Tikam Das vs State Of Odisha
2025 Latest Caselaw 2638 Ori

Orissa High Court

Tikam Das vs State Of Odisha on 16 January, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                             CRLA No.92 of 2023
            Tikam Das                   .....        Appellant
                                                              Represented By Adv. -
                                                              Anirudha Das

                                          -versus-
            State Of Odisha                     .....                    Respondent
                                                              Represented By Adv. -
                                                              A.Sethy, A.S.C.

                                 CORAM:
                   THE HON'BLE MR. JUSTICE ADITYA KUMAR
                               MOHAPATRA

                                         ORDER

16.01.2025

Order No.

08. I.A. No.192 of 2023

1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. This I.A. application has been filed for release of the appellant- petitioner on bail during pendency of the appeal/ suspension of sentence.

3. Heard learned counsel for the appellant-petitioner as well as learned counsel for the State. Perused the records.

4. The above noted appeal has been filed challenging the legality of the judgment of conviction and sentence dated 16.01.2023 passed by the learned 3rd Addl. Sessions Judge, Bhubaneswar in T.R. Case No.26/2011 thereby convicting the appellant-petitioner for commission of an offence punishable under Section 21(c) of NDPS

Act and further, the appellant has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/- and in default to undergo further R.I. for six months.

5. Learned counsel for the appellant at the outset contended that the entire trial is vitiated due to non-compliance of the provisions under Sections 52 and 52-A of the NDPS Act. He further emphatically argued that the aforesaid two provisions which are mandatory in nature have not been complied with in the present case. In the aforesaid context, learned counsel for the appellant, drawing attention of this court to the impugned judgment, specifically para-18 of the judgment, submitted that the contraband articles were not seized in presence of any learned Magistrate or Gazetted Officer and that the sample has not been drawn in presence of the learned Magistrate or Gazetted Officer as has been mandated in the statute. He further contended that in para-18 of the judgment, the learned trial court has observed that non-compliance of Section 52 and 52-A of the NDPS Act is not fatal to the case of the prosecution.

6. The aforesaid context, learned counsel for the appellant contended that it is a matter of record that the contraband articles were not seized in presence of learned Magistrate or the Gazetted Officer and that the samples were not drawn in presence of any Magistrate. In the aforesaid context, he referred to the judgment of the Hon'ble Supreme Court in the case of Yusuf @ Asif vs. State in Criminal Appeal No.3191 of 2023 decided on 13.10.2023. On perusal of the aforesaid judgment it appears that the Hon'ble Supreme Court while analysing the provisions contains in Section 52-A of the NDPS Act has categorically held that the in the absence of any materials on record to establish that the samples of the seized

contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Further, it has been held that once there is no primary evidence available, the trial as a whole would stand vitiated. While coming to the aforesaid conclusion, the Hon'ble Apex Court has categorically found that the seized Narcotic Drugs and Psychotropic Substances were not seized in presence of the Magistrate or at least, there is no evidence to establish the aforesaid fact and that the samples drawn were not certified by any Magistrate. It has also been held that the mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. Thus, it has been held that the failure of the concerned authorities to lead primary evidence with regard to seizure vitiates the conviction and accordingly, the conviction of the accused has been set aside in the reported judgment.

7. Relying upon the aforesaid judgment, learned counsel for the appellant further contended that in the present case, the contraband articles were seized not in presence of any Gazetted Officer or any Magistrate. Moreover, the samples which were drawn and sent for chemical examination have not been drawn in presence of the Magistrate and that the same has not been certified by the Magistrate. As such, learned counsel for the appellant submitted that there is a gross violation of the provisions contained under Section 52A and in view of the law laid down by the Hon'ble Supreme Court in Yusuf @ Asif's case (supra), the trial is vitiated.

8. On the contrary, learned counsel for the State, referring to the evidence of the P.W.5 i.e. the I.O., contended before this Court that the contraband articles were seized from the house of the appellant- petitioner. He further contended that the contraband articles have not been seized from the exclusive possession of the present appellant which would require his search and seizure in presence of the Magistrate as provided under Section 42 and 50 of the NDPS Act. He further contended that in view of the evidence of the P.W.5, which has been duly taken note of by the trial court in its judgment, the provisions of Section 52 and 52A of the NDPS Act has been complied with. It was also contended that the P.W.5 has categorically stated that the samples weighing 5 gms. in two packets each were drawn in presence of learned S.D.J.M., Bhubaneswar from the bulk seized quantity of the contraband articles. Learned counsel for the State further contended that on chemical examination by the SDTRL, Bhubaneswar it was confirmed that the seized bulk quantity of the contraband article is brown sugar. Therefore, the trial court has not committed any error in convicting the Petitioner under Section 21(c) of the NDPS Act and imposing sentence thereunder.

9. In reply to the aforesaid contention of the learned counsel for the State, learned counsel for the appellant disputed that the P.W.5 has never said anything of the above nature in his deposition. Therefore, the seizure as well as the drawing of the sample for chemical examination remains under a cloud of doubt. He further contended that on such basis no conviction can be made and entire trial is vitiated as has been held by the Hon'ble Supreme Court in the Yusuf @ Asif's case (supra).

10. On a careful consideration of the submissions made by the

learned counsels appearing for the parties, further examining the provisions relating to the search and seizure as well as evidence in that regard, this Court is of the view that the aforesaid issue can only be ascertained in course of the final hearing of the appeal. However, taking into consideration the fact that the appellant has been sentenced to under for R.I. 10 years and in the meantime he has already undergone imprisonment for a period of 5 years and 4 months and that there is no possibility of the appeal being heard in the near future, it is directed that the appellant-petitioner be released on bail.

11. Further, it is directed that let the appellant-Petitioner be released on bail in T.R. No.26 of 2011 arising out of P.R. No.69/2011-12 of E.I. & E.B. Unit-II, Cuttack by the learned 3rd Additional Sessions Judge, Bhubaneswar on such terms and condition as deemed just and proper by the learned trial court. It is further made clear that violation of any of the conditions likely to be imposed by the court in seisin over the matter shall entail cancellation of the bail application and in such eventuality it shall be open to the learned trial court to take the Petitioner back into custody.

12. With the aforesaid observations/ directions, the I.A. stands disposed of.

13. Heard.

14. This I.A. application has been filed for stay of realisation of fine amount.

15. Heard learned counsel for the appellant as well as learned

counsel for the State.

16. Considering the submissions, it is directed that the realization of fine amount awarded in T.R. No.26 of 2011 arising out of P.R. No.69/2011-12 of E.I. & E.B. Unit-II, Cuttack by the learned 3rd Additional Sessions Judge, Bhubaneswar shall remain stayed till disposal of the appeal.

17. Accordingly, the I.A. stands disposed of.

18. Registry is directed to expedite the preparation of the paper book.

                                                       ( A.K. Mohapatra)
                                                              Judge

Anil





       Digitally Signed                                                   Page 6 of 6.


       Location: High Court of Orissa
       Date: 17-Jan-2025 17:42:20