Laxmi Charan Meher vs State Of Odisha
2023 Latest Caselaw 2176 Ori

                    IN THE HIGH COURT OF ORISSA, CUTTACK

                                      CRLA No. 428 of 2016

       From the judgment and order dated 28.03.2016 passed by the
       2nd Additional Sessions Judge -cum- Judge (Special Court),
       Sambalpur in T.R. Case No.35/52 of 2012-15.
                             -----------------------------

              Laxmi Charan Meher                       ...........                    Appellant

                                                     -Versus-

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


                     For Appellant:                     -        Mr. Akshaya Kumar Sahoo



                     For Respondent:                    -        Mr. Manoranjan Mishra
                                                                 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: 16.03.2023

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S.K. SAHOO, J. The appellant Laxmi Charan Meher along with co-

accused Panchanan Pradhan faced trial in the Court of the

learned 2nd Additional Sessions Judge -cum- Judge (Special

Court), Sambalpur in T.R. Case No.35/52 of 2012-15 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 15.05.2012 at about 2.15 p.m. at village // 2 //

Khandahota under the jurisdiction of Rairakhol police station in

the district of Sambalpur, they were found illegally transporting

ganja weighing about 37 Kgs. which was of commercial quantity

in a red colour Passion Plus motor cycle bearing regd. No.OR-15-

L-7634 in contravention of the provision under section 8 of the

N.D.P.S. Act.

The learned trial Court vide impugned judgment and

order dated 28.03.2016 has been pleased to acquit the co-

accused Panchanan Pradhan of the charge, however found the

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

and sentenced him to undergo R.I. for a period of ten years and

to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to

undergo R.I. for a further period of two years.

2. The prosecution case, as reveals from the

prosecution report in a nutshell is that while Debasis Patel

(P.W.6), S.I. of Excise, E.I. & E.B., Sambalpur along with other

excise officials were performing patrolling duty at village

Khandahota road on 15.05.2012 at about 2.15 p.m., P.W.6

found one person coming in a red colour Passion Plus motor

cycle bearing regd. No.OR-15-L-7634. On suspicion, P.W.6

detained him and came to know that he is the appellant and

since the appellant was keeping a plastic gunny sack at the back

// 3 //

side of the motor cycle from which smell of ganja (cannabis) was

coming, P.W.6 called the witnesses, namely, Kumar Pradhan

(P.W.2), Jogeswar Pradhan (P.W.3) and thereafter he gave

option to the appellant to be searched either by Magistrate or by

himself to which the appellant gave his option vide Ext.9 to be

searched by P.W.6. P.W.6 then gave his personal search and

ganja (cannabis) was recovered from the plastic bag which was

tested by P.W.6 by rubbing it on his palm and burning on fire, as

a result, he came to know that the article was nothing but ganja

(cannabis) on the basis of his nine years of departmental

experience. After conducting the test, the ganja (cannabis) was

weighed and it came to 37 kgs. and the plastic bag came to 300

grams. Two sample packets were prepared by P.W.6 and each

packet contained 50 grams of ganja and the rest ganja of 36.900

grams were kept in the plastic bag and both the bulk quantity of

ganja as well as the sample packets were sealed and the

signature of the appellant and witnesses were taken on the

seized articles. P.W.6 seized the ganja (cannabis) along with the

red colour Passion Plus motor cycle. The plastic bag containing

bulk quantity of ganja was marked as Ext.A and the sample

packets were marked as Ext.A/1 and Ext.A/2. The brass seal of

P.W.6 which was used for sealing the packets was handed over

// 4 //

to Jogeswar Pradhan (P.W.3) after preparing zimanama marked

as Ext.2/1. Thereafter he prepared the seizure list and the copy

of the same was provided to the appellant and his signature was

taken on the seizure list. P.W.6 prepared the spot map, recorded

the statement of the appellant vide Ext.10 in which the appellant

confessed that he was doing ganja business along with co-

accused Panchanan Pradhan from whom he had procured the

ganja and he was staying in a house adjacent to the house of co-

accused Panchanan Padhan. P.W.6 examined the witnesses and

recorded their statements and issued requisition to the Inspector

in-charge of Town police station, Sambalpur to keep the

contraband articles in police malkhana. The contraband articles

marked as Ext.A, Ext.A/1 & Ext.A/2 and the motorcycle were

kept in the Town police station malkhana by making necessary

entry in the malkhana register. On the next day, i.e. on

16.05.2012, P.W.6 received the contraband articles, forwarded

the appellant to the Court of learned Sessions Judge, Sambalpur

and produced the seizure list, disclosure of ground of arrest,

brass seal, zimanama etc. and made prayer to send the sample

ganja packets marked as Ext.A/1 and Ext.A/2 for its chemical

examination and opinion and to direct Nazir to receive the seized

articles vide Mal challan. The prayer of the I.O. was allowed and

// 5 //

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

ganja packets (marked as Ext.A/1 and Ext.A/2) to D.E.C.T.L,

Sambalpur for examination. P.W.6 himself produced the sealed

packets before the chemical examiner. He also obtained the

instruction from the R.T.O., Sambalpur that the seized

motorcycle stood in the name of the appellant. He received the

chemical examination report vide Ext.16 wherein opinion has

been given that the seized materials were ganja (cannabis). In

spite of his several attempts, P.W.6 could not arrest the co-

accused Panchanan Pradhan and accordingly, he submitted the

Prosecution Report against the appellant and the co-accused

Panchanan Pradhan for commission of offence under section

20(b)(ii)(C) of the N.D.P.S. Act along his experience certificate

and training pass certificate respectively. Subsequently, the co-

accused Panchanan Pradhan was arrested and taken into custody

and he also faced trial along with the appellant in the Court of

learned 2nd Addl. Sessions Judge -cum- Special Judge, (Special

Court), Sambalpur.

3. The appellant along with co-accused Panchanan

Pradhan was charged under section 20(b)(ii)(C) of the N.D.P.S.

Act to which they refuted, pleaded not guilty and claimed to be

tried.

// 6 //

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

the prosecution examined six witnesses.

P.W.1 Girija Shankar Mohanty was the Excise

Constable attached to E.I. & E.B. Division, Sambalpur and was

one of the members of the patrolling party and he stated about

the seizure of the contraband ganja along with the motor cycle

from the possession of the appellant. He is a witness to the

handing over of the brass seal to one Jogeswar Pradhan (P.W.3)

by executing zimanama vide Ext.2/1, arrest memo and the

sketch map.

P.W.2 Kumar Pradhan, P.W.3 Jogeswar Pradhan and

P.W.4 Chandramani Sahoo did not support the prosecution case

for which they were declared hostile.

P.W.5 Ramesh Kumar Pradhan was the S.I. of Police

Town police station, Sambalpur and he stated that on the

request of P.W.6 and as per the direction of the Inspector in-

charge of Sambalpur Town police station, he kept one plastic jari

bag containing ganja, two sealed sample packets each containing

50 grams of ganja marked Ext.A/1 and A/2 and one Hero Honda

motor cycle bearing No.OR-15L-7634 in the P.S. malkhana vide

Town P.S. Malkhana entry no.18/2012. He is a witness to the

prayer made by the S.I. of Excise as per Ext.8.

// 7 //

P.W.6 Debasis Patel, was the S.I. of Excise, E.I. &

E.B. Division, Sambalpur, who conducted search and seizure and

he is also the Investigating Officer of the case, who on

completion of investigation, submitted Prosecution Report.

The prosecution exhibited seventeen documents.

Ext.2/1 is the zimanama, Ext.3 is the seizure list, Ext.6 is the

spot map, Ext.7/1 is the statement of P.W.3, Ext.8 is the

requisition of the I.O. to the I.I.C., Town police station,

Sambalpur to keep the seized articles, Ext.9 is the option letter,

Ext.10 is the statement of the appellant, Ext.11 is the statement

of P.W.2, Ext.12 is the malchalan, Ext.13 is the

acknowledgment, Ext.14 is the forwarding letter, Ext.15 is the

registration details of the seized motor cycle furnished by the

R.T.O., Sambalpur, Ext.16 is the C.E. report and Ext.17 is the

statement of Chandramani Sahu.

No material objects were proved in evidence on

behalf of the prosecution.

5. The defence plea of the appellant was one of

complete denial.

6. The learned trial Court vide impingement judgment

and order dated 28.03.2016 has been pleased to hold that the

seized ganja was recovered from the exclusive possession of the

// 8 //

appellant while he was transporting the same in a plastic bag in

the motor cycle in question and further held that the seized bulk

ganja and the sample packets along with the motor cycle

belonging to the appellant were kept in Sambalpur Town P.S.

malkhana till its production in the Court vide Ext.8, the

mandatory provisions as per section 52(3) and section 55 of the

N.D.P.S. Act have been complied with and thereby held the

appellant guilty of the offence charged while acquitting the co-

accused Panchanan Pradhan.

7. Mr. Akshya Kumar Sahoo, learned counsel for the

appellant contended that the charge is defective and contrary to

the prosecution case. P.W.6 is the officer who not only received

reliable information but also conducted search and seizure and

he is the investigating officer of the case and therefore, he is a

highly interested witness and the appellant has been seriously

prejudiced on account of the investigation being conducted by

such an officer. Learned counsel further submitted that there has

been non-compliance of the mandatory provision of section 50 of

the N.D.P.S. Act for which the conviction of the appellant is not

sustainable in the eye of law. He argued that since the place of

seizure was at village Khandahota under the jurisdiction of

Rairakhol police station, after seizure of the articles, it should

// 9 //

have been produced before the Inspector in-charge of Rairakhol

police station which was the nearest police station so that he

would have taken charge of the articles before being produced in

Court on the next day. Learned counsel further argued that the

articles were produced at Sambalpur Town Police Station which

is at a distance of 67 kms. away from the place of seizure.

Learned counsel further submitted that P.W.5, the S.I. of police,

Town police station, Sambalpur though stated that as per the

direction of the Inspector in-charge, Town police station,

Sambalpur on the requisition submitted by P.W.6, he kept the

seized ganja in sealed packets i.e. one plastic jari bag containing

37 Kgs. of ganja, two sealed sample packets each containing 50

grams of ganja marked as Ext.A/1 and Ext.A/2 and one Hero

Honda motorcycle bearing regd. No.OR-15-L-7634 after making

necessary entry in the malkhana register but neither the

malkhana register nor its copy was produced or proved during

trial. He further submitted that there is no evidence that any seal

of the officer who received the seized contraband articles at

Town police station, Sambalpur or the officer in-charge was

given which is one of the requirements of the section 55 of the

N.D.P.S. Act. It is further submitted that though the brass seal

was produced in Court on the date the appellant was produced

// 10 //

but there is no evidence that the seal impression which was

available in the seized articles i.e. bulk quantity of ganja marked

as Ext.A and sample packets marked as Ext.A/1 and Ext.A/2

were compared with the brass seal and even the brass seal was

not produced and marked as M.O. during trial. The seized

contraband articles were also not produced during trial and

therefore, it is a fit case where benefit of doubt should be

extended in favour of the appellant. Learned counsel for

appellant placed reliance on the cases of Santosh Patra &

others -Vrs.- State of Odisha reported in 2015 (I) ILR-CUT

974, Than Kunwar -Vrs.- State of Haryana reported in

(2020) 5 Supreme Court Cases 260 and Ashok @ Dangra

Jaiswal -Vrs.- State of M.P. reported in A.I.R. 2011 S.C.

1335.

Mr. Manoranjan Mishra, learned Additional Standing

Counsel, on the other hand, supported the impugned judgment

and argued that when the appellant was carrying the bag

containing ganja in the motorcycle, compliance of section 50 of

the N.D.P.S. Act was not required. He further submitted that

from the evidence of the official witness (P.W.6), it appears that

option was given to the appellant in writing whether he wanted

to be searched by Magistrate or by P.W.6. The said writing

// 11 //

option has been marked as Ext.9. Learned counsel further

submitted that section 55 of the N.D.P.S. Act is not the

mandatory provision and when the evidence of P.W.5 indicates

that the seized articles i.e. one plastic jerry bag along with two

sealed sample packets, each containing 50 grams of ganja were

produced by P.W.6 on 15.05.2012 at about 10.00 p.m. and it

was kept in P.S. malkhana as per the direction of Inspector in-

charge after making necessary entry in the P.S. malkhana

register vide entry no.18/2012 and the evidence of P.W.5 has

not been shaken and therefore, the safe custody of the seized

articles before its production in Court cannot be doubted.

Learned counsel further submitted that the sample packets along

with the bulk quantity of ganja were produced in Court and

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

chemical examination and the other seized articles to be kept in

the Court malkhana and accordingly, order was passed and the

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

packets marked as Ext.A/1 and Ext.A/2 for chemical examination

and the chemical examination report marked as Ext.16 indicates

that on being tested, both the sample packets were found to be

ganja (cannabis). He argued that there is no defect in charge

and merely because P.W.6 being the officer who detected the

// 12 //

crime and conducted search and seizure also investigated the

case, it cannot be said that the appellant was prejudiced and

therefore, no fault can be found with the impugned judgment

passed by the learned trial Court and the appeal should be

dismissed.

8. Adverting to the contentions raised by the learned

counsel for the respective parties, the following points are

required to be addressed:

(i) Whether the charge was defective and not in

consonance with the prosecution case?

(ii) Whether the appellant is prejudiced merely

because P.W.6 who conducted search and seizure

after detection of the crime also conducted

investigation and submitted final prosecution report?

(iii) Whether compliance of section 50 of the

N.D.P.S. Act at the time of search and seizure was

necessary and if so, whether the same has been

complied with?

(iv) Whether there is non-compliance of the

provision under section 55 of the N.D.P.S. Act?

// 13 //

(v) Effect of non-production of brass seal and

seized ganja before the Court during trial.

Point no. (i):

The charge was framed against the appellant and the

co-accused Panchanan Pradhan under section 20(b)(ii)(C) of the

N.D.P.S. Act on the accusation that they were illegally

transporting commercial quantity of ganja in the motor cycle

which was recovered from their possession. On going through

the prosecution report, seizure list and statements of witnesses

recorded during investigation, it appears that the co-accused

Panchanan Pradhan was not with the appellant when the

contraband ganja was transported or seized and no ganja was

ever seized from the possession of the said co-accused and his

implication is based only on the confessional statement of the

appellant before P.W.6. Therefore, the learned counsel for the

appellant is right that the charge was not in consonance with the

prosecution case. The responsibility of framing the charges is

that of the trial Court and it has to judicially consider the

question of doing so. Section 215 of Cr.P.C. lays down when

errors in the particulars required to be stated in the charge can

be treated as material. It lays down that the error cannot be said

to be material unless the accused was in fact misled by such

// 14 //

error or omission and that such error or omission has caused a

failure of justice. Section 464 of Cr.P.C. deals with the effect of

error or omission made while framing charges on the finding and

sentence of the competent Court. The section provides that the

finding and sentence of the Court cannot be invalid merely on

the ground of error in framing charge or omission in framing

charge. The finding and sentence will be invalid only if in the

opinion of the Court of appeal, the error or omission has

occasioned a failure of justice. In my humble view, though the

charge was defective particularly relating to the accusation

against the co-accused, but so far as the appellant is concerned,

it cannot be said that error is of such a magnitude that has

occasioned a failure of justice.

Point no. (ii):

Law is well settled that merely because the officer

who conducted search and seizure, is also the investigating

officer of the case, the accused persons are not entitled to be

acquitted on that score.

In Mukesh Singh -Vrs.- State (Narcotic Branch

of Delhi) reported in (2020) 10 Supreme Court Cases 120,

the five-Judge Bench of the Hon'ble Supreme Court has held as

follows :

// 15 //

"13.2.(ii) 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. The matter has to be decided on a case-to-case basis."

Therefore, though the contention of the learned

counsel for the appellant is that since P.W.6 conducted search

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

investigated into the case and submitted the prosecution report

has got considerable force, but all the same, in absence of any

unfairness or bias on the part of P.W.6 to implicate the appellant

falsely, the prosecution case cannot be discarded on that score.

Point no. (iii):

There is no dispute that in this case, there was no

prior information about the transportation of ganja in a plastic

gunny sack in the motorcycle and while P.W.6 along with other

excise officials were performing patrolling duty at 15.05.2012 at

about 2.15 p.m. at village Khandahota under Rairakhol police

// 16 //

station, on suspicion they detained a red colour Passion Plus

motor cycle bearing regd. No.OR-15-L-7634 and found the

appellant carrying a white colour plastic bag from which smell of

ganja was coming. So far as compliance of section 50 of the

N.D.P.S. Act is concerned, though learned counsel for the

appellant placed reliance on the case of Than Kunwar (supra)

but in that case, the Hon'ble Court has been pleased to hold that

where nothing was recovered on the personal search and the

recovery was effected from the bag, compliance of section 50 of

the N.D.P.S. Act is not required.

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

Singh and others reported in 1999 Criminal Law Journal

3672 so also in the case of State of H.P. -Vrs.- Pawan Kumar

reported in (2005) 4 Supreme Court Cases 350, it has been

held that provision of section 50 N.D.P.S. Act will come into play

only in the case of personal search of the accused and not some

baggage like the bag or container etc., which the accused may

be carrying. A bag, brief case or container etc. can, under no

circumstances, be treated as body of a human being. They are

given a separate name and are identifiable as such. They cannot

even remotely be treated to be part of the body of a human

being. Therefore, it is not possible to include these articles within

// 17 //

the ambit of the word 'person' occurring in section 50 of the

N.D.P.S. Act.

Moreover, P.W.6 has stated that he gave in writing

the option (Ext.9) to the appellant to be searched either by the

Magistrate or by himself and then the appellant wanted to be

searched by him (P.W.6). On a plain reading of Ext.9, the option

given by the appellant, it is mentioned therein that he expressed

his willingness to be searched by P.W.6. Therefore, I am not

inclined to accept the contention of the learned counsel for the

appellant that due to non-compliance of the section 50 of the

N.D.P.S. Act, the conviction of the appellant is not sustainable in

the eye of law.

Point no. (iv):

Section 55 of the N.D.P.S. Act deals with police to

take charge of articles seized and delivered and it states, inter

alia, that an officer-in-charge of a police station shall take charge

of and keep in safe custody, pending the orders of the

Magistrate, all articles seized under the Act within the local area

of that police station and which may be delivered to him and to

affix his seal to such articles.

In the case of Santosh Patra (supra), it has been

held that section 55 of the N.D.P.S. Act provides that if any

// 18 //

contraband article is seized then the same shall be delivered to

the officer in charge of a nearest police station for safe custody

pending orders of the Magistrate. The officer in charge shall

allow any officer who may accompany such articles to the police

station or who may be deputed for the purpose, to affix his seal

to such articles or to take samples of and from them and all

samples so taken shall also be sealed with a seal of the officer in

charge of the police station. So, two conditions are required to

be fulfilled. An officer who accompanies the seized articles shall

be allowed by the officer in charge of the police station to affix

his seal to such articles and take samples thereof. It is further

required that all samples so taken shall also be sealed with a

seal of the officer in charge of the police station.

Keeping the seized articles in the safe custody of

officer in charge of local police station arises where there is no

possibility of producing the same in Court on the date of seizure

itself. Putting the seized articles in sealed condition by affixing

the seal of the officer in charge of the police station making

necessary entry in malkhana register and proving the same

during trial will satisfy the Court about its safe custody.

Law is well settled as held in the case of Herasha

Majhi -Vrs.- State of Odisha reported in 2020 (I) ILR-CUT-

// 19 //

197 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.

In the case of Ramakrushna Sahu and others

-Vrs.- State of Odisha and others reported in (2018) 70

OCR 340, it is held as follows:-

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

// 20 //

entry should also be made in such register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court."

The place of seizure was at village Khandahota which

comes under the jurisdiction Rairakhol police station, but the

seized articles were not produced before the Rairakhol Police

Station rather it was produced before the Town police station,

Sambalpur. P.W.5, the S.I. of police of Town police station,

Sambalpur stated to have kept the bulk quantity of ganja in the

plastic jerry bag so also the sample packets in the P.S.

malkhana. Though he stated that malkhana entry register

no.18/2012 was made, but the prosecution has not produced

either the malkhana register or a copy of the same during trial.

There is no evidence that before keeping the seized articles, the

seal of the official in charge of malkhana was given. Therefore,

except the oral evidence of P.W.5, there is no documentary

evidence relating to the safe custody of the seized articles in the

P.S. malkhana. There is also no evidence as to why the seized

articles were not produced in the nearest police station i.e.

before Rairakhol police station and produced before the Town

police station, Sambalpur which is at a distance of 67 kms. away

from the place of seizure.

// 21 //

Therefore, the prosecution has failed to prove

compliance of section 55 of the N.D.P.S. Act.

Point no. (v):

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.

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

// 22 //

effected search and seizure, then chance of tampering cannot be

ruled out.

In the case of Ashok @ Dangra Jaiswal (supra), it

has been held that in the trial, it was necessary for the

prosecution to establish by cogent evidence that the alleged

quantities of charas and ganja were seized from the possession

of the accused and the best evidence would have been the

seized materials which ought to have been produced during trial

and marked as material objects and there was no explanation for

this failure to produce them. Mere oral evidence as to their

features and production of panchanama does not discharge the

heavy burden which lies on the prosecution, particularly where

the offence is punishable with a stringent sentence as under the

N.D.P.S. Act.

P.W.6 stated that he gave zima of brass seal used for

sealing the contraband articles to Jogeswar Pradhan (P.W.3)

after preparing a zimanama vide Ext.2/1. P.W.3 has not

supported the statement of P.W.6 rather he has stated that

nothing was given in his zima and he has not signed zimanama

(Ext.2/1). P.W.3 has been declared hostile by the prosecution,

but signature of P.W.3 in Ext.2/1 was not confronted to him. The

brass seal was produced on 16.05.2012 by P.W.6 when the

// 23 //

appellant was produced along with other documents. If according

to P.W.6, he gave zima of brass seal used for sealing the

contraband articles to P.W.3, then how he produced it while

forwarding the accused to Court on 16.05.2012. This

substantiates that the recital of zimanama (Ext.2/1) was not

correct and the brass seal was never handed over to P.W.2.

Moreover, on a plain reading of the order dated

16.05.2012, it appears that no comparison has been made

relating to the seal impression appearing on the seized articles

with the brass seal. Learned 2nd Addl. Sessions judge -cum-

Special Judge (Special Court), Sambalpur directed the learned

S.D.J.M., Rairakhol to send the Ext.A/1 and Ext.A/2 for chemical

examination but there is also no evidence that the brass seal

was produced before the learned S.D.J.M., Rairakhol and he

compared the same with the seal impression that is appearing on

the sample packets marked as Ext.A/1 and Ext.A/2. The brass

seal was also not produced during trial to be marked as M.O. and

even the seized ganja was not produced during trial.

It is the duty of the prosecution to prove by adducing

clinching evidence that the articles which were seized from the

possession of the accused were kept in safe custody before its

production in Court and the articles which were produced in the

// 24 //

Court were the very articles that were seized from the accused

and that there was no chance of tampering with the same. Non-

sealing the seized articles with the seal of officer in charge of the

police station who took charge of the articles, non-proving of the

malkhana register showing the entry made for keeping the

articles, non-comparison of the brass seal impression appearing

on the seized articles with the brass seal produced by the court

are certain important aspects which cannot be ignored inasmuch

as those are the cross-checks to substantiate the safe custody of

the articles and rule out tampering with the seized articles. It is

the duty of the Court to mention specifically in that respect in

the order sheet that the bulk quantity of ganja and sample

packets were verified and the seals were found to be intact and it

was compared with the brass seal produced or the seal

impression available on the seizure list or on any other document

and found to have tallied. The same has not been done in this

case.

9. In view of the foregoing discussions and the

infirmities as pointed out above, I am of the humble view that

the impugned judgment and order of conviction is not

sustainable in the eye of law. Accordingly, the impugned

judgment and order of conviction of the appellant under section

// 25 //

20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed there

under is hereby set aside.

The Criminal Appeal is allowed. The appellant is

acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S.

Act.

The appellant has been released on interim bail for a

period of four months by a Coordinate Bench of this Court as per

order dated 28.11.2022 passed in I.A. No. 1239 of 2022, which

has not expired as yet. He is discharged from the liability of bail

bond. The personal bond and surety bonds stand cancelled.

The trial 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 16th March 2023/PKSahoo