Orissa High Court

2015) vs State Of Odisha on 13 January, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
  CRLA No.126 of 2019, CRLA Nos.498, 565 & 767 of 2018

  (An application U/S. 374 of the Code of Criminal
  Procedure, 1973 against the judgment dated 02.06.2018
  passed by Sri M.R. Dora, 2nd ADSJ-cum-Special Judge,
  Puri in T.R. Case No.6-2-9 of 2017-2016, Regd. No.67 of
  2015).
    (1) Simanchal Swain              ....     Appellants
    (in CRLA No.126 of 2019)

    (2) Pintu Sahu
    (in CRLA No.498 of 2018)

    (3) Sibananda Sethi
    (in CRLA No. 565 of 2018)

    (4) Pintu Palei
    (in CRLA No. 767 of 2018)
                        -versus-
    State of Odisha                     .... Respondents


    For Appellant     :        Mr. S.K. Baral, Advocate
                             (in CRLA No.126 of 2019)
                             Mr. R.B. Mishra, Advocate
                             (in CRLA Nos. 498, 565 &
                                          767 of 2018)

    For Respondent :       Mr. A. Pradhan, Addl. P.P.

       CORAM:
                   JUSTICE G. SATAPATHY

     DATE OF HEARING AND JUDGEMENT: 13.01.2025

G. Satapathy, J.

1. These appeals U/S.374 of the Code of

Criminal Procedure, 1973 (in short "the Code") by the

convicts named above is directed against the

judgment dated 02.06.2018 passed by learned 2nd

Addl. District & Sessions Judge-cum-Special Judge,

Puri in T.R. Case No.6-2-9 of 2017-2016/Regd. No.67

of 2015 convicting the present appellants and

another(dead) for commission of offence punishable

U/S.20(b)(ii)(C) of NDPS Act, 1985 and sentencing

each of them to undergo Rigorous Imprisonment

(R.I.) for a term of 10 years and to pay a fine of

Rs.1,00,000/- each in default whereof to undergo R.I.

for further one year with stipulation to set off the pre-

trial detention against the substantive sentence.

Since the above appeals being directed

against one and the same impugned judgment of

conviction and sentence, the same are heard together

and disposed of by this common judgment with the

consent of the learned counsel for the parties.

2. The prosecution case in short is that on

15.10.2015 at about 10.10 P.M. in the night while

performing patrolling duty at Red Cross Road in

between Railway Station and Badasankha, Puri,

PW.4-Sri S.N. Rath, S.I. of Excise and staff detained

one Maruti Wagnor Car bearing Regd. No.-OR-07U-

8485 coming speedily towards Puri Railway Station in

front of Nigam Medical Store, Puri and found five

persons including the driver with eight numbers of Air

Bags and one Attachi (briefcase) inside the said car.

On suspicion, PW.4 after procuring independent

witness PWs.2 & 3 and observing all the formalities

searched and recovered Contraband Ganja kept in

packets wrapped with polythene by tearing each

packets and thereafter, confirmed the contents of

said packets to be Ganja by burning a small piece of

it with fire and thereafter, PW.4 weighed the

Contraband Ganja kept in five packets each in eight

Air Bags and one Attachi, all total 45 packets each

weighing 2Kgs and thereby, recovered 90Kgs of

Contraband Ganja. On being asked, the five persons

disclosed their names and addresses and four of them

are the present appellants. PW.4 also accordingly,

seized the Contraband Ganja, Air Bags, Attachi and

the Maruti Wagnor Car under proper seizure lists and

arrested the five accused persons including the

appellants by informing them the grounds of their

arrest U/S.52 of NDPS Act and sealed the eight Air

Bags and Attachi by his personal brass seal after

keeping the respective packets of Contraband Ganja

and left the brass seal in the zima of PW.2 and took

up the preliminary investigation of the case. On the

next date on 16.10.2015, PW.4 forwarded all the

accused persons to the Court as well as produced the

seized Contraband Ganja before the learned Special

Judge, Puri with a prayer to draw samples from each

bag and accordingly, samples in duplicates from eight

Air Bags and one Attachi were drawn in presence of

learned S.D.J.M., Puri and the samples were handed

over to PW.4, who transmitted the same to State

Drugs Testing and Research Laboratory, Orissa,

Bhubaneswar (SDTRL) under a copy of forwarding

report of the learned S.D.J.M., Puri through Manas

Kumar Mishra, an Excise Constable and thereafter, he

submitted preliminary report of search, seizure and

arrest of the accused persons in Form No.C/4 to the

Office of Inspector of Excise, Puri, and later on the

Wagnor Car was released in the interim zima of its

owner namely Smt. Indira Mohapatra. After receipt of

chemical examination report on 07.12.2015 and on

completion of investigation, PW.4 submitted

prosecution report against the present appellants and

another.

2.1. On finding a prima facie case, the learned

Sessions Judge-cum-Special Judge, Puri took

cognizance of offence U/S.20(b)(ii)(C) and

transferred the record to the Court of 2nd Addl.

Sessions Judge-cum-Special Judge, Puri, who upon

going through the materials placed on record and

after hearing the parties, proceeded with the trial of

the case by framing charge against the appellants

and another for commission of offence

U/S.20(b)(ii(C) of the NDPS Act resulting in trial in

the present case. In support of its case, the

prosecution examined all together four witnesses and

relied upon 16 documents under Exts.1 to 16, the

sample packets under Exts.A-1 to J-1 and Material

Objects under MOs-I to LIV as against no evidence

whatsoever by the appellants and another accused

person. The plea of the accused persons-cum-

convicts in the course of trial was denial simplicitor

and false implication.

2.2. After analyzing the evidence on record upon

hearing the parties, the learned 2nd ADJ-cum-Special

Judge, Puri convicted the appellants and another for

offence U/S.20(b)(ii)(C) of the NDPS Act and

sentenced each of them to the punishment indicated

in the 1st paragraph. Being aggrieved, the present

appellants and another have preferred this appeal,

but the another person who had preferred appeal

having died during the pendency of the appeal, such

appeal stood abated.

3. In assailing the impugned judgment of

conviction, Mr. S.K. Baral and Mr.R.B.Mishra learned

counsels for the respective appellants mainly

challenges the conviction of the appellants on two

grounds; firstly, non-compliance of mandatory

provisions of NDPS Act and secondly, improper

appreciation of evidence.

3.1. In reply, Mr.Amitav Pradhan, learned Addl.

Public Prosecutor, however, vociferously submits that

since the Contraband Ganja was detected from the

convicts during transit, the compliance of Sec. 42 of

NDPS Act is not required, rather it would be covered

by the provision of Sec. 43 of NDPS Act where no

compliance regarding recording of information and

sending a copy thereof to the higher officer are

required. Mr.Pradhan also submits that the

Contraband articles were produced before the learned

SDJM, Puri who collected the samples and dispatched

it to SDTRL for chemical analysis and thereby, there

is sufficient compliance of Sec. 52-A of the NDPS Act.

It is also submitted by Mr.Pradhan that the

Contraband articles being deposited in Court

Malkhana immediately after producing it before the

learned Special Judge ensures the compliance of

Sec.55 of NDPS Act. Mr.Pradhan, however, does not

dispute about independent seizure witness not

supporting the prosecution case, but he, however,

submits that the evidence of official witness be

reliable, clear and cogent, conviction can be based on

such evidence and the learned trial Court has not

committed any illegality in basing conviction of the

appellants on the evidence of the official witnesses.

4. After having bestowed an anxious and

careful consideration to the rival submissions upon

perusal of the evidence, this Court considers it

apposite to re-evaluate the evidence on record in the

light of rival submissions to find out as to whether the

mandatory provisions of NDPS Act has been complied

with or not, or the learned trial Court has fallen in

error in appreciating the evidence to base conviction

of the appellants. Admittedly, in this case, the

independent witnesses have not supported the

prosecution case, but law is also very clear that the

evidence needs to be weighed, but not to be counted

and if the evidence of official witnesses is found to be

reliable, worthy and convincing, the same can be

relied upon to base conviction of the accused persons

in a criminal case. It is also not in dispute that where

the penal statute provides for higher punishment, the

proof of the guilt of the accused for the offence must

be stricter. The prosecution case as forthcoming from

the materials on record discloses a case about Excise

officials detecting the case while performing patrolling

duty and thereby, it is a case by chance. However, it

is trite law that if the officer concerned receives any

information or has reason to believe with regard to

concealing of Contraband articles in any building,

conveyance or enclosed place between sunrise and

sunset while he is on move either on patrol duty or

otherwise and such information or his belief calls for

immediate action and any delay would likely to result

in the Contraband or evidence relating to keeping

such Contraband concealed being removed or

destroyed and thereby, it would not be feasible or

practical to take down in writing such information of

belief in such situation, the said officer could take

action in terms of the provisions of Sec. 42 of the

NDPS Act, but such taking up action in terms of Sec.

42 of NDPS Act must be subsequently recorded in the

within 72 hours be sent to his official superior. The

aforesaid statement is not an empty formality, rather

is a mandatory requirement under law as emanates

from Sec. 42 of NDPS Act.

5. In this case, the learned Addl. Public

Prosecutor has undoubtedly tried to convince the

Court that since the Contraband Ganja was detected

as a chance recovery and the same being recovered

while in transit being found to be carried on a vehicle,

there is no requirement of compliance of Sec. 42,

rather the case would be covered by Sec. 43 of NDPS

Act, but such assertion of learned Addl. Public

Prosecutor is not in terms of statute as provided in

Sec. 42 of NDPS Act. In this regard this Court is also

fortified with the decision in State of Rajasthan vrs.

Jag Raj Singh @ Hansa; (2016) 11 SCC 687

wherein after taking note of the evidence on record

about private Jeep although being used for

transporting passengers, but the same having been

without any permit for transporting passenger as a

public transport vehicle, the Apex Court held such

personal Jeep not to be a public conveyance within

the meaning of explanation to Sec. 43 and thereby

held for requirement of compliance of Sec. 42 of

NDPS Act in that case. Admittedly, it is the consistent

case of the prosecution that the appellants were

found in possession of Contraband Ganja in a Wagnor

Car bearing Registration No. ORO7U-8485. It is also

stated by raiding officer-cum-PW4 that he had seized

the said car and released it in zima of its owner under

a zimanama and thereby, no evidence being tendered

by prosecution to establish that the said Wagnor car

being a public vehicle, it can be safely said that the

car in question was a private car. On a careful glance

of provision of 42 of the NDPS Act, the Wagnor car

being used as a private conveyance in this case, any

information regarding keeping concealed any

Contraband Ganja in the said car or the reason of

belief of the raiding officer about concealing

Contraband Ganja in the said car would require

compliance of Sec. 42 of NDPS Act. In this regard,

this Court considers it apt to reiterate the law down

by Apex Court in Karnail Singh Vrs. State of

Haryana; (2009) 8 SCC 539, wherein a

constitutional Bench of the Apex Court while

answering a reference has recorded its conclusion in

paragraph-35 which is extracted under:-

"35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information of the nature referred to in sub-section(1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But 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 in writing the information given to him, 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 information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer.

But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But 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 will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where

the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."

Further, Sec. 42(1) of the NDPS Act makes it

ample clear that if the officer has reason to believe

from personal knowledge or information given by any

person and taken down in writing has to make such

officer to comply Sec. 42 of NDPS and Sec. 42(2)

makes it imperative for such officer who has taken

down any information in writing under Sub-section

(1) or records ground for his belief under the

provision thereto, he shall within 72 hours send a

copy thereof to his immediate official superior. In this

case, of course PW4 had not got any opportunity to

record information prior to conducting such seizure,

but he had to comply the requirement of Sec. 42 of

NDPS Act after completing the search and seizure in

view of the law laid down by Apex Court in Karnail

Singh(supra), but the evidence of prosecution

witness, more particularly the testimony of PW4 does

not disclose about him complying Sec. 42(1) or (2) of

NDPS Act which is mandatory in nature and non-

compliance of such provision would vitiate the

conviction of the appellant as held by the Apex Court

in Karnail Singh(supra). It is thus, very clear that

once there is infraction of compliance of Sec. 42, it

would ensure to the benefit of the accused and in this

case the conviction of the appellants would be

vitiated on that score only.

6. On coming back to see the mandatory

compliance of Sec.52-A of the NDPS Act, it appears

that the representative sample(s) is/are required to

be taken in the presence of Magistrate who in

addition of allowing to draw representative sample(s)

of such drugs or substances in his presence has to

certify the correctness of any list of samples so

drawn. A brief reference to the evidence of PW4, the

Raiding Officer, it transpires that PW4 opened all the

packets and took a small piece from each packets and

tested it by smell and burning it and thereafter he

sealed all these packets by means of paper through

his personal brass seal and seized the same under

proper seizure list Ext.1 and released his personal

brass seal in zima of witness Bankanidhi Pradhan

under Zimanama Ext.2, however, the said Bankanidhi

Pradhan having been examined as PW2 has disowned

such facts. At the same time, the evidence of PW4

further transpires that as per order of the Court, he

produced the seized articles before the Court of

learned SDJM, Puri and collected samples from each

packets found from each bags and sealed the same

by marking it as Ext.A-1 to J-1, but nowhere in the

evidence it is stated by PW4 that the learned SDJM

has certified the correctness of the list of samples so

drawn as mandatorily required U/S. 52-A(2)(c) of the

NDPS Act. In addition, the personal brass seal of PW4

which was handed over to PW2-Bankanidhi Pradhan

has never seen in the light of day because it was

neither produced in the Court nor any independent

evidence was tendered to say that it was kept in the

zima of PW2 till it was taken over by PW4. What is

most important is that the samples so collected on

16.10.2015 was sent to SDTRL, Bhubaneswar

through Constable Manas Kumar Mishra who

produced the same before the SDTRL on 17.10.2015,

but neither the said Manas Kumar Mishra was

examined in this case nor any evidence was produced

by the prosecution to say that the samples were

under the safe custody till it were produced before

the SDTRL which is an important requirement of Sec.

55 of the NDPS Act. It is also not known as to under

whose custody the samples were kept till it was

produced before SDTRL on 17.10.2015. The aforesaid

evidence gains further significance by the admission

of PW4 that he had not produced the seized articles

before any police officer of nearby police station and

he cannot say, if the seized articles were kept in their

office Malkhana during the night of its recovery.

Further, no Malkhana Register was tendered in

evidence to establish the safe custody of the sample

packets, so also the bulk Ganja packet till it was

deposited before the Court Malkhana. The above

evidence clearly makes out a case for infraction of

Sec. 55 of NDPS Act which is not an empty formality,

but it casts a duty on the Raiding Officer to take

charge of the seized articles till delivery for safe

custody of the Contraband as contemplated U/S. 55

of the NDPS Act, which further provides that if any

Contraband Ganja is seized, the same shall be

delivered to Officer-in-charge of a nearest Police

Station for safe custody pending orders of Magistrate.

7. It is also found from the record that the list of

sample packets which were collected in presence of

Magistrate has not been certified by the Magistrate

about its genuineness and if the same is read together

with the evidence and discussions made hereinabove, it

would disclose a case of infraction of Sec. 52-A of NDPS

Act. What would be the consequence of non-compliance

of Sec. 52-A (2) of the NDPS Act has been well

explained by the Apex Court in Simarnjit Singh Vrs.

State of Punjab; (2023) SCC OnLine SC 906,

wherein the Apex Court after extensively quoting

paragraphs-15 to 17 of the decision in Union of India

Vrs. Mohanlal and another; (2016) 3 SCC 379 has

allowed the appeal by setting aside the conviction of

the appellant therein for offence punishable under

Section 15 of NDPS Act. For better appreciation,

paragraphs-15 to 17 of the decision in Mohanlal and

another (supra) are extracted below:

"15. It is manifest from Section 52- A(2)include (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 allow 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- sections (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."

8. In view of the discussions made

hereinabove and on re-appreciation of evidence on

record together with the fact that the prosecution has

failed to prove the mandatory compliance of Sec. 42,

52-A(2) and 55 of NDPS Act, this Court has no option

left, but to conclude that the impugned judgment of

conviction is unsustainable in the eye of law and is

required to be set aside.

9. In the result, the appeals stand allowed

on contest, but in the circumstance there is no order

as to costs. Consequently, the impugned judgment of

conviction and the order of sentence passed by