Orissa High Court
Hajari Dalabehera vs State Of Odisha on 13 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R.A. No.99 of 1996
(In the matter of an application under Section 374 of the Criminal
Procedure Code.)
Hajari Dalabehera .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case:-
For Appellant : Mr. D.P. Dhal, Sr. Advocate,
S.K. Nayak, D.K. Das, A.R.
Acharya and A. Ray.
For Respondent : Mr. Suvasish Pattnaik,
Learned Addl. Government
Advocate
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 18.09.2023 / date of judgment :13.10.2023
A.C. Behera, J. The appellant, by preferring this appeal, has challenged the
judgment of conviction and order of sentence dated 13.03.1996 passed by
the learned 1st Additional Sessions Judge, Puri camp at Nayagarh in S.T.
Case No.41/1 of 1993 arising out of C.C. No.63 of 1992 of the court of
learned S.D.J.M., Nayagarh.
// 2 //
The appellant has been convicted for commission of offence under
Sections 20(b)(i) of the N.D.P.S. Act, 1985. For the above conviction, he
has been sentenced to undergo R.I. for three years and to pay a fine of
Rs.10,000/- in default to undergo R.I. for one year.
2. Prosecution Case:-
On 29.04.1992, the S.I. of Excise Nayagarh, Shri Kedarnath Panda
along with his excise staffs, APR Force and Executive Magistrate
proceeded to the village of appellant (accused), i.e., to village Badabhuin
in the district of Nayagarh for conducting raid in respect of the illegal
cultivation of cannabis plants. At about 2.00 P.M., the said Excise Sub-
Inspector Shri Kedarnath Panda along with his excise staffs, force and
Executive Magistrate raided the bari of the accused. The bari of the
accused situates adjoining to his dwelling house. After reaching there,
S.I. of Excise Shri Kedarnath Panda called two independent witnesses,
namely, Chandramani Bhuyan and Lokanath Pradhan and entered into
bari of the accused and by that time the accused was present in his bari.
They found cultivation of cannabis plants in the bari of the accused, to
which (he), (S.I. of Excise Shri Kedarnath Panda) up rooted in presence
of the witnesses and staffs and counted the same. On counting of the up
rooted cannabis plants, it became 1200 numbers and thereafter measured
the heights of the cannabis plants and the heights of the cannabis plants
were in between 2'4" to 3'8". Then he (S.I. of Excise) seized the same
through seizure list (Ext.1/2) with the signature of the accused and the
witnesses and serve the copy thereof on the accused and make bundle to
the seized plants and sealed all the bundles through paper seal and
arrested the accused, then brought him along with the seized cannabis
plants to his office. On its next day, i.e. 30.04.1992 he (S.I. of Excise)
// 3 //
forwarded the accused to the court along with seizure list and seized
cannabis plants and made a prayer before the learned S.D.J.M., Nayagarh
for drawing up of samples of the seized cannabis plants and accordingly,
samples were drawn and the said samples were forwarded as per the
order of the Court for chemical examination and report. He also
examined the witnesses and recorded their statements, issued requisition
to Tahasildar, Nayagarh for submission of report about the ownership of
the bari in question (from which the cannabis plants were allegedly
seized) and got the land identified through R.I., Darpanarayanpur and
came to know from the said report of the R.I. that, the bari in question
stands in the name of the accused and collected the report of the chemical
examiner (Ext.5). Then after completion of the investigation, he (S.I. of
Excise Kedarnath Panda) submitted prosecution report under Section
20(b)(i) of the N.D.P.S. Act, 1985 against the accused before the learned
Special Judge-cum-Sessions Judge, Puri for facing the trial.
3. Then on transfer of the said case to the court of learned 1st
Additional Sessions Judge, Puri, the accused faced trial in the said court
having been charged under Section 20(b)(i) of the N.D.P.S. Act, 1985.
The plea of the defence was one of complete denial to the above
alleged cultivation of cannabis plants in the bari of the accused and
seizure of the same.
The specific plea case of the defence as per the statements of the
accused recorded under Section 313 of the Cr.P.C. was that, while he was
returning from Nayagarh bus stand leaving his son there, he found that,
the staffs of Excise Department are coming loading cannabis plants in a
Truck and after seeing him (accused) they (Excise staffs) detained him
and compelled him to sit in that truck in order to be a witness and on
// 4 //
good faith, he sat on that Truck and after coming to the Excise Office
through that Truck, the staffs of Excise Department forwarded him to the
court on its next day implicating him into the case falsely, but, he had not
cultivated any cannabis plants in any bari.
4. In order to substantiate to aforesaid charge against the accused,
prosecution examined altogether four witnesses as P.Ws.1 to 4 and
relined upon several documents vide Exts.1 to 5, but the defence
examined none of its behalf.
Out of four witnesses of the prosecution, P.W.3 is the S.I. of
Excise, i.e., Shri Kedarnath Panda, who had conducted the search,
seizure and arrest and had submitted prosecution report. P.W.4 is the
A.S.I. of the Excise. P.Ws.1 and 2 are the two independent witnesses to
the alleged search, seizure and arrest.
5. After conclusion of the trial and on perusal of the materials and
evidence available in the record, the learned trial court found the accused
guilty for the offence under Section 20(b)(i) of the N.D.P.S. Act, 1985
and convicted him thereuner by relying upon the testimonies of two
official witnesses, i.e., P.Ws.3 and 4 disbelieving the plea of defence and
passed an order of sentence against him(appellant/accused) as stated
above vide judgment dated 13.03.1996 in S.T. Case No.4/1 of 1993.
On being aggrieved with the aforesaid judgment of conviction and
order of sentence passed against the accused under Section 20(b)(i) of the
N.D.P.S. Act by the learned trial court below, he (accused) challenged
the same by preferring this appeal being the appellant after taking several
grounds in his appeal memo.
// 5 //
I have already heard from the learned counsel for the appellant and
the learned Additional Government Advocate for the State.
6. In order to assail the impugned judgment of conviction and order
of sentence, learned counsel for the accused submitted that, the materials
in the record are not going to show about the compliance of the
provisions of Sections 42, 50(6), 52, 55 and 57 of the N.D.P.S. Act, 1985
and as well as about the safe custody of the alleged seized articles, for
which, according to him (learned counsel for the accused), the impugned
judgment of conviction and order of sentence passed against the accused
cannot be sustainable under law.
7. On the contrary, learned Additional Government Advocate for the
State argued in support of the impugned judgment of conviction and
order of sentence passed by the trial court contending that, the evidence
of P.Ws.3 and 4 being well corroborated with each other is justifying the
impugned judgment of conviction and order of sentence passed by the
trial court. For which, according to the learned Additional Government
Advocate, the impugned judgment of conviction and order of sentence
passed by the learned trial court against the accused cannot be
unsustainable under law.
8. It is the established propositions of law that, as the "offences under
the N.D.P.S. Act, 1985 are attracting severe punishments, therefore, it
requires strict proof for proving search, recovery and seizure.
As the N.D.P.S. Act, 1985 is a presumptive legislation, provisions
thereof need to be interpreted strictly. Therefore, the officer conducting
search, recovery, seizure and arrest under the N.D.P.S. Act, 1985 is
bound to follow the procedures envisaged under law and he cannot act as
// 6 //
per his own suit will, whim and fancy. Because, the stringent
punishments prescribed under the N.D.P.S. Act, 1985 commands from
the prosecuting agency to follow mandate of law properly, failing which,
prosecution is to be rejected out-rightly.
So keeping the above settled propositions of law in mind, this
appeal at hand against the judgment of conviction and order of sentence
passed under Section 20(b)(i) of the N.D.P.S. Act is to be dealt with.
9. Section 42 of the N.D.P.S. Act provides the powers of the
Searching Officer regarding the search, seizure, arrest and the
compliances thereof.
Section 50(6) of the N.D.P.S. Act provides the duties of the
Arresting Officer to comply.
Sections 52 and 55 of the N.D.P.S. Act provide provisions relating
to the dealing up of the seized articles and as well as the arrested persons.
Section 57 of the N.D.P.S. Act provides the procedures to be
complied by the Arresting Officer after arrest and seizure.
10. Out of the above provisions envisaged in the N.D.P.S. Act, 1985,
the compliance of the provisions under Sections 42 and 50 of the
N.D.P.S. Act, 1985 are mandatory and compulsory in nature.
The nature and manner of compliances of the provisions of Section
42 of the N.D.P.S. Act has already been clarified by the two following
Constitution Bench decisions of the Apex Court;
(2009) 44 OCR (SC)--183 Karnail Singh vrs. State of Haryana
(Five Judges Bench)
// 7 //
(2020) 8 OCR (SC)-- Tofan Singh vrs. State of Tamilnadu,
wherein it has been clarified that:-
"N.D.P.S. Act, 1985--Section 42 power of entry, search,
seizure and arrest without warrant or authorization-- the
officer on receiving the information from any person of the
nature referred to in Sub-section(1) of Section 42 had to record
it in writing in the concerned register and forthwith send a copy
thereof to his immediate official superior, before proceeding to
take action in terms of clauses-1(a) to (d) of Section 42 (1).
If the information was received, when the Officer was
not in the police station, but while he was on the move either on
patrol duty or otherwise, either by mobile phone or other
means, and the information calls for immediate action and any
delay would have resulted in the goods or evidence being
removed or destroyed, it would not be feasible or practical to
take down the information given to him and in such a situation,
he could take action as per clauses(a) to (d) of Section 42(1)
and thereafter as soon as it is practical, record the same in
writing and forthwith inform the same to the official superior.
In regard to writing down the information receive and
sending copy thereof to the superior officer, it would normally
precede the entry, search and seizure by the officer, but in
special circumstances involving emergent situation, the
recording of information in writing and sending a copy thereof
to the official superior may get postponed by a reasonable
period.
Total non-compliance of Sub-section(1) and (2) of
Section 42 is impermissible, but delayed compliance with
// 8 //
satisfactory explanation about the delay will be an acceptable
compliance of Section 42.
If the information was received, when the police officer
was in the police station with sufficient time to take action and
if the police officer fails to record in writing the information
received or fails to send a copy thereof to the official superior,
then it would be a suspicious circumstance being a clear
violation of Section 42 of the Act."
11. Section 50(6) of the N.D.P.S. Act provides that after a search is
conducted under Sub-section(5), the officer shall record the reasons of
such believe which necessitated search and within 72 hours send a copy
thereof to his immediate official superior.
12. Section 57 of the N.D.P.S. Act provides that whenever any person
makes any arrest or seizure under this Act, he shall within the 48 hours
next after such arrest or seizure, make a full report of all the particular of
such arrest or seizure to his immediate official superior.
13. Out of the four witnesses of the prosecution, the two independent
witnesses, i.e., P.Ws.1 and 2 those are the witnesses to the search,
recovery and seizure have turned hostile. Because, they (P.Ws.1 and 2)
have not stated anything in their evidence about the search of any bari of
the accused and seizure of any cannabis plant from his any bari.
P.W.3 has not deposed anything in his Examination-in-Chief about
the sending of any report regarding search, recovery, seizure and arrest to
his immediate official superior in compliance with the provisions of
Section 42, 50(6) and 57 of the N.D.P.S. Act, 1985. The said P.W.3 has
deposed in para-10 of his deposition by answering the questions of the
// 9 //
learned defence counsel that, "he had taken down into writing the
information received about the illegal cultivation of the hemp plants in
the bari of the accused in his information register of his office. He has not
filed copy of that information taken down into writing.
The above evidence of P.W.3, itself is going to show that, he had
received the informant about the cultivation of alleged cannabis plants in
the bari of the accused, when he was in his office and he had written
down such information by sitting in his office, but, he (P.W.3) has not
uttered a single word in his entire evidence about the sending up of any
copy of such report to his immediate official superior before coming
from his office for the alleged search, recovery and seizure. He (P.W.3)
has not also stated anything in his evidence about the sending up of any
report regarding the search, recovery, seizure and arrest to his immediate
official superior in any day after completion of search, recovery, seizure
and arrest. There is no explanation at all on behalf of the prosecution
about the cause and reason of non-compliance of the provisions of
Section 42 of the N.D.P.S. Act.
14. It has been vividly clarified in the ratio of the aforesaid decisions
of the Apex Court that, the total non-compliance of Sub-section(1) and
(2) of Section 42 of the N.D.P.S. Act is impermissible under law but
delayed compliance with satisfactory explanation about the delay will be
an acceptable compliance of that Section.
Here, in this case at hand, when the information about the illegal
cultivation of cannabis plant was received by the P.W.3, when he was in
his office and there was sufficient time with him to send the copy of his
recorded information to his immediate official superior and when there is
no material in the record to show about the compliance of the above
// 10 //
mandatory provisions of Section 42 of the N.D.P.S. Act, then the above
conduct of P.W.3 itself is going to show that, there is clear violation and
the total non-compliance of the mandatory provisions of Section 42 the
N.D.P.S. Act, 1985.
On this aspect, the propositions of law is very much clear that,
when the compliance of the provisions of Section 42 of the N.D.P.S. Act
are compulsory and mandatory, then the failure to comply with the
requirements of that Section 42 seriously affects the prosecution case and
ultimately, vitiates the trial.
15. P.W.3 has deposed in para nos.1 and 4 of his Examination-in-
Chief by stating that, at the time of search, the accused was standing
inside the bari. During, investigation, he served requisition to Tahasildar,
Nayagarh to find out the ownership of the bari in question and Tahasildar
directed R.I. Darpanarayanpur for identification of the bari and the R.I.
Darpanarayanpur accompanied to the spot and after verifying the record
gave a report that, homestead land along with bari in question is recorded
in the name of the accused. The said P.W.3 has deposed in para no.9 of
his deposition by stating that, the area of the bari measures Ac.0.03
decimals. He is saying about the same from the report of the R.I.
It is very curious enough that, the said P.W.3 has deposed in para
no.13 of his deposition by stating that, the accused was not present in his
house, when the R.I., Darpanarayanpur visited the spot. R.I. and he
(P.W.3) himself visited the spot. He told the R.I. that from the spot in
question, the hemp plant was recovered and he is to speak, who is the
owner and in possession of that bari. He (R.I.) reported him that, the
same belongs to the accused. The plot number and area of the dwelling
house and bari of the accused has not been furnished by R.I. in his report.
// 11 //
He does not remember how many members are in that dwelling house.
He does not remember in which case, original report of the R.I. has been
filed.
P.W.4 has deposed in para no.1 of his deposition by stating that, at
the time of search, the accused was found present in his house.
16. The above evidence of two official witnesses, i.e., P.Ws.3 and 4,
(two Excise Officers) are contradictory to each other. Because, when
P.W.3 has stated above that, at the time of search, the accused was
standing inside his bari, to which P.W.4 has contradicted by stating that,
at the time of search, the accused was not inside the bari but inside his
house, i.e., inside the first room of his house as per his deposition in para
no.4.
17. The above evidence of P.W.3 made in his Examination-in-Chief
and cross-examination are also self-contradictory.
18. Because in paragraph-9 of his deposition, he (P.W.3) has deposed
that the area of the bari measures Ac.0.03 decimal, to which he is saying
from the report of the R.I. But, in para no.13 of his deposition, he has
contradicted the same by stating that the plot number and area of the
dwelling house and bari of the accused has not been furnished by R.I. in
his report. He does not remember in which case original report of the R.I.
has been filed.
On conjoint reading to the above evidence of P.W.3 made in
paragraphs 9 and 13 of his deposition, it is going to show that, P.W.3 has
no idea about any bari of the accused and as well as the area of any bari
of the accused. Because, the R.I. has not given the plot number and area
// 12 //
of any plot in his report and that, too the report of the R.I. has not been
filed or proved during trial on behalf of the prosecution.
So, the ownership of the accused over the bari in question (from
which the cannabis plants were allegedly seized) is not duly established
by the prosecution.
19. That apart, absolutely there is no evidence on record on behalf of
the prosecution to show that, the accused had reared the seeds of
cannabis plants and he was watering the same by taking cares thereof or
he had taken precaution for hiding the existence of the so-called seized
plants. In order to penalize an accused under Section 20(b)(i) of the
N.D.P.S. Act, 1985, there must be definite evidence on behalf of the
prosecution to establish that, the accused had cultivated the seized
cannabis plants and he was watering as well as taking care of the same
and he had taken steps for hiding their existence. But, no such material is
available in the record on behalf of the prosecution.
P.W.3 has deposed in his Examination-in-Chief by stating that, he
seized the cannabis plants through seizure list vide Ext.1/2 on 29.04.1992
and kept the said seized cannabis plants in his office in that night and on
its next day, he produced the same before the court of the learned
S.D.J.M., Nayagarh and one day thereafter, i.e., 01.05.1992, he made a
prayer before the court of learned S.D.J.M., Nayagarh for drawing up of
the samples.
Absolutely there is no evidence in the record on behalf of the
prosecution to show about the safe custody of the seized cannabis plants
in the night dated 29.04.1992 and as well as on 30.04.1992. Because, he
(P.W.3) had produced the seized plants in the court on 30.04.1992,
// 13 //
though the same were allegedly seized on 29.04.1992 and had made
prayer for drawing up of sample on 01.05.1992.
On this aspect the propositions of law has already been clarified in
the ratio of the following decision:-
2019(75) OCR-362 Santosh Rathore and Others vrs. State of
Orissa--N.D.P.S. Act, Section 52 (4) & 55--"Prosecution has not
proved in specific evidence to show safe custody of seized substance and
sample packets till those were produced before the court. Neither the
station diary entry nor the Malkhana register produced during trial. It
cannot be said that there is valid compliance of Section 52(4) and 55 of
N.D.P.S. Act. The non-compliance thereof enure all the benefits for the
acquittal to the accused."
20. Here in this case at hand, there is no evidence on behalf of the
prosecution to show that, the seized cannabis plants were kept in the safe
custody on 29.04.1992 night in the office of the P.W.3 or till the drawing
up of samples from the same. Because, neither any official entry nor any
Malkhana register of the excise office of P.W.3 has been produced or
proved during trial to show the safe custody of the seized substances. So,
due to lack of the above evidence regarding the safe custody of the seized
substances, it is held that, there was lack of compliances of the provisions
of Section 52(4) and 55 of the N.D.P.S. Act, 1985.
21. P.W.3 has deposed in para no.7 of his deposition by stating that, he
seized cannabis plants were sealed through paper seal.
The above evidence of P.W.3 is going to show that, there was no
use of any metal seal during the course of sealing the packets, but, to
// 14 //
which the said P.W.3 himself has contradicted in para no.11 of his
deposition by stating that, he had used common seal on each bundle.
P.W.4 has contradicted to the above evidence of P.W.3 by stating
in para no.5 of his deposition that, plants were packed by putting paper
packing and then Lakha was put on the paper seal, but no seal was used
on the said Lakha.
22. When P.W.3 has deposed that, one metal seal was used in sealing
the packets at the spot, but, to which P.W.4 has contradicted by stating
that no metal seal was used.
None of the witnesses has deposed about the production of any
seal before the court at the time of production of seized packets and also
about the release of any used seal in the zima of anybody or retention of
any used seal with P.W.3. The above self-contradictory evidence of the
two official witnesses, i.e., P.Ws.3 and 4 regarding the use of seal is
ultimately making their evidence unreliable.
23. P.W.3 has deposed in para-12 of his deposition by stating that, he
has not enquired, if the accused was staying in that house alone or with
his brothers and with their family members. No other members were
present in that house on that day.
P.W.4 has deposed in para no.4 of his deposition by stating that, he
has not remembered the numbers of rooms in the house of the accused.
The accused was inside the first room.
The above evidence of P.Ws.3 and 4 is going to show that, the
accused is not the only member of his house and there were other
members in his house, which is not clear from the evidence of P.Ws.3
// 15 //
and 4. Because P.W.3 has deposed that, he has not enquired if the
accused was staying in that house alone or with his brothers and with
their families members.
24. As per the discussions and observations made above, when there is
no material in the record on behalf of the prosecution to show about the
compliances of the provisions of Sections 42, 50(6) 52(4), 55 and 57 of
the N.D.P.S. Act, 1985 in respect of the alleged search, seizure, recovery
and arrest and when prosecution has not become able to establish the
ownership of the accused over the alleged bari in question, (from which,
the so-called cannabis plants were allegedly seized) and when no
document regarding ownership of the accused over the said bari in
question has been filed or proved on behalf of the prosecution and when
the report of the R.I., Darpanarayanpur relating to the ownership and
possession of the accused over that bari in question has been suppressed
on behalf of the prosecution without any explanation and when the safe
custody of the so-called seized cannabis plants has not been proved on
behalf of the prosecution in order to show the fairness of the
investigation and trial, then at this juncture, by applying principles of law
enunciated in the ratio of the decision referred to (supra) to the facts and
circumstances of the case and as well as the law as discussed above, it is
held that, the impugned judgment of conviction and order of sentence
passed by the learned trial court against the accused/appellant under
Section 20(b)(i) of the N.D.P.S. Act, 1985 cannot be sustainable under
law. For which, there is justification under law for making interfere with
the same through this appeal filed by the appellant. As such, there is
merit in the appeal of the appellant. The same must succeed.
// 16 //
25. In the result, the appeal filed by the appellant is allowed. The
judgment of conviction and order of sentenced passed against the
accused/appellant on dated 13.03.1996 under Section 20(b)(i) of the
N.D.P.S. Act, 1985 by the learned 1st Additional Sessions Judge, Puri
camp at Nayagarh in S.T. Case No.41/1 of 1993 is set aside.
Accordingly, the accused/appellant is acquitted from the charge/offence
under Section 20(b)(i) of the N.D.P.S. Act, 1985 on the benefit of doubt.
Therefore, the accused(appellant) is directed to be set at liberty forthwith
after being discharged from his bail bonds. As such, the appeal is
disposed of finally.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 13th of October, 2023/ Jagabandhu, P.A.
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: Secretary-in-Charge
Reason: Authentication
Location: OHC, CUTTACK
Date: 13-Oct-2023 18:51:20
