Orissa High Court

Santanu Naik vs State Of Odisha on 2 February, 2023

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                       CRLA No. 174 of 2016

        From the judgment and order dated 12.01.2016 passed by the
        1st Addl. Special Judge, Sambalpur in T.R. Case No.30/08 of
        2011-2012.
                              ----------------------------

               Santanu Naik                           .........                                Appellant

                                                   -Versus-

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


                      For Appellant:                     -          Mr. Akhya Kumar Sahoo
                                                                    Advocate

                      For Respondent:                    -          Mr. Priyabrata Tripathy
                                                                    Addl. Standing Counsel
                                           ----------------------------
        P R E S E N T:

                       THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 02.02.2023

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S.K. SAHOO, J. The appellant Santanu Naik along with co-accused

Debarchan Mirdha and Susanta Munda faced trial in the Court of

learned 1st Addl. Sessions Judge, Sambalpur in T.R. Case

No.30/08 of 2011-2012 for the 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

20.10.2011 at about 9.00 a.m. on N.H.6 near Carryco Company, // 2 //

Baraipali, in contravention of the provision under section 8 of the

N.D.P.S. Act, they were illegally transporting cannabis (Ganja)

weighing about 391 Kgs. 105 grams in a MAX Pick-up van

bearing Regd. No. OR-05D-9911.

The learned trial Court vide impugned judgment and

order dated 12.01.2016 though acquitted co-accused Debarchan

Mirdha and Susanta Munda of the offence charged but found the

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

and sentenced him to undergo rigorous imprisonment for a

period of twelve years and to pay a fine of Rs.1,00,000/- (rupees

one lakh), in default, to undergo further rigorous imprisonment

for period of one year.

2. The prosecution case, as per the first information

report (Ext.28), in short, is that the informant Suresh Chandra

Sahoo (P.W.7), S.I. of Police, Ainthapali police station on the

basis of command certificate no.669195 dated 20.10.2011 along

with other police officials of Ainthapali police station left the

police station to verify the information regarding transportation

of ganja in a vehicle bearing registration no.CG-05D-9911 as

recorded vide S.D.E. No.507 dated 20.10.2011 at about 9.00

a.m. They detained the said vehicle on N.H.6 near Carryco

Company in presence of the police staff and found one was in

the driver's seat. On being asked, the driver of the vehicle

// 3 //

disclosed his name as Santanu Naik (appellant). The informant

(P.W.7) came to believe from the strong smell that was coming

out from the vehicle that the appellant was in possession of

contraband ganja and accordingly, he intimated the fact to the

Inspector in-charge of Ainthapali police station. P.W.7 served

notice under section 50 of the N.D.P.S. Act about the right of the

accused to be searched by a Gazetted Officer or Magistrate and

when the appellant gave his choice to be searched by a Gazetted

Officer in writing, P.W.7 sent requisition to the S.D.M.,

Sambalpur through I.I.C., Ainthapali police station to remain

present during search and seizure. The Executive Magistrate

arrived at the spot at 10.00 a.m. and he gave his identity to the

appellant and in presence of the Executive Magistrate, the

personal search of the appellant was taken but nothing

incriminating was found from his possession and when the

vehicle was searched, one Samsung Mobile hand set and cash of

Rs.2,500/- were recovered. With the help of labourers, all the

plantains were unloaded and eighteen bags wrapped with black

colour polythene tied with jute rope were found below the

plantains. P.W.7 opened the polythene covers from all the bags

and found fertilizer bags and inside each fertilizer bag, twenty to

twenty five small packets of ganja wrapped with two numbers of

polythene were found. On weighment, the total quantity of ganja

// 4 //

came to 391 Kgs. 105 grams. P.W.7 collected samples of ganja,

kept the bulk ganja in the bags and samples of ganja in packets

and sealed the same by using his personal brass seal. The brass

seal was handed over in the zima of P.W.9 Susanta Pradhan by

executing zimanama. On demand, the driver of the vehicle could

not produce any license or authority for possession and

transportation of ganja by him. The driver voluntarily confessed

that one Papana @ Pramod Sahu of Landimal under Rairakhol

police station is the owner of the vehicle who had also procured

ganja and he was transporting the ganja from Landimal to

Bilaspur. The specimen of the brass seal was taken in a plain

paper on which the signatures of the witnesses, appellant were

taken and since the appellant could not produce either any

authority or any license in support of such possession of

contraband ganja, those were seized and a seizure list was

prepared at the spot and the witnesses and the appellant signed

the seizure list. Since the contraband ganja of commercial

quantity were seized from the exclusive and conscious

possession of the appellant, he was arrested after being

explained the grounds of arrest and brought to the police station.

After returning to the police station, P.W.7 lodged the first

information report before the Inspector in-charge of Ainthapali

police station.

// 5 //

On the basis of such first information report,

Ainthapali P.S. Case No.230 dated 20.10.2011 was registered

under sections 20(b)(ii)(C) of the N.D.P.S. Act by P.W.18, the

Inspector in-charge of Ainthapali police station who also took up

investigation of the case.

3. During course of investigation, the I.O. (P.W.18)

visited spot, examined witnesses and the appellant and recorded

their statements. During investigation, P.W.18 came to know

that the accused Papuna @ Pramod Sahu, Debarchan Mirdha,

Sushanta Munda, Ananta Kumar Sariyan are the organizers of

trafficking narcotic drugs i.e., ganja from Rairakhol side to

Bilaspur and the appellant was the carrier for trafficking of the

said ganja. On 20.10.2011, P.W.18 submitted a detail report to

the S.P., Sambalpur. The I.O. forwarded appellant to the Court

on 21.10.2011 along with seizure list and other documents like

zimanama, weighment chart and statements of witnesses etc.

and prayer was made by the I.O. to send the sample exhibits

nos.1 to 18 for chemical examination. On the orders of learned

Special Judge, Sambalpur, the learned S.D.J.M., Sambalpur sent

samples of ganja to the R.F.S.L., Sambalpur for chemical

examination and opinion. The Chemical Examination Report was

also received which proved sample exhibits were ganja. The I.O.

conducted raid in the houses of Debarchan Mirdha, Pramod Sahu

// 6 //

and other accused. On 07.11.2011 accused Debarchan Mirdha

and Sushanta Munda were arrested in Rairakhol P.S. Case

No.117 of 2011 and were forwarded to Court. The I.O. examined

accused Debarchan Mirdha and Sushanta Munda and submitted

remand report against them on 06.12.2011. The I.O. also seized

one Indigo Car bearing Regd. No.OR-15M-2244 which was used

for piloting the MAX pick-up van bearing Regd. No.CG-05D-9911

from the I.I.C., Rairakhol police station who seized the said

Indigo Car in Rairakhol P.S. Case No.117 of 2011. The I.O. also

seized the seizure list of Indigo car and left the seizure list in

zima. The I.O. issued notice under section 57 of the N.D.P.S. Act

to Anta Kumar Sariyan of Bilaspur but he did not turn up for

examination nor he came to receive his vehicle. The rented

house of Anta Kumar Sariyan was raided but it was found locked.

The investigation was supervised by the S.D.P.O., Sadar,

Sambalpur. The I.O. after receipt of the order from the S.P.,

Sambalpur submitted charge sheet under section 20(b)(ii)(C) of

the N.D.P.S. Act against the appellant so also accused

Debarchan Mirdha, Susanta Munda, Papuna @ Pramod Kumar

Sahu and Ant Kumar Sariya as absconder.

4. The appellant along with two other co-accused were

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

the appellant pleaded not guilty and claimed to be tried.

// 7 //

5. During course of trial, in order to prove its case, the

prosecution examined as many as eighteen witnesses.

P.W.1 Hari Dangi, P.W.2 Bitha Sahani, P.W.3 Nanda

@ Janmanjaya Haripal, P.W.4 Damu Sahani, P.W.5 Natabarlal

Agrawal, P.W.9 Sushanta Pradhan and P.W.10 Mangul @ Sushil

Kumar Choudhury are the independent witnesses who did not

support the prosecution case for which they were declared

hostile.

P.W.7 Sri Suresh Chandra Sahu who was the S.I. of

Police attached to Ainthapali police station and the informant in

the case, stated about the I.I.C. (P.W.18) receiving reliable

information about illegal transportation of huge quantity of ganja

in a MAX Pick-up van bearing registration no.CG-05D-9911 and

direction given to him as well as other police officials to verify

the information. He further stated about the detention of the car,

presence of the appellant inside the van and recovery of ganja in

eighteen bags and its seizure.

P.W.8 Parikhit Bhoi was the Constable attached to

Ainthapali out post and he accompanied P.W.7 to the spot. He

stated about the recovery of contraband ganja from the

possession of the appellant.

P.W.11 Chitaranjan Badapanda was the A.S.I. of

Police attached to Ainthapali police station and he accompanied

// 8 //

P.W.7 to the spot. He stated that during M.V. Checking, they

found one pick-up van loaded with bananas and the vehicle was

proceeding towards Bargarh side and under the bananas, in the

said vehicle, there were black polythene containers containing

ganja which was seized and two persons were in the vehicle. He

was declared hostile by the prosecution.

P.W.12 Sanjaya Behera did not support the

prosecution case so also P.W.13 Judhistir @ Juber Naik who also

did not support the prosecution case for which he was declared

hostile.

P.W.14 Lalit Kumar Sharma, who was the

photographer of Daily "The Samaj", took photographs of the

vehicle and the bundles recovered from the vehicle and proved

the same vide Exts.29 to 35.

P.W.15 Tuntun Sahani stated to have unloaded

banana and eighteen bags from a pick-up van.

P.W.16 Abhaya Kumar Das was the Asst. driver

attached to Ainthapali police station and he stated that on

20.10.2011 they were patrolling in Ainthapali area with P.W.7

and the I.I.C. of Ainthapali police station informed them about

transportation of ganja concealed under banana loaded in a pick-

up van and near Nandu Hotel, the vehicle was detained. The

appellant was driving the pick-up van and after unloading

// 9 //

banana, eighteen bags of ganja were found and it was weighed.

He further stated about seizure of the Car Diary vide seizure list

Ext.36.

P.W.17 Sarat Chandra Dwivedi was the A.S.I. of

Police attached to Ainthapali police station and he accompanied

P.W.7 to the spot. He stated that while they were patrolling in

between Bareipali and Ainthapali, near Carryco office, they got

information about transportation of ganja in a pick-up van and

they detained the pick-up van and in the said vehicle, eighteen

bags of ganja were recovered. The ganja bags were kept under

the loaded bananas. P.W.7 seized the ganja at the spot in

presence of the Magistrate.

P.W.18 Prasant Kumar Patnaik was the Inspector in-

charge of Balangir Town Police Station who is also the

Investigating Officer in the case.

The prosecution exhibited fifty seven documents.

Exts.1/1 is the money receipt, Exts.2/1 and 25 to 27 are the

money receipts, Exts.3/2, 24 and Exts.41 to 43, 47, 55 and 57

are the zimanama, Exts.4/1 and 35, 36, 42, 44, 46, 49, 54 and

56 are the seizure lists, Exts.5/1 to 22/1 are the weighment

charts, Ext.23 is the consent of the appellant given on the notice

under section 50 of N.D.P.S. Act, Ext.28 is the written report,

Exts.29 to 33 are the photographs, Ext.34 is the Bill, Ext.37 is

// 10 //

the Malkhana Register, Ext.38 is the Rough Sketch Map, Ext.39

is the copy of detail report, Ext.40 is the true copy of forwarding

report of S.D.J.M., Sambalpur, Ext.45 is the command

certificate, Ext.48 is the verification report of RIA, Bilaspur,

Ext.50 is the true copy of seizure list, Ext. 51 is the Chemical

Examination Report, Ext.52 is the call detail report, Ext.53 is the

Registration certificate.

The prosecution also proved six material objects.

M.Os.I to III are the seized ganja packets, M.O.V to VII are the

bulk of ganja.

6. The defence plea of the appellant was one of denial.

7. The learned trial Court after analysing the oral as

well as documentary evidence on record has been pleased to

hold that from the evidence of the witnesses, it is found that

appellant was caught while transporting 391 Kgs. 105 grams of

ganja in a white colour MAX pick-up van bearing Regd. No.CG-

05D-9911 and there is no evidence that accused Debarchan

Mirdha and Susanta Munda were transporting the said ganja.

The learned trial Court further held that the non-examination of

the Executive Magistrate in this case will not render prosecution

case vitiated and the prosecution has proved through the

evidence of S.I. Suresh Chandra Sahu (P.W.7) and other official

witnesses regarding transportation of ganja by the appellant.

// 11 //

The learned trial Court further held that there is no contravention

of compliance of section 42 of the N.D.P.S. Act in the case.

Discussing on the chemical examination report which was

marked as Ext.51, the learned trial Court came to the conclusion

that the samples of the seized contraband properties sent were

proved to be ganja and accordingly, appellant was held guilty of

the offence charged.

8. Mr. Akhya Kumar Sahoo, learned counsel appearing

for the appellant without challenging the order of conviction of

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

contended that while imposing substantive sentence of rigorous

imprisonment for twelve years for such offence, the learned trial

Court has not taken into account the provision under section 32-

B of the N.D.P.S. Act. Reliance was placed in the case of

Sambhulal Tibrewal -Vrs.- State of Orissa reported in

(2017) 68 Orissa Criminal Reports 584.

Mr. Priyabrata Tripathy, learned Additional Standing

Counsel for the State, on the other hand, supported the

impugned judgment and contended that in view of the huge

quantity of contraband ganja seized from the possession of the

appellant, the sentence imposed was quite justified.

9. In the case of Sambhulal Tibrewal (supra), I had

the occasion to deal with an identical point raised in connection

// 12 //

with section 32-B of the N.D.P.S. Act, wherein it is held as

follows:

"11. Coming to the sentence imposed by the learned trial Court, I find that after convicting the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act, the learned trial Court has observed that the appellant had kept huge quantity of ganja even inside a secret place in Puja Ghar which he utilized for transaction and therefore, the Court was of the view that the appellant is not entitled to be leniently dealt with. It is further observed that dealing such huge quantity of ganja is an offence more heinous than the offence of homicide. With these reasons, the learned trial Court has imposed substantive sentence of R.I. for 15 years and also directed to the appellant to pay a fine of Rs.1,00,000/-, (rupees one lakh only), in default, to undergo further R.I. for six months.

Section 20(b)(ii)(C) of the N.D.P.S. Act prescribes, inter alia, that whoever, in contravention of any provision of the Act or any rule or order made or condition of license granted thereunder possesses cannabis which involves commercial quantity, he shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one

// 13 //

lakh rupees and which may extend to two lakh rupees. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 32-B of the N.D.P.S. Act deals with factors to be taken into account for imposing higher than the minimum punishment which reads as follows:-

"32-B. Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:-

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; and

// 14 //

(d) the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities;

(e) the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence."

On a bare reading of this section, it is apparent that ordinarily minimum term of imprisonment or fine has to be imposed where it has been so prescribed but if the case comes under any of the clauses i.e. (a), (b), (c), (d),

(e) or (f) of section 32-B or any other factors as it may deem fit then the Court may award more punishment than the minimum. On going through the reasons assigned by the learned trial Court in the impugned judgment, it is clear that none of reasons falls within the category of the clauses (a), (b), (c), (d), (e) or (f). The reasons assigned were not sufficient enough to award more punishment than the minimum. It is

// 15 //

clear that while imposing a substantive sentence of R.I. for fifteen years, the learned trial Court has not kept in view the provision under section 32-B of the N.D.P.S. Act which was inserted in the N.D.P.S. Act w.e.f. 02.10.2001. The occurrence in this case took place on 11.06.2002 and therefore, at the time of imposing sentence, it was the duty of the learned trial Court to take into account the provision under section 32-B of the N.D.P.S. Act. It is the well settled principle of law that substantive provision unless specifically provided for otherwise intended by the Parliament should be held to have a prospective operation. One of the facets of rule of law is also that all statutes should be presumed to have a prospective operation only."

In view of the provisions as enumerated under the

clauses (a), (b), (c), (d), (e) and (f) of section 32-B of the

N.D.P.S. Act and looking at the reasons given by the learned trial

Court in imposing a sentence of rigorous imprisonment for

twelve years, I am of the humble view that the learned Court

has not at all kept such provision in mind while imposing the

sentence and therefore, the punishment higher than the

minimum punishment imposed by the learned trial Court cannot

be sustained in the eye of law.

10. Accordingly, the Criminal Appeal is dismissed subject

to modification in the sentence. The substantive sentence

// 16 //