space, place, animal or conveyance,
knowingly permits it to be used for the
commission by any other person of an offence
punishable under any provision of this Act, shall
be punishable with the punishment provided for
that offence.
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this
Act which requires a culpable mental state of the
accused, the Court shall presume the existence
of such mental state but it shall be a defence for
the accused to prove the fact that he had no
such mental state with respect to the act
charged as an offence in that prosecution.
(2) For the purpose of this section, a fact is said
to be proved only when the Court believes it to
exist beyond a reasonable doubt and not merely
when its existence is established by a
preponderance of probability.
54. Presumption from possession of illicit
articles.- In trials under this Act, it may be
presumed, unless and until the contrary is
proved, that the accused has committed an
offence under this Act in respect of-
(a) any narcotic drug or psychotropic substance
or controlled substance;
(b) any opium poppy, cannabis plant or coca
plant growing on any land which he has
cultivated;
(c) any apparatus specially designed or any
group of utensils specially adopted for the
manufacture of any narcotic drug or
psychotropic substance or controlled substance;
or
(d) any materials which have undergone any
process towards the manufacture of a narcotic
drug or psychotropic substance or controlled
substance, or any residue left of the materials
from which any narcotic drug or psychotropic
substance or controlled substance has been
manufactured, for the possession of which he
fails to account satisfactorily.
The basic ingredients of section 25 of the N.D.P.S.
Act thus appear to be as follows:-
(i) The accused must be either the owner, or
occupier or he must have the control or use of
the house, room, enclosure, space, place, animal
or conveyance;
(ii) He must have knowingly permitted such
house, conveyance etc. to be used for the
commission of an offence punishable under any
provision of N.D.P.S. Act by any other person.
Mere ownership of the vehicle in which transportation
of contraband articles was found is by itself not an offence. The
words 'knowingly permits' are significant. The expression
'knowingly' has to be given due weight. As per the Chambers
Dictionary, 12th Edition, 'knowingly' means in a knowing manner,
consciously, intentionally. In the case of Raghunath Singh
-Vrs.- State of Madhya Pradesh reported in 1967
Maharashtra Law Journal 575, a three-Judge Bench of the
Hon'ble Supreme Court has held that the words 'knowing' or
'knowingly' are used to indicate that knowledge as such must be
proved either by positive evidence or circumstantially before
mens rea can be established. The words, 'knowing' or 'knowingly'
are obviously more forceful than the words 'has reason to
believe', because those words insist on a greater degree of
certitude in the mind of the person who is set to know or to do
the act knowingly. It is not enough if the evidence establishes
that the person has reason to suspect or even to believe that a
particular state of affairs existed. When these words are used,
something more than suspicion or reason to believe is required.
Thus, it is for the prosecution to establish that with
the owner's or driver's knowledge, the vehicle was used for
commission of an offence under the N.D.P.S. Act. However, once
the prosecution establishes the ownership as well as grant of
permission by the accused to use his house or vehicle etc. by
another person for commission of any offence under the N.D.P.S.
Act, the burden shifts to the accused and he has to give rebuttal
evidence to disprove such aspects. It is not always expected of
an owner of a commercial vehicle to know what luggage the
passenger of his vehicle was carrying with him/her particularly
when the owner has engaged a driver for running of the vehicle.
At best, the owner cautions his driver not to carry any suspected
person or suspected article in the vehicle. Similarly, it would be
too much to expect of a driver of the vehicle to enquire into
details regarding the contents of the luggage carried by the
passenger as he is mainly concerned with the hire charges.
Therefore, there is possibility that without knowing the contents
of the luggage, the owner or driver of the vehicle may permit the
passenger to carry the luggage in which contraband articles are
secretly kept and in such a scenario, it would not be proper and
justified to hold the owner or the driver guilty of commission of
offence under the N.D.P.S. Act merely for the illegal act of the
passenger without any material to show that it was knowingly
permitted. It would depend on the nature of evidence adduced in
the case to case basis, the facts and circumstances of the case,
the nature and quantity of contraband articles transported, the
immediate conduct of the driver and the passenger of the vehicle
at the time when the vehicle was intercepted or asked to be
stopped. The statements made by the driver and the passenger
relating to the contraband articles immediately after the
detention was made, how and when the contract was made to
carry the passenger with luggage, the previous acquaintance if
any between the owner/driver of the vehicle with the passenger
and the amount of hire charges settled for carrying the luggage
are certain relevant factors for consideration. It would be a
travesty of justice to prosecute the owner or driver of a vehicle
and to hold them guilty for the act committed by a passenger
travelling in the vehicle who was found to be carrying contraband
articles in his luggage without even any semblance of material
that the vehicle was knowingly permitted to be used for the
commission of the offence.
Sections 35 and 54 of the N.D.P.S. Act raise
presumptions with regard to the culpable mental state on the
part of the accused and also place the burden of proof in this
behalf on the accused. However, the presumption would operate
in the trial of the accused only in the event the circumstances
contained therein are fully satisfied. An initial burden exists upon
the prosecution and only when it stands satisfied, the legal
burden would shift. If the prosecution fails to prove the
fundamental facts so as to attract the rigours of section 35 of the
N.D.P.S. Act, the actus reus cannot be said to have been
established. It would be profitable to refer to a few cases and
appreciate the ratio laid down in it.
In the case of Abdul Rashid Ibrahim Mansuri
(supra), while analysing the provision under section 35 of the
N.D.P.S. Act, the Hon'ble Supreme Court held as follows:-
"21. No doubt, when the appellant admitted that
narcotic drug was recovered from the gunny
bags stacked in the auto rickshaw, the burden of
proof is on him to prove that he had no
knowledge about the fact that those gunny bags
contained such a substance. The standard of
such proof is delineated in Sub-section (2) as
"beyond a reasonable doubt". If the Court, on an
appraisal of the entire evidence does not
entertain doubt of a reasonable degree that he
had real knowledge of the nature of the
substance concealed in the gunny bags then the
appellant is not entitled to acquittal. However, if
the Court entertains strong doubt regarding the
accused's awareness about the nature of the
substance in the gunny bags, it would be a
miscarriage of criminal justice to convict him of
the offence keeping such strong doubt dispelled.
Even so, it is for the accused to dispel any doubt
in that regard.
22. The burden of proof cast on the accused
under Section 35 can be discharged through
different modes. One is that, he can rely on the
materials available in the prosecution evidence.
Next is, in addition to that he can elicit answers
from prosecution witnesses through cross-
examination to dispel any such doubt. He may
also adduce other evidence when he is called
upon to enter on his defence. In other words, if
circumstances appearing in prosecution case or
in the prosecution evidence are such as to give
reasonable assurance to the Court that appellant
could not have had the knowledge or the
required intention, the burden cast on him under
Section 35 of the Act would stand discharged
even if he has not adduced any other evidence
of his own when he is called upon to enter on his
defence."
In the case of Bhola Singh (supra), the Hon'ble
Supreme Court held as follows:-
"While dealing with the question of possession in
terms of Section 54 of the Act and the
presumption raised under Section 35, this Court
in Noor Aga -Vrs.- State of Punjab and Anr.
(2008)16 Supreme Court Cases 417 while
upholding the constitutional validity of Section
35 observed that as this Section imposed a
heavy reverse burden on an accused, the
condition for the applicability of this and other
related sections would have to be spelt out on
facts and it was only after the prosecution had
discharged the initial burden to prove the
foundational facts that Section 35 would come
into play. Applying the facts of the present case
to the cited one, it is apparent that the initial
burden to prove that the appellant had the
knowledge that the vehicle he owned was being
used for transporting narcotics still lay on the
prosecution, as would be clear from the word
"knowingly", and it was only after the evidence
proved beyond reasonable doubt that he had the
knowledge would the presumption under Section
35 arise. Section 35 also presupposes that the
culpable mental state of an accused has to be
proved as a fact beyond reasonable doubt and
not merely when its existence is established by a
preponderance of probabilities. We are of the
opinion that in the absence of any evidence with
regard to the mental state of the appellant, no
presumption under Section 35 can be drawn.
The only evidence which the prosecution seeks
to rely on is the appellant's conduct in giving his
residential address in Rajasthan although he was
a resident of Fatehabad in Haryana while
registering the offending truck cannot by any
stretch of imagination fasten him, with the
knowledge of its misuse by the driver and
others."
In the case of Amar @ Amarnath Nayak (supra),
this Court has been pleased to hold as follows:-
"Section 35 of the N.D.P.S. Act deals with
presumption of 'culpable mental state' and it
provides that in any prosecution for an offence
under N.D.P.S. Act which requires a 'culpable
mental state' of the accused, the Court shall
presume the existence of such mental state. The
'culpable mental state' includes intention,
motive, knowledge of a fact and belief in, or
reason to believe, a fact. However, it is for the
defence to prove that the accused had no such
mental state with respect to the act charged as
an offence in that prosecution. The accused is to
prove that he was not in conscious possession of
the contraband if it is proved by the prosecution
that he was in possession thereof and he is also
to prove that he had no such mental state with
respect to the act charged as an offence.
xxx xxx xxx
Law is well settled that the prosecution has to
prove its case beyond all reasonable doubt
whereas the accused can prove its defence by
preponderance of probabilities. Inference of
preponderance of probabilities can be drawn not
only from the materials brought on records by
the parties but also by reference to the
circumstance upon which the accused relies.
Section 106 of the Evidence Act clearly enjoins
that when any fact is especially within the
knowledge of any person, the burden of proving
that fact is upon him. Section 35(2) of the
N.D.P.S. Act requires the accused to prove
beyond a reasonable doubt that he had no
culpable mental state with respect to the act
charged. The general principle regarding the
discharge of burden by preponderance of
probability is not applicable. The burden can be
discharged by an accused adducing cogent and
reliable evidence which must appear to be
believable or by bringing out answers from the
prosecution witnesses or showing circumstances
which might lead the Court to draw a different
inference."
The Hon'ble Supreme Court in the case of Hanif
Khan -Vrs.- Central Bureau of Narcotics reported in 2019
SCC OnLine SC 1810 held as follows:-
"8....The prosecution under the N.D.P.S. Act
carries a reverse burden of proof with a culpable
mental state of the accused. He is presumed to
be guilty consequent to recovery of contraband
from him and it is for the accused to establish
his innocence unlike the normal rule of criminal
jurisprudence that an accused is presumed to be
innocent unless proved guilty. But that does not
absolve the prosecution from establishing a
prima facie case only whereafter the burden
shifts to the accused. In Noor Aga -Vrs.- State
of Punjab reported in (2008)16 Supreme
Court Cases 417, it was observed as follows:
"58. Sections 35 and 54 of the Act, no
doubt, raise presumptions with regard to
the culpable mental state on the part of the
accused and also place the burden of proof
in this behalf on the accused; but a bare
perusal of the said provision would clearly
show that presumption would operate in the
trial of the accused only in the event the
circumstances contained therein are fully
satisfied. An initial burden exists upon the
prosecution and only when it stands
satisfied, would the legal burden shift. Even
then, the standard of proof required for the
accused to prove his innocence is not as
high as that of the prosecution. Whereas
the standard of proof required to prove the
guilt of the accused on the prosecution is
'beyond all reasonable doubt' but it is
'preponderance of probability' on the
accused. If the prosecution fails to prove
the foundational facts so as to attract the
rigours of Section 35 of the Act, the actus
reus which is possession of contraband by
the accused cannot be said to have been
established."
9. Because there is a reverse burden of proof,
the prosecution shall be put to a stricter test for
compliance with statutory provisions. If at any
stage, the accused is able to create a reasonable
doubt, as a part of his defence, to rebut the
presumption of his guilt, the benefit will
naturally have to go to him."
The Hon'ble Supreme Court in the case of Mohan Lal
-Vrs.- The State of Punjab reported in 2018 (II) Orissa
Law Reviews 485 held as follows:-
"10. Unlike the general principle of criminal
jurisprudence that an accused is presumed
innocent unless proved guilty, the N.D.P.S. Act
carries a reverse burden of proof under Sections
35 and 54. But that cannot be understood to
mean that the moment an allegation is made
and the F.I.R. recites compliance with statutory
procedures leading to recovery, the burden of
proof from the very inception of the prosecution
shifts to the accused, without the prosecution
having to establish or prove anything more. The
presumption is rebuttable. Section 35(2)
provides that a fact can be said to have been
proved if it is established beyond reasonable
doubt and not on preponderance of probability.
The stringent provisions of the N.D.P.S. Act,
such as Section 37, the minimum sentence of
ten years, absence of any provision for
remission, do not dispense with the requirement
of the prosecution to establish a prima facie
case beyond reasonable doubt after
investigation, only after which the burden of
proof shall shift to the accused. The case of the
prosecution cannot be allowed to rest on a
preponderance of probabilities."
In the case of Naresh Kumar -Vrs.- State of
Himachal Pradesh reported in (2017)15 Supreme Court
Cases 684, it is held as follows:-
"9. The presumption against the accused of
culpability under Section 35 and under Section
54 of the Act to explain possession satisfactorily,
are rebuttable. It does not dispense with the
obligation of the prosecution to prove the charge
beyond all reasonable doubt. The presumptive
provision with reverse burden of proof, does not
sanction conviction on basis of preponderance of
probability. Section 35(2) provides that a fact
can be said to have been proved if it is
established beyond reasonable doubt and not on
preponderance of probability."
In the case of Union of India (UOI) -Vrs.-
Sanjeev V. Deshpande reported in 2014 (II) Orissa Law
Reviews (SC) 707, it is held as follows:-
"Section 35 stipulates that in any prosecution for
an offence under the Act which requires a
culpable mental state of the accused, the Court
trying offence is mandated to assume the
existence of such mental state, though it is open
for the accused to prove that he had no such
mental state."
In the case of Dehal Singh -Vrs.- State of
Himachal Pradesh reported in (2010)9 Supreme Court
Cases 85, it is held as follows:-
"Section 35 of the Act recognizes that once
possession is established, the Court can
presume that the accused had a culpable mental
state, meaning thereby conscious possession.
Further the person who claims that he was not
in conscious possession has to establish it.
Presumption of conscious possession is further
available under Section 54 of the Act, which
provides that accused may be presumed to have
committed the offence unless he accounts for
satisfactorily the possession of contraband."
In the case of Madan Lal and Anr. -Vrs.- State of
H.P. reported in (2003)7 Supreme Court Cases 465,
wherein it has been held as follows:-
"22. The expression 'possession' is a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. It is impossible, as was observed
in Superintendent & Remembrancer of Legal
Affairs, West Bengal v. Anil Kumar Bhunja and
Ors.: 1979 Cri.L.J. 1390, to work out a
completely logical and precise definition of
'possession' uniformly applicable to all situations
in the context of all statutes.
23. The word 'conscious' means awareness
about a particular fact. It is a state of mind
which is deliberate or intended.
24. As noted in Gunwantlal v. The State of
M.P.: 1972 CriLJ 1187 possession in a given
case need not be physical possession but can be
constructive, having power and control over the
article in case in question, while the person
whom physical possession is given holds it
subject to that power or control.
25. The word 'possession' means the legal right
to possession (See Health v. Drown (1972) (2)
All ER 561). In an interesting case, it was
observed that where a person keeps his fire arm
in his mother's flat which is safer than his own
home, he must be considered to be in
possession of the same. (See: Sullivan v. Earl of
Caithness, 1976 (1) All ER 844).
26. Once possession is established, the person
who claims that it was not a conscious
possession has to establish it, because how he
came to be in possession is within his special
knowledge. Section 35 of the Act gives a
statutory recognition of this position because of
the presumption available in law. Similar is the
position in terms of Section 54 where also
presumption is available to be drawn from
possession of illicit articles."
Mr. V. Narasingh, learned counsel appearing for the
appellants placed paragraph 11 of the impugned judgment and
submitted that the observation made therein that the evidence
of P.W.3 that the appellant Ratnakar Swain claimed the bags to
be of his own, has not been corroborated by P.W.2 is an error of
record inasmuch as P.W.2 has specifically stated in cross-
examination that the appellant Ratnakar Swain disclosed before
him that he was carrying the bags in the said auto rickshaw
having hired it for the purpose. I find substantial force in the
argument of the learned counsel for the appellants that the
learned trial Court has committed an error of record in the
aforesaid aspect.
The learned counsel for the appellants further drew
the attention of the Court to the observation made in paragraph
11 of the impugned judgment, wherein it has been observed that
in the present case when all proved and attending circumstances
are cumulatively viewed, provision of section 43(b) of the
N.D.P.S. Act also got attracted to say that one was the
companion of another or in company and that also leads to
drawal of presumption under section 54 of the N.D.P.S. Act,
which has not been satisfactorily accounted for.
Section 43(b) of the N.D.P.S. Act states that any
officer of any of the departments mentioned in section 42 of the
said Act, can detain and search any person whom he has reason
to believe to have committed an offence punishable under the
said Act and if such person has any narcotic drug or psychotropic
substance or controlled substance in his possession and such
possession appears to him to be unlawful, arrest him and any
other person in his company. Merely because a person is
arrested being in the company of another person against whom
reasonable belief arises to have committed the offence under the
N.D.P.S. Act, that would not ipso facto prove his culpable mental
state as required under section 35 of the N.D.P.S. Act
particularly in view of the definition of the term 'culpable mental
state' as appearing in the explanation to section 35(1) of the
said Act. Section 54 of the N.D.P.S. Act no doubt raises
presumption from possession of illicit articles, but again it states
that such presumption can be raised only when the person in
possession fails to account such possession satisfactorily.
Adverting to the contention raised by the learned
counsel for the State that confessional statement of appellant
Sibaram Swain made to Excise Officials at the spot cannot be
utilised in support of defence plea, few decisions would be suffice
to deal with the same. The majority view in the case of Tofan
Singh -Vrs.- State of Tamil Nadu reported in (2020) 80
Orissa Criminal Reports (SC) 641 (Para 155) is that the
officers who are invested with powers under Section 53 of the
N.D.P.S. Act are 'police officers' within the meaning of Section 25
of the Evidence Act, as a result of which any confessional
statement made to them would be barred under the provisions of
Section 25 of the Evidence Act, and cannot be taken into account
in order to convict an Accused under the N.D.P.S. Act.
In the case of Madaiah -Vrs.- State reported in
1992 Criminal Law Journal 502, a Division Bench of Madras
High Court held as follows:-
"8. Reverting now to the argument of learned
counsel, it is pointed out that neither u/s. 25 nor
u/s. 26 of the Evidence Act, there is any
prohibition for the accused to make use of his
own confession or to rely upon the said
confession for his benefit although the sections
make it very evident that a confession made to a
Police Officer by the accused in detention if it is
u/s. 25, it is totally inadmissible, whereas u/s.
26, it is admissible provided it is made before a
Magistrate. In either event, it is pointed out and
in our opinion rightly too, the controversy herein
is not covered either by S. 25 or 26 of the Act
and there is no other provision occurring on this
point. In reality we think, there is no bar in law
precluding the accused from relying upon his
own confession for his purposes. That such is
certainly the position as the provisions of the
Evidence Act stand is not disputed by the
learned Public Prosecutor.
9. It is relevant at this stage to point out that
u/s. 8 of the Evidence Act, the conduct of the
accused subsequent to the occurrence is very
relevant. Taking that aspect of the matter into
consideration, the fact of the accused going
straight to the Police Station and making a
statement explaining his conduct in that behalf
would be clearly admissible but for the fact that
his conduct is demonstrated by the statement of
the accused admitting the commission of a
crime.
10. Be that as it may, there is nothing in the
Evidence Act that precluded an accused from
relying upon his confession for his own purpose.
This advantage, no doubt, the prosecution does
not have because of the total ban enacted u/s.
25 in making use of the confession in any
manner barring the limited user, the prosecution
can make of it u/s. 26 provided the confession is
made in the presence of a Magistrate. The
accused is not untrammeled by either of these
sections in case he desires to rely on the
confession. This appears to be the considered
view of the Lahore and the Madras High Courts
in Lal Khan's case (1949 Cri LJ 977) and in In Re
Mottai Thevar's case (1952 Cri LJ 1210). The
dictum of the Lahore High Court in Lal Khan's
case (1949 Cri LJ 977) is as follows:
"Where an accused person himself makes
a statement which is taken down as a
first information report, the statement is
inadmissible against the accused as it
amounts to a confession to a Police
Officer. But there is no bar to using such
a confession in favour of the accused."
11. Although this decision was not referred to
by the later decision of the Madras High Court in
Mottai Thevar's case: AIR 1952 Mad 586 ,
the ratio therein is no different. The Bench
consisting of their Lordships Mack and
Somasundaram JJ. indeed a very eminent one
laid down that :
"Where the accused immediately after
killing the deceased goes to the police
station and makes a clean breast of the
offence, and the statement forms the first
information of the offence, though the
statement cannot be used against the
accused, S. 25, Evidence Act does not bar
its use in his favour."
Of course there was some difference
between the two learned judges touching the
need to retain or abrogate Ss. 25, 26 and 27 of
the Evidence Act. The brief highlights of the
stand taken by Mack J. in that behalf is in para 8
of the decision whereas the contrary stand taken
by Somasundaram, J. is at para 9.
Notwithstanding the ideological difference in the
stands taken by the two judges, touching the
amendment and repeal of Ss. 25, 26 and 27 of
the Evidence Act, both fully agreed that the
confession made to a Police Officer in custody
while it could be used against the accused u/S.
27 of the Act, the ban aforesaid, however, did
not preclude the accused from making use of the
confession itself. Para 11 of the judgment which
features the brief reasoning of Somasundaram,
J. makes that aspect of the matter very clear.
His Lordship observes:
"If it is to be used against the accused,
then S. 25 is a bar and it cannot be
admitted but it is to be used in favour of
the accused, I do not think that S. 25 is a
bar and the confession can well be
admitted." (underline is by me to add
emphasis).
A Division Bench of Madras High Court in the case of
Sudalaimani -Vrs.- State reported in 2014-2-LW (Crl) 372:
2014 (4) CTC 593, while distinguishing the ratio laid down in
Mottai Thevar's case (supra), held that if a confession is given
to the police officer before the start of investigation, then it can
be used in favour of the accused as held in Mottai Thevar's
case. If confession is made after the commencement of the
investigation, it cannot be used to give any benefit or advantage
to the accused in the light of the ban imposed by section 162 of
Cr.P.C.
P.W.3 in his evidence stated that he made
correspondence to the R.T.O., Ganjam, Chatrapur to ascertain
the ownership of the auto rickshaw bearing registration no.OR-
07-N-1450 and it was reported to him that the name of the
registered owner of the vehicle is appellant Sibaram Swain. Since
in the case in hand, the immediate statement made by the
appellant Sibaram Swain, the owner -cum- driver of the auto
rickshaw after the vehicle was detained was before the start of
investigation, in my humble view, he is not precluded from
relying upon his confession for his own purpose or in support of
his defence plea. The immediate statement was that he had no
knowledge about the contents of the bags as the bags had been
kept by the appellant Ratnakar Swain and that he was carrying
him as well as the bags on payment of hire charges as stated by
P.W.2, which is also the defence plea taken by the appellant
Sibaram Swain in his accused statement coupled with the
statements of both P.W.2 and P.W.3 that appellant Ratnakar
Swain claimed ownership of the air bags and jerry basta is
admissible under section 6 of the Evidence Act as res gestae as it
is simultaneous with the incident or substantial
contemporaneous that was made immediately after the
occurrence. The essence of the doctrine of the res gestae is that
fact which, though not in issue, is so connected with the fact in
issue as to form part of the same transaction becomes relevant
by itself. This rule is, roughly speaking, an exception to the
general rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact admissible under
section 6 of the Evidence Act is on account of the spontaneity
and immediacy of such statement or fact in relation to the fact in
issue. But it is necessary that such fact or statement must be
part of the same transaction. From the very beginning, the
appellant Sibaram Swain had expressed his ignorance about the
contents of the airbags as well as the jerry bag. Add to it, his
conduct in stopping the vehicle when signal was given by the
Excise officials to stop and in not trying to flee away from the
spot is also another factor which goes against culpable state of
mind. Subsequent conduct is relevant and can be considered
under section 8 of the Indian Evidence Act. This section lays
down that the conduct of any party in reference to any fact in
issue and conduct of any person, an offence against whom is the
subject of any proceeding is relevant, whether it was previous or
subsequent. The subsequent conduct of accused may be definite
counter to his culpability totally inconsistent with innocence. I
find no material on record about any previous acquaintance
between the two appellants and even P.W.3 has stated that he
had not directed his investigation to find out if there remained
any relationship between the appellants. There is also no
material that any such contract between the appellants to carry
the bags with an exorbitant price taking risk. There is also no
evidence that any such smell was coming out of the air bags or
jerry basta to create suspicion in the mind of the driver. The
circumstances appearing in the prosecution evidence are not of
such a nature so as to give reasonable assurance to this Court
that appellant had the knowledge or the required intention to
carry the contraband articles. The prosecution has failed to
discharge the initial burden to prove that the appellant had the
knowledge that the vehicle he was driving was being used for
transporting contraband articles. The evidence of the two official
witnesses, the answers elicited from them in the cross-
examination and from the circumstances, this Court entertains
strong doubt regarding appellant's awareness about the nature
of substance in the air bags and jerry basta found in his auto
rickshaw and in my considered opinion, the appellant is
successfully able to create a reasonable doubt, as part of his
defence, to rebut the presumption of his guilt.
Thus, I am of the humble view that it cannot be said
that the appellant Sibaram Swain had any knowledge of the
nature of substance in the air bags and jerry basta and that he
knowingly permitted his vehicle to be used for the commission of
offence and it also cannot be said that he failed to account
satisfactorily the possession of the contraband ganja found in the
vehicle. In view of the foregoing discussion, the impugned
judgment and order of conviction of the appellant Sibaram Swain
cannot be sustained in the eye of law and accordingly, the same
is hereby set aside.
11. Now coming to the contentions raised by the learned
Amicus Curiae so far as appellant Ratnakar Swain is concerned,
those are enumerated herein below:-
(i) There is statutory infraction of the provision
under section 42 of the N.D.P.S Act which is
mandatory in nature;
(ii) P.W.3 has not followed the provision under
section 57 of the N.D.P.S. Act, which though
directory in nature but cannot be totally ignored by
the Investigating Officer inasmuch as such failure will
have a bearing on the appreciation of evidence
regarding arrest of the appellant and seizure of the
contraband articles;
(iii) The brass seal given in the zima of P.W.2 was
not produced at the time of production of seized
ganja in Court for drawal of sample for comparison
and the tampering of seal cannot be ruled out;
(iv) Serious prejudice has been caused to the
appellants as P.W.3 who detected and seized
contraband ganja, himself investigated the case and
submitted prosecution report.
P.W.2 has stated that the appellant Ratnakar Swain
was sitting on the rear seat of the auto rickshaw and four
numbers of airbags and one jerry bag were lying on the backside
of the rear seat and when the appellant was asked about the
contents of those bags, he admitted that the bags had been kept
by him and that he was travelling on payment of hire charges
but he maintained silent with regard to the contents of those
bags. P.W.2 further stated that the bags were subsequently
found to be containing ganja. P.W.3 has almost stated in a
similar manner except to the extent that when he asked as
regards the contents of the airbags and the jerry basta to both
the appellants, they remained silent though he stated that
appellant Ratnakar Swain claimed ownership of those bags and
jerry basta before him.
Whether there was statutory infraction of the provision
under section 42 of the N.D.P.S Act:
P.W.3 stated that while he was in his office, on
receipt of a telephonic information about transportation of ganja
near Ambapua and Gopalpur junction area, he reduced the
information in writing and immediately informed his superior
authority i.e. Sri S.P. Gantayat, IIC of Excise vide Ext.7.
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. 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. 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
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. The copy of information taken down in
writing under sub-section (1) or the grounds of belief recorded
under the second proviso to sub-section (1) of section 42 of the
N.D.P.S. Act has to be sent to his immediate superior official
within seventy-two hours.
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
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 of Karnail Singh -Vrs.- State of
Haryana reported in (2009) 44 Orissa Criminal Reports
183, the Hon'ble Supreme Court has held that the material
difference between the provisions of sections 42 and 43 of the
N.D.P.S. Act is that 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 seizure of contraband article
was made from one auto rickshaw which is also a public carrier
one as stated by P.W.3. The time of detection was during day
time around 11.00 a.m. and the vehicle was seized at the public
place carrying contraband articles. Therefore, in my humble
view, section 43 of the N.D.P.S. Act would be attracted in the
case and recording of reasons for his belief and for taking down
of information received in writing with regard to commission of
an offence before conducting search and seizure was not
required. However, it is not a case where P.W.3 suddenly carried
out search at a public place and detected contraband ganja in
the auto rickshaw but he had already received the telephonic
information about transportation of ganja while he was in his
office and he has also come up with a case of compliance of
section 42 of the N.D.P.S. Act.
An endorsement on Ext.7 shows that it was received
on 04.07.2011 at 6.00 a.m. from P.W.3 and direction was given
to P.W.3 along with the staff to detect the case and I.I.C, E.I.
and E.B., Berhampur has put his signature. The endorsement
has been marked as Ext.7/2 which has been proved by none else
than P.W.3. In Ext.7, it is mentioned that the details of
information has been entered in the information register i.e. C.1
but the information register has not been proved during trial.
Similarly, I.I.C, E.I. and E.B., Berhampur has not been examined
in the case to prove Ext.7. Even P.W.2 who stated to have
carried Ext.7 to I.I.C, E.I. and E.B. as per the version of P.W.3,
has not stated anything in that respect. However, nothing further
has been elicited in the cross-examination of P.W.3 to disbelieve
his evidence and even no suggestion is given by the learned
defence counsel that Ext.7 is a fabricated document. Though
P.W.3 admits that he had not noted the name of the person who
had informed him over telephone in his C.D., but since he was
required to maintain confidentiality in that respect, no fault can
be found with P.W.3. Therefore, the contention regarding
statutory infraction of the provision under section 42 of the
N.D.P.S Act is not acceptable.
Whether P.W.3 has followed the provision under section
57 of the N.D.P.S Act:
In the case of Sajan Abraham (supra), it is held
that section 57 of the N.D.P.S. Act is not mandatory in nature.
When substantial compliance has been made, it would not vitiate
the prosecution case.
In the case of Manoj Kumar Panigrahi (supra), the
Hon'ble Supreme Court held as follows:-
"12. Section 57 of the N.D.P.S. Act states that if
an officer makes any arrest or seizure under this
Act then he has to make a full report of all the
particulars of such arrest and seizure to his
immediate official superior within forty-eight
hours next after such arrest or seizure..... Even
though section 57 of the N.D.P.S. Act is held not
be mandatory but the official conducting search
and seizure cannot totally ignore such a
provision which is directory in nature as the
same has got a salutary purpose and if he
ignores such a provision then adverse inference
should be drawn against the prosecution."
P.W.3 has stated that on 05.07.2011 he submitted a
report containing the details of search, recovery and seizure. He
further stated that he had sent such detailed report to his
superior officer through Dak book. Though P.W.3 could not
recollect the name of the persons who carried the detailed report
for delivery or the time of exact dispatch but that would not
falsify the compliance of section 57 of the N.D.P.S. Act. In that
view of the matter, it cannot be said that P.W.3 has ignored the
provision under section 57 of the N.D.P.S. Act.
Whether the seal on seized contraband articles was
tampered with:
Law is well settled as held in the case of Herasha
Majhi (supra) that the prosecution has to prove that the
contraband articles produced before the Court were the very
articles which were seized and the entire path has to be proved
by adducing reliable, cogent, unimpeachable and trustworthy
evidence. Since the punishment is stringent in nature, any
deviation from it would create suspicion which would result in
giving benefit of doubt to the accused.
P.W.3 has stated that he sealed the air bags and also
the jerry basta by using paper slip with his own brass seal under
his signature and obtained signatures of the appellants and the
witnesses and thereafter, handed over the brass seal in the zima
of P.W.2. He proved the zimanama Ext.5/1. He further stated
that after preparation of the seizure list in presence of witnesses
and members of his party vide Ext.1/1, he had put a specimen
impression of the brass seal used for sealing the seized materials
on the seizure list and a copy of the seizure list was handed over
to each of the appellants and the appellants put their signatures
in token up the said receipt. He further stated that from the spot,
he directly came to the Court of Special Judge, Berhampur and
made a prayer for collection of samples from the air bags and
jerry bag for their onward transmission to DECTL, Berhampur at
Chatrapur and his prayer was allowed and S.D.J.M., Berhampur
collected the samples from each of the air bags and jerry basta
and those were properly sealed by him. He further stated that
P.W.2 received those sample packets and forwarding letter from
learned S.D.J.M., Berhampur for carrying those to the laboratory.
P.W.2 has also stated that the bags were paper
sealed and the brass seal of P.W.3 was put on the paper seal and
the brass seal used for sealing was given in his zima as per
zimanama Ext.5/1. P.W.2 produced the brass seal which he had
taken on zima in Court at the time of giving evidence and the
same has been marked as M.O.I.
In view of the evidence of two official witnesses, it
appears that the seized articles were sealed at the spot by using
paper slip and brass seal of P.W.3 was used for the said purpose
which was given to P.W.2 which he produced at the time of trial.
The seized articles were directly produced in the Court of learned
Special Judge, Berhampur on the very day and the order sheet
dated 04.07.2011 of the learned Special Judge also indicates
about the production of the accused along with forwarding
report, seizure list, memo of arrest, option given by the accused
persons, zimanama of the brass seal, spot map, mal challan,
statements of the appellants, statements of witnesses,
experience certificate of P.W.3, prayer for drawal of sample,
disclosure of grounds of arrest, training certificate of P.W.3,
drugs testing chart, original registration certificate of auto
rickshaw along with seized ganja. The learned Special Judge
considered the prayer of P.W.3 on the very day for drawal of
samples for necessary chemical analysis at Chemical Testing
Laboratory, Chatrapur and to keep the seized ganja in the Court
malkhana and the prayer is allowed and direction was given to
the learned S.D.J.M., Berhampur for drawing samples from the
seized ganja for sending the same for chemical analysis. The
Malkhana clerk was directed to receive the seized ganja to be
kept in Court malkhana as per the mal challan. The seized auto
rickshaw was directed to be kept with P.W.3 in safe custody until
further orders.
It further appears that on 04.07.2011, on perusal of
the order of the learned Special Judge, Berhampur and in
obedience of the said order, when P.W.3 produced the seized
property in four numbers of air bags and one jerry basta marked
as Sl. No.1 to 5 under his seal, the learned S.D.J.M. noticed that
the seized properties were properly sealed by P.W.3 and the
seals were intact. The seals were opened by P.W.3 in presence of
learned S.D.J.M., Berhampur and out of each seized properties
mentioned vide Sl. No.1 to 5, fifty grams each in two separate
packets (in total ten packets) were separately drawn as samples
and those sample packets were marked as Ext.A, A/1, B, B/1, C,
C/1, D, D/1, E and E/1 respectively and those were sealed under
the personal seal of the learned S.D.J.M. and the rest of the
seized properties contained in item No.1 to 5 were again
resealed under the personal seal of learned S.D.J.M. The broken
seals of I.O. were kept in a separate packet and it was also
sealed under the personal seal of learned S.D.J.M. The sealed
sample packets marked as Ext.A, B, C, D and E and a forwarding
report being kept in another packet which was also sealed under
the personal seal of the learned S.D.J.M. were handed over to
P.W.2 for its production before the Chemical Examiner. The rest
of the seized properties i.e. Sl. No.1 to 5, the sealed sample
packets Ext.A/1, B/1, C/1, D/1 and E/1 along with sealed packets
containing broken seal of the I.O. were handed over to P.W.3 to
give it to malkhana clerk of Sessions Court at Berhampur. The
part file prepared for drawal of samples was sent by the learned
S.D.J.M. to the learned Special Judge, Berhampur.
Learned Amicus Curiae argued that the brass seal
was given in the zima of P.W.2 under zimanama but the brass
seal was not produced by P.W.2 when the air bags and jerry
bags containing Ganja were produced for the first time for
drawing of sample to be sent for chemical analysis. It was
further argued that P.W.2 produced the envelope containing the
seal (M.O.I) only at the time when he came to give evidence but
it was not in a sealed condition.
P.W.3 stated that he had put the specimen
impression of the brass seal used for sealing the seized materials
on the seizure list marked as Ext.1. The seizure list was placed
before the learned Special Judge, Berhampur on the date of
seizure itself with the seized ganja directly from the spot when
the appellants were produced in Court. The learned S.D.J.M. in
the order sheet dated 04.07.2011 has specifically mentioned that
the seized articles were properly sealed by the Investigating
Officer and the seals were intact. In view of the aforesaid
materials on record, merely on account of non-production of
brass seal by P.W.2 on the date the seized articles were
produced for the first time in Court cannot be ground to hold that
seal on seized contraband articles was tampered with.
Whether any prejudice was caused to the appellants as
P.W.3 who conducted search and seizure also investigated
the case:
Learned counsel for the appellants contended that it
was unfair on the part of P.W.3 in conducting search and seizure
as well as investigation of the case and in submitting the
prosecution report on completion of investigation. According to
him, the prosecution has not come forward with any explanation
as to why any other empowered officer did not carry out the
investigation.
In the case of Mukesh Singh -Vrs.- State
(Narcotic Branch of Delhi) reported in (2020)10 Supreme
Court Cases 120, it is held that in a case where the informant
himself is the investigator, by that itself it cannot be said that
the investigation is vitiated on the ground of bias or the like
factor. The question of bias or prejudice would depend upon the
facts and circumstances of each case. Therefore, merely because
the informant is the investigator, by that itself the investigation
would not suffer the vice of unfairness or bias and therefore, on
the sole ground that the informant is the investigator, the
accused is not entitled to acquittal.
Nothing has been brought out in the cross-
examination and learned Amicus Curiae has failed to point out
any kind of bias or enmity on the part of the Investigating Officer
(P.W.3) with the appellants and whether any serious prejudice
has been caused to the appellants on account of investigation by
P.W.3 or that he conducted any kind of perfunctory investigation.
Therefore, this ground is not sustainable in the facts and
circumstances of the case.
The defence plea taken by the appellant Ratnakar
Swain that he was brought to the Excise Office in a vehicle where
his signatures were obtained in different documents is not
acceptable since from the evidence of P.W.3, it appears that from
the spot, he directly came to the Court of the Special Judge,
Berhampur.
12. In view of the foregoing discussions, I am of the
humble view that prosecution has successfully established the
case against the appellant Ratnakar Swain for commission of
offence under section 20(b)(ii)(C) of the N.D.P.S. Act and the
learned trial Court is quite justified in convicting the appellant for
the said offence. The awarded sentence is minimum for the
offence committed and therefore, the impugned judgment so far
as appellant Ratnakar Swain needs no interference.
Accordingly, CRLA No.580 of 2013 filed by appellant
Sibaram Swain is allowed. The appellant Sibaram Swain shall be
released from custody forthwith if his detention is not required in
any other case. CRLA No.44 of 2014 filed by appellant Ratnakar
Swain stands dismissed.
Before parting with the case, I would like to put on
record my appreciation to Mr. V. Narasingh, the learned Amicus
Curiae for rendering his valuable help and assistance in disposal
of CRLA No.44 of 2014 as well as the connected appeal. The
learned Amicus Curiae shall be entitled to his professional fees
which is fixed at Rs.5,000/- (rupees five thousand only).
Lower Court records with a copy of this judgment be
sent down to the learned trial Court forthwith for information and
necessary action.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 15th March 2021/Pravakar/Sisir/RKM
