Orissa High Court

Kishore Patra vs State Of Odisha on 1 May, 2024

Author: D.Dash

Bench: D.Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.272 of 2021

          In the matter of an Appeal under Section 374 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 13th March, 2020 passed by the
    learned Additional Sessions Judge-Cum-Special Judge, Boudh in
    Special Case No.21/2015 (NDPS Act) (T).
                                   ----

        Kishore Patra                      ....        Appellant
                                 -versus-

        State of Odisha                     ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant    -     Mr.Jagabandhu Sahu
                                       (Advocate)

                For Respondent -       Mr.P.K. Mohanty
                                       Additional Standing Counsel

                                CORAM
                          MR. JUSTICE D.DASH

   Date of Hearing : 24.04.2024     : Date of Judgment : 01.05.2024

D.Dash,J. The Appellant, by filing this Appeal, has called in question

the judgment of conviction and order of sentence dated 13th

March, 2020 passed by the learned Additional Sessions Judge-

Cum-Special Judge, Boudh in Special Case No.21/2015 (NDPS

Act) (T) arising out of C.T. Case No.51/2015 corresponding to

Boudh P.S. Case No.28 of 2015.

The Appellant (accused) thereunder has been convicted for

commission of the offence under section 20(b)(ii)(C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (in short,

'the N.D.P.S. Act'). Accordingly, he has been sentenced to

undergo rigorous imprisonment for ten (10) years and pay fine of

Rs.1,00,000/- (Rupees One Lakh) for commission of the said

offence.

2. The prosecution case, in short, is that on 03.02.2015 around

3.15 p.m, the Sub-Inspector (S.I.) of Police, Boudh P.S. (P.W.10),

receiving the secret information that the accused persons were

packing the dried and processed fruiting and flowering tops of

cannabis plant in a field in Village-Kanagun near Baghiapada for

local transportation of the same, he, having entered the said fact

in the Station Diary maintained at the P.S. and sending a copy of

the same to the Superintendent of Police and S.D.P.O, Boudh,

proceeded to the place with other police officials in a vehicle. It is

further stated that the raiding team, having arrived at the spot

and found the accused persons present and then they were

packing the dried and processed fruiting and flowering tops of

cannabis plant in two sacs. All the accused persons then at the

sight of police, took to their heels and they being chased only one

accused person, the present accused was nabbed whereas the

other two managed to fled away. It is stated that two polythene

carry bags were recovered and those were containing dried

processed flowering and fruiting tops of cannabis

plant/contraband ganja. The bags were then weighed and marked

Ext.A and B. One bag, being weighed, 45 kgs and 200 grams of

ganja were recovered whereas from the other bag, 47 kgs and 770

grams of ganja was recovered. It is stated that P.W.10 then

collected two random samples of 25 grams of ganja from each of

the bags and marked Ext.A/1, A/2, B/1 and B/2. After completion

of the formalities as to the preparation of seizure list, P.W.10 with

other police officials as also the accused came to the Police Station

along with seized articles. The FIR was then registered and

P.W.10 himself took up the investigation. It is further stated that

the accused, being produced before the Special Court, a prayer

was made by the P.W.10 to keep the bulk quantity of ganja in two

packets (Ext.A and Ext.B) along with the two samples (Ext.A/2

and Ext.B/2) in Court malkhana and it was further prayed to send

the samples (Ext.A/1 and Ext.B/1) be sent for chemical

examination, which were allowed. Finally, on completion of the

investigation and other formalities, as also on receipt of the report

of the Chemical Examination, the I.O. (P.W.10) submitted the

Final Form placed this accused along with two others to face the

Trial and that is how this accused faced the Trial.

3. The Trial Court, after examination of the evidence both oral

and documentary let in by the prosecution, has come to a

conclusion that the prosecution has proved the charge against the

accused that he, on that particular date, time and place, was in

possession of 92.970 kgs of ganja beyond reasonable doubt and as

such is liable to be punished under section 20(b)(ii)(C) of the

N.D.P.S. Act. Accordingly, the accused has been convicted and

sentenced as afore-stated.

4. Heard Mr.Jagabandhu Sahu, learned counsel for the

Appellant and Mr.P.K.Mohanty, learned Additional Standing

Counsel for the Respondent-State.

I have perused the impugned judgment of conviction

passed by the Trial and Court and have also extensively travelled

through the evidence of all the prosecution witness (P.Ws.1 to 13),

more particularly the evidence of S.I. of Police (P.W.10.)

5. Admittedly, P.W.10 drew two samples of 25 grams each

from each bag from out of the contents, i.e., in total four samples.

His further evidence is that rest ganja were put in respective bags

by putting identification mark as Ext.A and B. The samples taken

from the Bag-A being kept in packet were marked as Ext.A/1,

Ext.A/2 whereas those being drawn from Bag-B were marked as

Ext.B/1 and Ext.B/2, which were seized under the seizure list. His

evidence is on that on his prayer, learned Special Judge, Boudh,

having drawn the samples from the Ganja, which were produced

before him those samples had been sent for chemical

examination. This P.W.10 does not state as to where he then

carried those sample packets, which he had prepared at the spot

at the time of seizure. He (P.W.10) is also not stating that those

samples packets, which he had collected at the spot from each of

the bags, were produced before the Court where the accused was

produced. When he says that the learned Special Judge, Boudh

drew the samples from ganja and those were sent for Chemical

Examination; the Report of the Special Judge, Boudh forwarding

the samples, however, reveals that two paper envelopes

containing 25 grams of ganja marked as Ext.A/1 and B/1 were

sent for said examination. But then it is not stated that these two

packets Ext.A/1 and Ext.B/1 are those which P.W.10 had collected

at the spot after the detection, which he too had marked Ext.A/1,

Ext.A/2, Ext.B and Ext.B/2. In fact the relevant order-sheet of

learned Special Judge reflects that the I.O. (P.W.10) had prayed

for sending those very two samples packets (Ext.A/1 and Ext.B/1)

to the Chemical Examiner through Court. That prayer being

allowed; the learned Special Court directed the learned S.D.J.M.

Boudh to so forward those sample packets (Ext.A./1 and Ext.B/1)

to the Chemical Examiner.

6. The submission of the learned counsel for the Appellant

(accused) was that grave suspicion is created about the

prosecution's case as the action of P.W.10 was contrary to what

have been laid down in section 52-A of the N.D.P.S. Act.

7. In the case of Union of India -V- Mohanlal & Another;

(2016) 3 SCC 379, the Hon'ble Apex Court has held thus:-

"15. It is manifest from Section 52-A (2) (supra) that upon seizure of the contraband, the same has to be forwarded either to the Officer-In-Charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allowed the application. This implies that no sooner the seizure is effected and the contraband forwarded to the Officer- In-Charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in

the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."

(Emphasis added).

8. In case of Bhotilal -V- Intelligence Officer, Narcotics Control

Bureau; 2023 SCC Online SC 498, keeping the above in view in that

given case, having found that the act of the seizing officer as to

drawal of samples from all the packets at the time of seizure to be

not in conformity with what has been held in case of Mohanlal

(supra), it has been said that the same creates doubt about the

prosecution case that the substance recovered was contraband.

Finally, the prosecution case was held to be not free from

suspicion.

9. In view of the evidence of P.W.10 as discussed as to his role

of drawal of samples from the bags at the time of seizure and