Orissa High Court
Somanath Das vs State Of Odisha on 1 May, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.83 of 2022
In the matter of an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 6th December, 2021 passed by the
learned Special Judge, CBI, Court No.1-cum-Additional Sessions
Judge, Bhubaneswar in T.R. Case No.16 of 2019.
----
Somanath Das .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - M/s.S.N. Panigrahi and
B.S. Panigrahi (Advocates)
For Respondent - Mr.P.K. Mohanty
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 25.04.2024 : 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 6th
December, 2021 passed by the learned Special Judge, CBI, Court
No.1-cum-Additional Sessions Judge, Bhubaneswar in T.R. Case
No.16 of 2019 arising out of PR Case No.212 of 2018 of E.I. &
E.B. Unit-1, Cuttack.
By the impugned judgment of conviction and order of
sentence, the Appellant (accused) has been convicted for
commission of the offence under section 21(b) 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 eleven (11) years and pay fine of
Rs.1,00,000/- (Rupees One Lakh) for commission of the said
offence in default to undergo rigorous imprisonment for one year
with a direction to get the benefit of usual set off.
2. The prosecution case, in short, is that on 16.11.2018 when
Sub-Inspector (S.I.) of Excise, E.I. & E.B., Unit-1, Cuttack (P.W.3)
with other Excise Officials was conducting patrolling duty in
Bhubaneswar in between Jayadev Vihar and Nandankanan Road,
it was around 7 a.m., he received credible information that on the
road at Mayfair Hotel Square, in front of Loyola School of Salia
Sahi, one boy aged about 22 years wearing a check half pant and
cement colour T-Shirt was selling Heroine. Receiving such
information, P.W.3 recorded the same and informed to his
immediate superior, i.e., Inspector-in-Charge (IIC-Sarat Chandra
Bhanja) over mobile phone. He also sent a copy of the said
recorded information through an Excise Constable in compliance
of sub-section (2) of Section 42 of the NDPS Act. Arriving at the
site, as stated above, P.W.3 could notice that person wearing the
same dress as earlier informed. He (P.W.3) then detained that
person at the spot in presence of other members of the raiding
party. That person being asked stated his name to be Somanath
Das (accused). P.W.3 then told the accused about the grounds of
belief that he was suspected to be in possession of Heroin. He
then asked him that if he so desired, he had the right of being
searched in presence of Executive Magistrate or Gazetted Officer.
The said right of the accused being intimated by P.W.3 in writing,
the accused responded in stating that the search be made by
P.W.3 in presence of witnesses of which he had no objection.
Thereafter P.W.3 searched the accused and recovered a
transparent polythene pouch containing light gray colour powder
and some sale money from the front side pocket of the half pant
worn by the accused. The pouch then was opened and a small
quantity of powder kept inside being taken, a preliminary test
was conducted by P.W.3 with the help of the Narcotic Drugs Kits
which he was carrying. Upon such test and out of his
departmental experience, he confirmed the same to be Heroine
(Diacetylmorphine). The contents of the pouch were then
weighed which came to 85 grams. The said pouch thereafter was
kept in a yellow colour envelop which was seized by using paper
slip containing signatures of accused, witnesses and P.W.3. The
envelop was also sealed by Wax using personal brass seal of
P.W.3 in presence of the witnesses and thereafter the seal was
given in Zima of Debasis Patra (P.W.1) who executed the
Zimanama that he would produce the same as and when so
required. P.W.3 then prepared the seizure list in respect of the
pouch containing 85 grams of Heroin (Diacetylmorphine) and
cash of Rs.1900/- The contents of the seizure list was read over
and explained to the accused and he as also the witnesses put
their signatures after understanding that all those whatever have
been written were correct. A copy of the said seizure list was
handed over to the accused, who acknowledged the receipt of the
same by putting his signature. The statement of the accused was
recorded under section 67 of the NDPS Act and so also the
statements of other witnesses were recorded under section 161,
Cr.P.C. by P.W.3. The accused with the seized property and other
relevant documents prepared at the spot were produced before
the learned Special Judge, Bhubaneswar. The seized properties
were produced before the learned Sub-Divisional Judicial
Magistrate (SDJM), Bhubaneswar as directed by the learned
Special Judge. Two samples weighing 5 grams were then drawn
from that pouch, containing the powder (said to be heroin) which
was marked Ext.A-I and Ext.A-II. As per the direction of the
learned S.D.J.M., the sample packets were sent to State Drugs
Testing & Research Laboratory, Odisha, Bhubaneswar. The
residue content (suspected heroin) were kept in the packet as also
the second sample marked as Ext.A/II and the money recovered
amounting to Rs.1900/- were kept in the court Malkhana as per
the order of the Court. Chemical Examination Report when
finally came that the sample examined was nothing but Heroin
(Diacetylmorphine), finally PR was submitted and the accused
ultimately faced the trial for commission of offence under section
21(b) of the NDPS Act.
3. The case of the defence is that of complete denial and false
implication.
4. During trial, the prosecution in total has examined three
witnesses, out of whom P.W.1 is the independent witness to the
seizure whereas P.W.3 is the Excise Sub-Inspector who was the
head of the raiding party and P.W.2 is one of the companions of
P.W.3, who was then the Assistant Sub-Inspector of Excise.
5. The Trial Court upon examination of evidence of the
prosecution witnesses and taking into account the documents
admitted in evidence, such as Ext.1 to Ext.15 of which the
important are the seizure list (Ext.1), the notice of option and
reply to that Ext.2/1 and Ext.3/1 respectively as also the Chemical
Examiner's Report (Ext.15) has held the prosecution to have
proved the charge against the accused beyond reasonable doubt.
Accordingly, the accused having been convicted for commission
of offence under section 21(b) of the NDPS Act; he has been
sentenced as afore-stated.
6. Mr. S.N. Panigrahy, learned counsel for the Appellant, as
the outset submitted that the entire prosecution case stands
suspect in view of the total non-compliance of provision contains
in section 50 of the NDPS Act which is mandatory. In order to
bolster his submission in that light, he has invited the attention of
this Court to the depositions of all the three witnesses (P.W.1 to
P.W.3) as also the relevant documents, Ext.2/1 and Ext.3/1. He
submitted that these two documents, Ext.2/1 and Ext.3/1 on a bare
look can be said to be the handiwork of P.W.3 in order to simply
show the compliance of the mandatory provision of section 50 of
the NDPS Act merely signatures of this accused have been taken.
He further submitted that when P.W.1 has stated nothing about
the compliance of the provision of section 50 of the NDPS Act,
P.W.2 has also not stated anything and P.W.2 is none other than
the other Excise Official, who had accompanied P.W.3 and,
therefore, the evidence of P.W.3 that the accused was made aware
to his right of being searched in presence of an Executive
Magistrate or Gazetted Officer and that he expressed his desire
not to be searched before them but to be searched before P.W.3, in
the facts and circumstances, cannot be accepted for a moment.
He, therefore, submitted that for such non-compliance of the
mandatory provisions of section 50 of the NDPS Act, the
judgment of conviction and order of sentence cannot be
sustained.
7. Mr. P.K. Mohanty, learned Additional Sanding Counsel
submitted that P.W.1 having supported the defence at the time of
trial even though has not stated anything touching upon the
compliance of the provision of section 50 of the NDPS Act, the
same has been very well spoken by P.W.3. He further submitted
that P.W.2 although initially has not stated anything about the
compliance of section 50 of the NDPS Act, he has clearly
admitted that P.W.3 had asked the accused to give his option as
to if he wanted to be searched in presence of the Executive
Magistrate or Gazetted Officer and he had given his option before
P.W.3 and others in writing. He, therefore, submitted when P.W.3
has no axe to grind against the accused who was not known to
him at any point of time before the detection, therefore, his
evidence should not be doubted simply because P.W.1, the
independent seizure witness has not supported the prosecution
case and P.W.2 had stated slightly in a different manner.
8. Keeping in view the submissions made, I have carefully
read the impugned judgment of conviction and order of sentence
which have been impugned in this Appeal. I have also gone
through the depositions of P.W.1, P.W.2 and P.W.3 as also the
documents which has been admitted in evidence and marked
Ext.1 to Ext.15 more importantly Ext.2/1 and Ext.3/1, which very
much concerned with the submission advanced by the learned
counsel for the accused urging for his acquittal.
9. Law is no more res integra that in a case of personal search
of a person, who is suspected to be having Narcotic Drugs and
Psychotropic Substances the provision of section 50 of the
N.D.P.S. Act is required to be mandatorily complied with. The
said provision has been enacted with the sole purpose of
ensuring that the search and seizure, if any, remains free from
any kind of manipulation and it be done or carried out in a
transparent manner. So for that reason the Legislature has
provided a safeguard to the person concerned of having been
made aware of his right of being searched in presence of an
Executive Magistrate or Gazetted Officer, if he so desires and
then to exercise his option as such. It is also settled principle of
law that the Officer, who has the reason to believe that the person
concerned is in possession of Narcotic Drugs and Psychotropic
Substances and wants to search that person, he ordained under
law to make that person aware of his right as available under
section 50 of the NDPS Act that if he so desired, he would be
searched in presence of an Executive Magistrate or Gazetted
Officer and only thereafter if the person concerned opts of being
searched by that particular Officer who has detained him with
the suspicion that he was carrying Narcotic Drugs or
Psychotropic Substances, search of the person can proceed for the
seizure of contraband if so found from his possession.
In the touchstone of the above principles when the evidence
of P.W.3 is seen, he is found to have stated that on his arrival at
the spot and after detention of the accused, he gave his identity to
the accused and disclosed that he wanted to take his personal
search as he was suspected to be possessing contraband articles.
He stated to have given an option to him of being searched in
presence of an Executive Magistrate or Gazetted Officer as per the
requirement of section 50 of the NDPS Act in writing. He further
submitted that the accused when gave his consent for being
searched by P.W.3 in writing under Ext.3 in response to the notice
under Ext.2/3, said search was conducted by P.W.3.
At this stage, it be stated that the plea of the accused is that
no contraband was seized from his possession. When the above is
the evidence of P.W.3, we find P.W.1, the independent witness to
the seizure to have stated absolutely nothing about the fact that
P.W.3 had made the accused aware for his right of being searched
before the Executive Magistrate or Gazetted Officer and also to
exercise the option to be exercised by P.W.3 and finally he was
searched by P.W.3 in presence of others who had accompanied
P.W.3. Although the prosecution was permitted to put with the
leading question to the witness, the cross-examination has not
been directed as to all these above facts touching about the
compliance of section 50 of the NDPS Act and when the
prosecution has asked this witness that he was suppressing the
truth, he has flatly denied. When the evidence of P.W.2 is gone
through, it is seen that he is none other than the ASI of Excise,
who had accompanied P.W.3. He states that when they arrived
and detained the accused, P.W.3 and all others gave their
personal search and P.W.3 took the search of the accused and
recovered the contraband from his right side pant pocket as also a
sum of Rs.1900/- He in his Examination-in-Chief has not breathed
a word about to the fact that P.W.3 or anyone else having
detained the accused had told about the reasons of such detention
and then having expressed that he was suspected in possession of
Narcotic Drugs and Psychotropic substances, was made aware of
his right of being searched in presence of an Executive
Magistrate or Gazetted Officer. As regards the service of the
writing upon the accused in order to exercise his option and the
reply given to the same by the accused, this P.W.2 has not stated
anything although prosecution being permitted to put leading
question, during cross-examination, he has stated that P.W.3 had
asked for the option of the accused for his searched in presence of
Executive Magistrate or Gazetted Officer and he has also proved
his signatures on those two writings. On a close reading of the
evidence of P.W.3, without even taking the evidence of P.Ws.1 &
2 into account, I am of the considered view that his evidence do
not satisfy that there was compliance of mandatory provisions of
section 50 of the NDPS Act. He does not state that after the
detention of the accused, he was made aware that he had the
right of being searched other in presence of a Gazetted Officer or
Executive Magistrate. Section 50 of the NDPS Act for its
compliance in letter and spirit consists of two limbs; (i) that the
person concerned first be made aware of his right available under
section 50 of the NDPS Act and then (ii) as per the option that he
would be exercising the search and seizure would be performed
and not in deviation to the said exercised option. In the case at
hand, P.W.3 having not stated to have made the accused aware of
his right available under section 50 of the NDPS Act, the first limb
of section 50 of the NDPS Act is found to have not been complied
with.
Now coming to the documents in support of his compliance
of the provision of section 50 of the Evidence Act, I find that
Ext.2/1 and Ext.3/1 are relevant. As it appears the person, who
has written the contents of this Ext.2/1 and Ext.3/1 has not signed
on the same as the scribe giving any endorsement in that regard.
Be that as it may, when P.W.3 has stated that he had given all
those writings, let us accept for a moment that those two
documents, Ext.2/1 and Ext.3/1 were written by P.W.3 in his own
hand. When Ext.3/1 is seen, it appears that the signature of
accused has been taken at the foot of that piece of writing
whereas the signature of the witnesses are placed above him and
in that Ext.3/1 when P.W.3 had absolutely no reason to sign, he
has put his signature stating himself to be the person who was to
search and proceed for seizure of contraband, if any.
Apart from the above evidence, the documents very
interestingly finds the official seal of P.W.3 as if when he had
gone to in the raiding party carrying one such official seal with
him which raises doubt in mind that the documents Ext.2/1 and
Ext.3/1 had not been prepared at the spot but at some later point
of time. Having discussed the evidence of P.W.3 as also the
documentary evidence projected by the prosecution in support of
the compliance of mandatory provision of section 50 of the NDPS
Act when those do not at all receive corroboration from P.W.1
and even P.W.2's evidence cannot be said to have been standing
as corroborative evidence on material particulars, this Court is of
the considered view that in the particular case, there has been
total non-compliance of section 50 of the NDPS act which leads to
say that the judgment of conviction of the accused for committing
the offence based on said search and seizure cannot be sustained.
10. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 6th December, 2021 passed
by the learned Special Judge, CBI, Court No.1-cum-Additional
Sessions Judge, Bhubaneswar in TR Case No.16 of 2019 are
hereby set aside.
Since the Appellant, namely, Somanath Das, is in custody,
he be set at liberty forthwith, if his detention is not wanted in
connection with any other case.
(D. Dash),
Judge.
Himansu
Signed by: HIMANSU SEKHAR DASH
