Salim Khan vs State Of Odisha
2021 Latest Caselaw 11501 Ori

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                       CRLA No. 459 of 2008

        From the judgment and order dated 05.09.2008 passed by the
        Special Judge, Ganjam-Gajapati, Berhampur in 2(a) C.C. No.01
        of 2006(N).
                             -----------------------------

               Salim Khan                             ...........                      Appellant

                                                   -Versus-

               State of Odisha                        ...........                      Respondent

                                       JCRLA No. 42 Of 2009

               Janmajaya Bira                         .........                              Appellant

                                                   -Versus-

               State of Odisha                        .........                              Respondent


                      For Appellants:                     -          Mr. Pulakesh Mohanty
                                                                     Amicus Curiae


                      For Respondent:                     -          Mr. D.K. Pani
                                                                     Addl. Standing Counsel
                                           -----------------------------

        P R E S E N T:

                           THE HON'BLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 10.11.2021

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S.K. SAHOO, J. The appellant Salim Khan in CRLA No.459 of 2008

and the appellant Janmajaya Bira in JCRLA No.42 of 2009 faced // 2 //

trial in the Court of the learned Special Judge, Ganjam-Gajapati,

Berhampur in 2(a) C.C. No.01 of 2006 (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') on the

accusation that on 04.12.2006 at about 5.00 a.m., they were

found transporting 123 kgs. 500 grams of ganja in a Maruti Alto

car bearing registration no.OR-19B-6768 near Forest Check

Gate, Podamari in contravention of provisions of section 8(c) of

the N.D.P.S. Act.

The learned trial Court vide impugned judgment and

order dated 05.09.2008 found both the appellants guilty under

section 20(b)(ii)(C) of the N.D.P.S. Act 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) each, in

default, to undergo further rigorous imprisonment for a period of

one year each.

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 04.12.2006

in the early hours, when Sri Nalini Kumar Behera (P.W.3), who

// 3 //

was the S.I. of Excise, Intelligence and Enforcement Bureau,

Berhampur along with other staff were performing patrol duty

near Forest Check Gate of Podamari and taking search of

vehicles suspecting that contraband excisable articles might be

getting transported, they detected one Maruti Alto cement colour

car bearing registration no.OR-19B-6768 coming from

Digapahandi side and on seeing the vehicle near the Forest

Check Gate of Podamari, P.W.3 detained the vehicle and took

search of the same and found that the rear seat of the car had

been removed and in that space, eight polythene sacks

containing ganja have been kept. Those polythene sacks were

brought down from the car and were numbered as '1' to '8' and

on weighment of all the eight sacks, the net contents of ganja

came to 122 kgs. 800 grams. From each of the seized polythene

sacks, two samples weighing 50 grams each were drawn and it

was separately marked and after drawing samples, each of the

polythene sack was stitched and sealed separately by using

personal brass seal of P.W.3. The sample packets were also

sealed by using personal brass seal of P.W.3. The offending

vehicle Maruti Alto car was also seized and the personal brass

seal of P.W.3 was handed over in the zima of Harihar Behera

(P.W.2) by preparing zimanama (Ext.2). The appellants were

// 4 //

arrested and on the very day i.e. on 04.12.2006, they were

produced before the learned Sessions Judge -cum- Special

Judge, Berhampur along with the seizure lists, memo of arrest,

forwarding report and the seized articles and prayer was made

by P.W.3 before the Court to send the samples for chemical

analysis to the State Drugs Testing and Research Laboratory,

New Nandankanan Road, Bhubaneswar. The learned Special

Judge, Berhampur directed the learned S.D.J.M., Berhampur to

do the needful for sending the samples for chemical analysis. In

obedience to the order of the learned Special Judge, Berhampur,

P.W.3 produced eight sample packets and those were marked as

Exts.1/A to 8/A along with the forwarding letters for sending the

samples to the laboratory for chemical examination and report.

Learned S.D.J.M. pasted and sealed the sample packets with lac

seal of the Presiding Officer and a forwarding letter of the sample

was also kept in another packet and it was resealed. The sample

packets containing the seal of the Court were handed over to

P.W.3 to be dispatched to the State Drugs Testing and Research

Laboratory and P.W.3 personally proceeded to Bhubaneswar to

hand over the sample packets for chemical examination. P.W.3

made correspondence with the Registering Authority to ascertain

the ownership of the seized car and got the reply vide Ext.6 that

// 5 //

it stood in the name of one Sunil Kumar Nath of Railway Colony,

Talcher. The chemical examination report (Ext.4) indicated that

the eight samples which were marked as Exts.1/A to 8/A were

ganja/cannabis. On completion of investigation, finding prima

facie against the appellants, P.W.3 submitted prosecution report

against the appellants.

3. The appellants were charged under section

20(b)(ii)(C) of the N.D.P.S. Act for conscious possession of 123

kgs. 500 grams of ganja, which they refuted, 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 Ganeswar Pati was the A.S.I. of Excise

attached to the Office of Inspector of Excise and Excise

Intelligence and Enforcement Bureau, Berhampur. He stated

about the detaining of Maruti Alto vehicle near Podamari Forest

Check Gate and further stated about the presence of both the

appellants inside the vehicle. He further stated that the appellant

Salim Khan was the driver and not only the appellants confessed

to be carrying ganja in the vehicle and disclosed their names but

he also stated about the seizure of eight numbers of polythene

sacks filled with ganja from the car. He stated about the

// 6 //

weighment of ganja, collection of two representative samples of

50 grams from each of the packets and sealing of samples by

using personal brass seal of P.W.3 so also sealing of the bulk

ganja packets. He is a witness to the seizure list vide Ext.1. He

identified the sample packets in Court which were marked as

M.O.I to M.O.VIII and also the plastic sacks containing the bulk

ganja marked as M.O.IX to M.O.XVI.

P.W.2 Harihar Behera was the guard on duty in the

Forest Check Gate located at Podamari and he also stated about

the seizure of plastic sacks containing ganja from the car and

further stated about the presence of both the appellants in the

car. He also admitted his signature in the seizure list. However,

he denied to have taken the brass seal in his zima under

zimanama for which he was declared hostile by the prosecution

and cross-examined.

P.W.3 Nalini Kumar Behera was the S.I. of Excise,

Excise Intelligence and Enforcement Bureau, Berhampur, who

not only conducted search and seizure of contraband ganja from

the offending vehicle in which the appellants were found present

but also collected the samples from the packets of the ganja and

prepared the seizure list, arrested the accused persons,

forwarded them to Court and also took step for sending the

// 7 //

samples to the laboratory for chemical examination and on

completion of investigation, he submitted the prosecution report

against the appellants.

The prosecution exhibited seven documents. Ext.1 is

the seizure list, Ext.2 is the signature of P.W.2 in zimanama,

Ext.3 is the signature of P.W.2 on his statement recorded under

section 67 of the N.D.P.S. Act, Ext.4 is the chemical examination

report, Ext.5 is the letter of P.W.3 to Registering Authority,

Angul, Ext.6 is the reply letter of the R.T.O., Angul to P.W.3 and

Ext.7 is the forwarding letter of the S.D.J.M., Berhampur.

The representative sample packets of ganja drawn

from the plastic sacks were marked as M.O.I to M.O.VIII and the

plastic sacks containing bulk ganja were marked as M.O.IX to

M.O.XVI.

5. The defence plea of the appellant Salim Khan is that

he was the driver of the car and on the date of occurrence, he

along with the appellant Janmajaya Bira were moving in the car

when the Excise Officials detained them and that they had

already seized some bags and they assaulted them and obtained

their signatures on plain papers. It was specifically pleaded that

no ganja was recovered from the car.

// 8 //

So far as the appellant Janmajaya Bira is concerned,

it is his defence plea that he was going to Cuttack on that day to

meet his son, who was reading there and though he was

supposed to go by bus to Cuttack, on the way at Nahana, the

appellant Salim Khan gave him lift in the car and as such he was

in the car at the relevant point of time when at Podamari Forest

Check Gate, the car was detained by the Excise Officials and

their signatures were forcibly obtained by assaulting them. It is

pleaded that no ganja was recovered from his possession and he

has been falsely entangled in the case.

No witness was examined on behalf of the defence.

6. The learned trial Court after analyzing the ocular as

well as the documentary evidence on record came to hold that

P.W.2 corroborated the evidence of P.Ws.1 and 3 regarding

recovery of plastic sacks containing ganja and the presence of

the appellants in the vehicle from which eight plastic sacks

containing ganja were recovered by the Excise Officials and

weighed in their presence. It was further held that there is

nothing to disbelieve the evidence of P.Ws.1 to 3 as they had no

axe to grind against the appellants and moreover, the appellants

in their 313 Cr.P.C. statements have also stated about their

presence in the vehicle. Learned trial Court further held that

// 9 //

even though P.W.2 has been declared hostile, but his evidence

cannot be totally discarded as he has supported the prosecution

case to a major extent relating to search and seizure of

contraband ganja from the offending vehicle. It was further held

that in view of the mention in column no.4 of the chemical

examination report (Ext.4) that the seals were intact and

identical with the specimen seal given with the memo, the

contention of learned State Defence Counsel that there was

possibility of tampering with the sample packets as those were

retained by P.W.3 from 04.12.2006 till 08.12.2006 is not

acceptable. Learned trial Court further held that when the

sample packets were sealed by the learned S.D.J.M., Berhampur

by using his brass seal, merely because the brass seal of P.W.3

was not produced in Court, the same cannot be a ground to

discard the entire prosecution case which the prosecution has

otherwise established. Learned trial Court further held that non-

examination of a Gazetted Officer or observance of the

mandatory provisions of section 50 of the N.D.P.S. Act are not at

all attracted to the facts of the case and accordingly, held that

the prosecution has successfully established its case against the

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

// 10 //

7. Mr. Pulakesh Mohanty, learned counsel was engaged

as Amicus Curiae in both the criminal appeals. He was supplied

with paper book and given time to prepare the case. After going

through the case records, he placed the impugned judgment and

evidence of the witnesses. It is his contention that even though

independent witnesses were available, they were neither

examined nor even cited as witnesses to the search and seizure

in the prosecution report and all the witnesses examined by the

prosecution are official witnesses who are interested witnesses

and on their version, the learned trial Court should not have

convicted the appellants. It is further argued that the personal

brass seal of P.W.3 which was used for sealing the bulk ganja

packets and sample packets were not produced in Court at the

time of production of the seized articles for verification and

therefore, the possibility of tampering with the seized packets

before its production in Court cannot be ruled out. It is further

submitted that the witness, who had taken zima of the personal

brass seal being examined as P.W.2 has not supported the

prosecution case and was declared hostile. The sample packets

were obtained from the Court of learned S.D.J.M., Berhampur on

04.12.2006 with the seal of the Court but it was not produced

immediately before the chemical examiner and it was retained

// 11 //

for four days by P.W.3 which creates doubt about the conduct of

P.W.3. It is further submitted that since P.W.3 conducted search

and seizure, in the fairness of things, he should not have

investigated into the case and submitted the prosecution report.

P.W.3 stated that he submitted preliminary report before the

Inspector in-charge, E.I. & E.B, Berhampur but the said report

has not seen light of the day and the full report as per section 57

of the N.D.P.S. Act has also not been proved. It is further

submitted that since the vehicle in question is a private one,

non-compliance of section 42 of the N.D.P.S. Act, which is

mandatory in nature is not permissible. Learned counsel further

submitted that when the appellant Janmajaya Bira has taken a

specific stand that he was going to Cuttack to meet his son, who

was reading there and the appellant Salim Khan gave him lift in

the offending car on the way, the learned trial Court should have

discussed such plea on the basis of available materials on record

and given his finding thereon. He concluded his argument with

submission that it is a fit case where benefit of doubt should be

extended in favour of the appellants. He placed reliance on the

decision of the Hon'ble Supreme Court as well as this Court in

the cases of State of Uttar Pradesh -Vrs.- Ramesh Prasad

Misra and another reported in (1996) 10 Supreme Court

// 12 //

Cases 360, Reena Hazarika -Vrs.- State of Assam reported

in (2019) 13 Supreme Court Cases 289 and Prasanta

Kumar Behera -Vrs.- State of Orissa reported in (2016) 64

Orissa Criminal Reports 40.

Mr. D.K. Pani, learned Additional Standing Counsel

appearing for the State of Odisha, on the other hand, supported

the impugned judgment and contended that there was no prior

information with P.W.3 that the offending vehicle was carrying

contraband ganja and it was during routine check up on patrol

duty that the vehicle was detained and found to be carrying

ganja and as such there was no scope for compliance of section

42 of the N.D.P.S. Act rather it is a case where section 43 of the

N.D.P.S. Act is applicable. He further argued that P.W.3 tried to

call the local persons including the Sarpanch and Ward member

but nobody came forward to be witnesses to the search and

seizure and in such a scenario, examination of only official

witnesses to prove the prosecution case cannot be a ground to

discard the case. Learned counsel further submitted that when

on the very day of the search and seizure, the articles were

produced in Court under seal which was verified by the Court

and seal was found to be intact and thereafter, the Court seal

was put and the sample packets were handed over to P.W.3 and

// 13 //

he delivered the sample packets in the testing laboratory and the

chemical examination report indicates that the seals were intact

and it was identical to the specimen seal given in the memo,

therefore, question of tampering with the articles during its

retention with P.W.3 for four days cannot be accepted. Learned

counsel further submitted that even though the brass seal was

not produced by P.W.2 at the time of production of the seized

bulk ganja packets along with the sample packets in Court and

since the paper containing brass seal impression was produced

which was verified by the Court, it cannot be said that there was

any scope for tampering with the articles. Learned State counsel

further submitted that even though P.W.3 has not stated about

the submission of full report and preliminary report has also not

been marked as an exhibit, since provision under section 57 of

the N.D.P.S. Act is not mandatory one, in view of the available

materials on record, it can be said that the prosecution has

successfully established its case and therefore, both the appeals

should be dismissed. He placed reliance on the decision of the

Hon'ble Supreme Court in the cases of Mukesh Singh -Vrs.-

State (Narcotic Branch of Delhi) reported in (2020) 10

Supreme Court Cases 120 and Rajesh Dhiman -Vrs.- State

// 14 //

of Himachal Pradesh reported in (2020) 10 Supreme Court

Cases 740.

8. Adverting to the contentions raised by the learned

counsel for the respective parties, the following points are

required to be addressed:

(i) Effect of non-examination of independent

witnesses;

(ii) Whether version of official witnesses to be

discarded on the ground of their interestedness;

(iii) Effect of non-production of brass seal in Court;

(iv) Effect of evidence of hostile witness (P.W.2);

(v) Retention of sealed sample packets for four

days by P.W.3 before production in F.S.L.;

(vi) Excise Officer conducting search and seizure

becoming the investigating officer;

(vii) Non-compliance of the provision under section

57 of the N.D.P.S. Act;

(viii) Non-compliance of the provision under section

42 of the N.D.P.S. Act;

(ix) Whether defence plea taken by the appellants is

acceptable?

// 15 //

(i) Non-examination of independent witnesses:

Admittedly, independent witnesses have not been

examined in the case. Learned Amicus Curiae placed reliance in

the case of Prasanta Kumar Behera (supra), wherein it is held

as follows:-

"7. Law is well settled that the provisions of sections 100 and 165 of the Code of Criminal Procedure, 1973 which are not inconsistent with the provisions of the N.D.P.S. Act are applicable for effecting search and seizure under the N.D.P.S. Act.

Section 165 Cr.P.C. deals with search by an officer in charge of a police station or by a police officer making an investigation into any offence which he is authorized to investigate. Sub-section (4) of section 165 of the Code states that the provisions of the Code as to search-warrants and the general provisions as to searches contained in section 100 of Cr.P.C.

shall, so far as may be, apply to a search made under section 165 Cr.P.C. Sub-section (4) of section 100 of Cr.P.C. states that before making a search under Chapter-VII, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such

// 16 //

inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and the officer may issue an order in writing to such persons or any of them to be a witness to the search.

Even though sub-section (4) of section 100 Cr.P.C. states that such provision is applicable to Chapter-VIII but in view of sub- section (4) of section 165 of Cr.P.C., the procedure has to be followed in all cases of search by either the officer in charge of the police station or a police officer making an investigation into any offence which he is authorised to investigate. If any subordinate officer is entrusted by the officer in charge to carry out such search by an order in writing, then such subordinate officer has also to follow the procedure laid down under section 100 Cr.P.C. Even though section 100 Cr.P.C. states about the search of a closed place but in view of definition of 'place' as per section 2 (p) of Cr.P.C., it includes a house, building, tent and vessel.

xxx                             xxx                      xxx
      The timing of search and seizure, non-
availability    of    independent       and     respectable

witnesses of the locality and non-inclination of such persons even though available to become witnesses to the search and seizure are the

// 17 //

factors to be taken note of while assessing the non-compliance of sections 100 (4) and 165 (4) of Cr.P.C. If after making reasonable efforts, the police officer is not able to get public witnesses to associate with the raid or arrest of the accused, the arrest and the recovery made would not be necessarily vitiated."

In the case in hand, the Investigating Officer (P.W.3)

has stated in the cross-examination that though he tried to call

local persons including the Sarpanch and Ward member but

nobody came forward to become witnesses to the search and

seizure, however, he admitted that he has not mentioned about

that fact in his case diary. He further stated that there are many

shops including tea stalls and betel shops near Podamari Check

Gate. Though he called the shop keepers but none came forward

to be witnesses in the case. Similar statement has been made by

P.W.1, who has stated that the persons, who had their shops

near the Check Gate by the side of the road were requested by

them to come to the spot and to be witnesses to the search and

seizure but none came forward, however he stated that five to

seven independent persons were present in the locality at the

time of search of the vehicle in question but he did not know

their names. He further submitted that they had not gone to

// 18 //

village Podamari to procure the attendance of any independent

witness.

Therefore, from the evidence of the aforesaid two

witnesses, it is apparent that though there were shops including

tea stalls and betel stalls near Podamari Check Gate and some

persons were also present in the locality at the time of search of

the vehicle but they were not willing to be the witnesses to the

search and seizure in spite of request being made by the Excise

Officials. In such a factual scenario, in my humble view, non-

examination of independent witness of the locality cannot be a

ground to discard the prosecution evidence.

(ii) Whether version of official witnesses to be discarded on the ground of their interestedness:

Law is well settled that even though no independent

witnesses are examined in an N.D.P.S. Act case or on being

examined, they do not support the prosecution case, that cannot

be a ground to discard the prosecution case in toto. If the

statements of the official witnesses relating to the 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

// 19 //

officer is believable after taking due care and caution in

evaluating their evidence.

In the case of Herasha Majhi and others -Vrs.-

State of Odisha reported in 2020 (I) Orissa Law Reviews

39, it is held as follows:

"9.......Conviction can be based solely on the testimony of official witnesses; condition precedent is that the evidence of such witnesses must be reliable, trustworthy and must inspire confidence. There is absolute no command of law that the testimony of the police officials should always be treated with suspicion. Of course while scrutinizing 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

// 20 //

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, even though P.Ws.1, 2 and 3 are official

witnesses, their evidence cannot be discarded on the ground that

they are interested witnesses unless this Court finds that their

evidence to be unreliable and untrustworthy.

(iii) Effect of non-production of brass seal in Court:

In the case of Sumit Kumar Behera and another

-Vrs.- State of Odisha reported in 2019 (II) Orissa Law

Report 49, it is held that it is the requirement of law that when

the contraband articles are seized and sealed with the seal

impression then the brass seal has to be left in the zima of a

reliable person under zimanama and instruction is to be given to

such person to produce it before the Court for verification at the

time of production of articles.

// 21 //

In the case of Biswanath Patra -Vrs.- State of

Odisha reported in 2019 (I) Orissa Law Reviews 34, it is

held that handing over the brass seal to a reliable 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 the articles.

In the case of Bayamani Mandinga -Vrs.- State of

Odisha reported in 2016 (I) Orissa Law Reviews 831, it is

held that if the brass seal remains with the person who has

effected search and seizure, then chance of tampering cannot be

ruled out.

In the case in hand, P.W.3 has stated in his evidence

that he collected 50 grams of ganja twice from each polythene

sack as samples and kept them in separate packets by sealing

the same using his brass seal and after drawing the samples, the

polythene bags containing ganja were once again properly

stitched and sealed. He further stated that he sealed each of the

polythene bag containing ganja by paper seal after obtaining the

signatures of the appellants and witnesses Ganeswar Pati

(P.W.1) and Harihara Behera (P.W.2). He further stated that he

handed over his brass seal to P.W.2 and prepared the zimanama

// 22 //

(Ext.2). Nothing has been elicited in the cross-examination

except giving a suggestion to P.W.3 that without handing over

the brass seal to P.W.2, he had simply manufactured the

zimanama for the purpose of the case, to which P.W.3 has

denied.

P.W.2 has also stated that the plastic sacks

containing ganja were unloaded from the vehicle and those were

opened and weighed by the Excise Officials and ganja were

packed in separate container sacks and those were sealed and

then seizure list was prepared. He also identified the plastic

sacks containing ganja which were marked as material objects

and further stated that paper slips signed by the witnesses were

affixed on it.

P.W.1 has also stated that P.W.3 collected samples of

50 grams in two packets from each of the polythene packets and

it was kept in a paper envelope and P.W.3 used his personal

brass seal impression for sealing and he further stated that after

the formalities of search and seizure was over, P.W.3 gave his

personal brass seal used in zima of P.W.2. Nothing has been

elicited in the cross-examination to disbelieve this aspect.

Thus, from the evidence on record, it is apparent

that after the weighment of ganja was made, two sample

// 23 //

packets of 50 grams from each of the eight polythene packets

were taken and the sample packets was sealed by using paper

slips and personal brass seal impression of P.W.3 was put on it

and bulk ganja packets were also sealed by using personal brass

seal impression of P.W.3.

No doubt the brass seal was not produced in Court at

the time of production of seized articles and the sample packets

but it appears that all the seized articles and the sample packets

were produced on the very same day i.e. on 04.12.2006 and the

learned Sessions Judge -cum- Special Judge, Berhampur

directed the learned S.D.J.M., Berhampur to send the sample

packets to the State Drugs Testing and Research Laboratory,

Bhubaneswar and learned S.D.J.M., Berhampur has specifically

mentioned in its order dated 04.12.2006 that P.W.3 produced

eight sample packets having paper seal and lac seal on the

exhibits and that P.W.3 had drawn 50 grams of samples of ganja

in paper packets which were marked as Ext.1/A to 8/A.

Therefore, in the factual scenario, non-production of the brass

seal in Court for verification cannot be a factor to disbelieve the

prosecution case in absence of any clinching material on record

to show that there was any kind of tampering with the articles

after its seizure and particularly when the bulk ganja packets

// 24 //

and sample packets were sealed at the spot with the brass seal

impression of P.W.3 and those were produced in Court on the

very day.

(iv) Effect of evidence of hostile witness (P.W.2):

Though P.W.2 has supported the prosecution case to

a major extent but he did not support the prosecution case that

after sealing of bulk ganja packets and sample packets by using

personal brass seal of P.W.3, the brass seal was handed over to

him, for which he was declared hostile by the prosecution and

cross-examined. So far as the zimanama (Ext.2) is concerned,

though P.W.2 has admitted his signature on the zimanama, but

he stated that he signed it without knowing the contents at the

instance of Excise Officials. In the cross-examination by the

prosecution, he has stated that he was not given the brass seal

in his zima that was used to seal the bulk ganja in plastic sacks

though he stated that samples were collected from each of the

plastic sacks by the Excise Officials and those were kept in small

polythene packets. However, he stated that he had not seen the

sealing of the sample packets.

Ext.2, the zimanama of brass seal also shows that it

was handed over to P.W.2 in which the signature of P.W.2 is

appearing. In such a scenario, even though P.W.2 has not

// 25 //

supported the prosecution case in its entirety but in view of the

evidence of P.Ws.1 and 3 that the brass seal was handed over to

P.W.2 coupled with documentary evidence, I am of the humble

view that not only the brass seal impression was given after the

samples were collected and sealed but the same was handed

over to P.W.2.

In the case of Ramesh Prasad Misra (supra), it is

held that it is settled law that the evidence of a hostile witness

would not be totally rejected if spoken in favour of the

prosecution or accused, but it can be subjected to close scrutiny

and that portion of the evidence which is consistent with the

case of the prosecution or defence may be accepted.

(v) Retention of sealed sample packets for four days by

P.W.3 before production in F.S.L.:

Eight different sample packets marked as 1/A to 8/A

containing fifty grams each were pasted and sealed with lac seal

of the Presiding Officer and a forwarding letter of the said sample

packets was prepared and it was kept in another packet and the

same was again resealed and the seal packets were handed over

to P.W.3 to hand it over to the State Drugs Testing and Research

Laboratory, Nandankanan Road, Bhubaneswar. The chemical

examination report, which has been marked as Ext.4 indicates

// 26 //

that the seal were intact and identical with the specimen seal

given on the memo and on analysis of all the eight sample

packets, those were found to be ganja/cannabis on the basis of

the test performed.

Therefore, in view of the available materials on

record i.e. oral evidence as well as documentary evidence and

the manner in which it was handed over to P.W.3 by the learned

S.D.J.M., Berhampur and it was found by the chemical examiner,

I am of the humble view that there was no scope for tampering

with the seal impression or with the contents of the packets even

those were retained by P.W.3 from 04.12.2006 till 08.12.2006.

(vi) Excise Officer conducting search and seizure

becoming the investigating officer:

In the case of Mukesh Singh (supra), a five-Judge

Bench held that whether the investigation conducted by the

informant concerned was fair investigation or not is always to be

decided at the time of trial. The informant/investigator

concerned will be cited as a witness and he is always subject to

cross-examination. There may be cases in which even the case

of the prosecution is not solely based upon the deposition of the

informant/informant-cum-investigator but there may be some

independent witnesses and/or even the other police witnesses.

// 27 //

The testimony of police personnel will be treated in the same

manner as testimony of any other witness and there is no

principle of law that without corroboration by independent

witnesses, his testimony cannot be relied upon. The presumption

that a person acts honestly applies as much in favour of a police

officer as of other persons, and it is not judicial approach to

distrust and suspect him without good grounds therefor. It was

further held that in a case where the informant himself is the

investigator, by that itself 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

informant is the investigator, the accused is not entitled to

acquittal.

Therefore, though the contention of the learned

Amicus Curiae that since P.W.3 conducted search and seizure, in

the fairness of things, he should not have investigated into the

case and submitted the prosecution report has considerable

force, but all the same, in absence of any unfairness or bias on

// 28 //

the part of P.W.3 to implicate the appellants falsely, the

prosecution case cannot be discarded on that score.

(vii) Non-compliance of the provision under section 57 of

the N.D.P.S. Act:

Section 57 of the N.D.P.S. Act states that whenever

any person makes any arrest or seizure under this Act, he shall,

within forty eight hours next after such arrest or seizure, make a

full report of all the particulars of such arrest or seizure to his

immediate official superior.

In the case of Bahadur Singh -Vrs.- State of

Haryana reported in (2010) 4 Supreme Court Cases 445, it

is held that the provision under section 57 of the N.D.P.S. Act is

not mandatory and that substantial compliance would not vitiate

the prosecution case. In the case of Manoj Kumar Panigrahi

-Vrs.- State of Odisha reported in 2020 Criminal Law

Journal 730, it is held that 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.

// 29 //

In the case in hand, P.W.3 has stated that regarding

the action taken by him in search and seizure of contraband

articles from the appellants, he sent a preliminary report to the

Inspector in-charge , E.I. & E.B., Excise, Berhampur and this

particular preliminary report has not been proved during trial.

Similarly, nothing has been stated regarding compliance of

section 57 of the N.D.P.S. Act by making a full report of all the

particulars of such arrest or seizure to his immediate official

superior but since it is held not to be mandatory and the

prosecution case has been otherwise proved against the

appellants and no unfairness or bias on the part of P.W.3 has

been proved, I am of the humble view that non-proving the

preliminary report or making no statement regarding compliance

of section 57 of the N.D.P.S. Act ipso facto, in the factual

scenario cannot vitiate the trial and cannot be a ground for

acquitting the appellants.

(viii) Non-compliance of the provision under section 42 of

the N.D.P.S. Act:

In the case of Biswanath Patra (supra), it is held

as follows:

"8. Under section 42(1), if the empowered officer receives reliable information from any

// 30 //

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. 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."

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

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

held as follows:-

// 31 //

"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

// 32 //

substance in a public place where such possession appears to him to be unlawful."

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

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

it is held as follows:

"12......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.

// 33 //

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."

On perusal of the evidence on record, it is clear that

there was no prior information before the Excise officials that the

appellants were likely to come with contraband ganja in one

Maruti Alto cement colour car bearing registration no.OR-19B-

6768 nor P.W.3 had any reason to believe from personal

knowledge or information that the appellants were likely to be

found with contraband ganja in the said car. The evidence of

P.W.3 indicates that on 04.12.2006 at about 5 O' clock in the

morning, he was on patrolling duty with his staff near Forest

Check Gate of Podamari where searching of different vehicles

// 34 //

was going on apprehending that contraband excise articles might

be found of being transported and during such routine checking,

they found the offending vehicle with contraband ganja packets.

Similarly, P.W.1 has stated that he along with other excise

officials accompanied P.W.3 from their office to Podamari Check

Gate for routine checkup for the vehicles moving as excise

materials used to be transported in that road and after their

arrival there, they conducted routine checkup of different

vehicles coming towards Berhampur on that road and at about

5.00 a.m., they found the offending vehicle coming on that road.

P.W.2 has also stated in similar manner. Therefore, in such a

scenario, the question of compliance of section 42 of the

N.D.P.S. Act does not arise as during routine search, it was

found out that the offending vehicle was carrying contraband

ganja.

(ix) Whether defence plea taken by the appellants is

acceptable:

The appellant Janmajaya Bira though has taken a

plea that he was going to meet his son at Cuttack and on the

way, the appellant Salim Khan gave him lift in the car whereafter

the car was detained at Forest Check Gate of Podamari but no

evidence has been adduced in that respect. The appellant could

// 35 //

have examined himself as defence witness in view of the

provision under section 315 of Cr.P.C. Even the other appellant

Salim Khan has also not stated that he had given any lift to the

appellant Janmajaya Bira on the way rather he has stated that

both of them were proceeding in the car and the Excise officials,

who had already seized some packets assaulted them and

obtained their signatures forcibly on plain papers. When the

appellants were produced before the learned Sessions Judge

-cum- Special Judge, Berhampur, they made no complain of any

ill-treatment while they were in excise custody and the same has

been reflected in the order sheet dated 04.12.2006.

The learned trial Court has considered the defence

plea taken by the appellant Salim Khan and held his plea that

the Excise Officials had already seized some bags and after

assaulting them, obtained their signatures on plain papers

cannot be believed for a moment as nothing is there on record to

accept such a plea of the appellants.

The learned Amicus Curiae placed reliance in the

case of Reena Hazarika (supra), wherein it is held as follows:

"19. Section 313 Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a

// 36 //

statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under section 313(2) Cr.P.C. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under section 313(1)(b) Cr.P.C. the Court is dutybound under section 313(4) Cr.P.C. to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the Court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the Court in dispensation of justice to adequately consider the defence of the accused taken under section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.

// 37 //

20. Unfortunately neither the trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat reported in A.I.R. 1953 Supreme Court 468 observing as follows:

26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true...... then the burden on the other side becomes all the heavier because a reasonable and probable story

// 38 //

likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit...."

In the case of Rajesh Dhiman (supra), it is held

that when the alternative version projected by the accused

persons is vague and improbable, non-investigation of a defence

theory disclosed only at the advanced stage of trial could not

indicate bias on the part of the police.

Law is well settled that the prosecution has to prove

its case beyond all reasonable doubt whereas the defence can

prove its defence by preponderance of probabilities. Inference of

preponderance of probabilities can be drawn not only from the

materials brought on record by the parties but also by reference

to the circumstance upon which the accused relies. 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.

Even though the defence plea has been discarded

without any elaborate discussion by the learned trial Court, but it

seems the appellants have not adduced any cogent and reliable

// 39 //

evidence which would appear to be believable and has not

brought out anything from the evidence of the prosecution

witnesses by way of cross-examination and therefore, on the

basis of the plea taken in the accused statement by the

appellants, the prosecution case cannot be discarded.

9. In view of the foregoing discussions, when the

evidence of the official witnesses relating to search and seizure

of contraband ganja from the exclusive and conscious possession

of the appellants while transporting the same in a car is clinching

and trustworthy and that the seized bulk contraband ganja and

sample packets were sealed properly and produced immediately

in Court on the very day with the accused persons and after its

production, the sample packets were further sealed with the seal

of the Court, in view of the finding of the chemical examination

report (Ext.4), I am of the humble view that the prosecution has

successfully established its case beyond all reasonable doubt

against the appellants and I find no illegality or infirmity in the

impugned judgment and order of conviction. The sentence that

has been imposed on the appellants for their conviction under

section 20(b)(ii)(C) of the N.D.P.S. Act is the minimum sentence.

Therefore, there cannot be any interference with the same.

However, in view of the financial condition of the appellants as

// 40 //

appears from the case records, the default sentence for non-

payment of fine is reduced from rigorous imprisonment for a

period of one year each to rigorous imprisonment for three

months each.

Accordingly, both the criminal appeals being devoid

on merits, stand dismissed.

Lower Court records with a copy of this judgment be

sent down to the learned trial Court forthwith for information.

Before parting with the case, I would like to put on

record my appreciation to Mr. Pulakesh Mohanty, the learned

Amicus Curiae for rendering his valuable help and assistance

towards arriving at the decision above mentioned. The learned

Amicus Curiae shall be entitled to his professional fees which is

fixed at Rs.7,500/- (rupees seven thousand five hundred only).

.................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 10th November, 2021/RKMishra