Chand Mohammad vs State Of Odisha
2025 Latest Caselaw 5202 Ori

Orissa High Court

Chand Mohammad vs State Of Odisha on 21 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
     CRLA NO.734 of 2024 & JCRLA NO.93 of 2024

   (An appeal U/S.374(2) of the Code of Criminal
   Procedure, 1973 against the judgment passed by Dr.
   Indu Sharma, 1st Additional Sessions Judge-Cum-Special
   Judge (NDPS), Berhampur in 2(a)CC Case No.110 of
   2022 (N) arising out of Excise EI & EB (SD), Berhampur,
   Ganjam PR No.827 of 2022-23).

   Chand Mohammad                       ...       Appellant
   (In CRLA No.734 of 2024)
                        -versus-
   State of Odisha                      ...    Respondent

   Mohammad Akil                        ...       Appellant
   (In JCRLA No.93 of 2024)
                        -versus-
   State of Odisha                      ...    Respondent

   For Appellants       :   Mr. S.K. Dash, Advocate
                            (In CRLA No.734 of 2024)
                            Mr. K. Nayak, Amicus Curiae
                            (In JCRLA No.93 of 2024)
   For Respondent       :   Mr. A.K. Apat, Addl. PP

       CORAM:
                   JUSTICE G. SATAPATHY

  F DATE OF HEARING &JUDGMENT:21.03.2025(ORAL)

G. Satapathy, J.

1. Since these two appeals arise out of one

conviction in the same case record, both the appeals

are heard together and disposed of by way of this

common judgment.

2. The appellants Chand Mohammad in CRLA

No.734 of 2024 and Mohammad Akil in JCRLA No.93 of

2024 assail their conviction and sentence as recorded

by the learned 1st Additional Sessions Judge-Cum-

Special Judge (NDPS), Berhampur, Ganjam by the

impugned judgment dated 19.04.2024 passed in

2(a)CC Case No.110 of 2022 (N).

By the aforesaid impugned judgment, the

appellants have been convicted for commission of

offence punishable U/Ss.20(b)(ii)(C) of NDPS Act and

sentenced to undergo Rigorous Imprisonment (RI) for

ten(10) years with payment of fine of Rs.1,00,000/-

(Rupees One Lakh), in default whereof, to undergo RI

for a further period of one(1) year with the benefit of

set off of the pre trial detention against the substantive

sentence.

3. The prosecution case in brief is on

22.11.2022, PW2-the Inspector of Excise, EI & EB Unit-

II (SD), Berhampur and staff while performing

patrolling duty in Aska road, Berhampur noticed one

while Tata Sumo Gold bearing Regd. No.MP-04TB-1610

at Ankushpur going speedily. Accordingly, PW2 and

staff detained the Tata Sumo vehicle, recovered

Contraband Ganja in two separate jerry bags along with

the appellant Chand Mohammad who was driving the

vehicle and the appellant Mohammad Akil as the helper

and PW2, thereafter, by procuring local witness PW3

weighed and seized the Contraband Ganja by collecting

samples from it. PW2 also sealed the Contraband Ganja

by her personal brass seal and handed it over to PW1-

the Excise Constable and arrested the accused persons

after observing all formalities, so also seized the Tata

Sumo Gold vehicle and other documents and forwarded

the appellants to the Court along with the seized

articles which on weighment had come to 80Kgs.

Further, PW2 successfully prayed to the Court for

drawing of samples, and accordingly, the learned SDJM,

Berhampur drew the samples by the order of the

learned Special Judge and the samples were sent to

Assistant Chemical Examiner, Divisional Excise

Chemical Testing Laboratory (SD) (DECTL), Berhampur.

3.1. On this incident, an advance Prosecution

Report (PR) was drawn which subsequently on

investigation culminated in submission of final PR

No.827 of 2022-23 by PW2, which ultimately resulted in

trial in the present case after the appellants pleaded

not guilty to the charge for commission of offence

U/Ss.20(b)(ii)(C) of NDPS Act.

3.2. In support of its case, the prosecution

examined altogether 3 (three) witnesses vide PWs.1 to

3; proved 23 (Twenty-three) documents under Exts.P1

to P-23 and identified 3 (three) material objects under

MOI-III as against no evidence whatsoever by the

defence. The plea of the appellants in the course of trial

was denial simplicitor and false implication.

3.3. After analyzing the evidence on record

upon hearing the learned counsel for the parties, the

learned trial Court convicted the appellants for

commission of offence punishable Under Section

20(b)(ii)(C) of the NDPS Act and sentenced each of

them to the punishment indicated in the first

paragraph. Being aggrieved with the judgment of

conviction and sentence, the appellants have preferred

two separate appeals.

4. In the course of hearing of these two

appeals, Mr. Soubhagya Kumar Dash, learned counsel

for the appellant-Chand Mohammad in CRLA No.734 of

2024 submits that not only the prosecution evidence is

shaky, but also it has failed to prove the charge against

any of the appellants and the prosecution evidence on

record never establishes any of the mandatory

compliance as required under NDPS Act. Mr. Dash

further submits that the prosecution has failed to

comply the provisions of Sections 42 and 52-A of NDPS

Act, which is clearly appearing from the evidence and,

therefore, the conviction of the appellants being

unsustainable is required to be quashed/set-aside. In

echoing the aforesaid submission, Mr. Karunakar

Nayak, learned counsel appearing as Amicus Curiae for

the appellant Mohammad Akil in JCRLA No.93 of 2024

submits that the independent seizure witness has not at

all supported the prosecution case and the evidence of

other official witnesses does not inspire confidence and,

thereby, the appellant should have been acquitted. It

is, accordingly, prayed for the appellants to acquit them

of the charge by allowing the appeals.

4.1. On the other hand, Mr. A.K. Apat, learned

Additional Public Prosecutor, however, submits that the

evidence on record clearly establishes the recovery of

Contraband Ganja from the conscious possession of the

appellants and, thereby, the appellants have been

rightly convicted for the offence. It is, further,

submitted by the learned Additional Public Prosecutor

that since the recovery of the Contraband Ganja having

been established against the appellants, the onus of

proving their innocence squarely rest on them in view

of the provision of Section 54 of the NDPS Act which

has not at all been discharged by the appellants and,

therefore, the conviction of the appellants cannot be

faulted with. Accordingly, learned Additional Public

Prosecutor prays to dismiss the appeal.

5. After having considered the rival

submissions upon perusal of record, since the

appellants assail the impugned judgment of conviction

by praying to acquit them of the charge for the offence

U/Ss.20(b)(ii)(C) of NDPS Act, this Court has a duty to

re-appreciate the evidence on record to find out the

legal sustainability of the impugned judgment. On

adverting to the evidence on record, it appears that

PW3 being the independent witness to seizure has not

at all supported the prosecution case and his cross-

examination by the prosecution yield no result, but the

cross-examination of PW3 favours the defence

inasmuch as PW3 has admitted in his cross-

examination that he signed on blank printed papers and

nothing was seized in his presence from the conscious

possession of the appellants on the date of occurrence

and he signed the papers at the behest of Excise

Officials.

6. There is no quarrel over the position of law

that the evidence of official witness deserves equal

importance provided it is worthy of acceptance and in

this case, after the independent witness of PW3, the

prosecution case entirely built upon the evidence of

official witnesses of PWs.1 and 2, who are none other

than the raiding officials and one of them i.e. PW2 has

conducted the investigation. On coming to the evidence

of PW2, it transpires that the Contraband Ganja was

transported in a Tata Sumo Gold vehicle bearing Regd.

No.MP-04-TB-1610 and the appellants are found as

occupants of said vehicle, but the admitted evidence of

the prosecution case is that the Excise Officials while

performing patrolling duty had detected the Contraband

Ganja which is a chance recovery, but it appears that

the learned trial Court has based conviction on the

basis of evidence of witnesses with regard to

possession of the Contraband articles by the appellants.

However, the seized Contraband articles have never

been produced before the Court. In order to overcome

the prove of recovery of Contraband Ganja, the

prosecution has taken the recourse of Section 52-A of

the NDPS Act by bringing evidence on record by way of

exhibiting the letter of SDJM, Berhampur along with

destruction certificate under Exts.P-21 and P-22. The

fact remains that Section 52-A of the NDPS Act

provides the procedure for disposal of seized Narcotic

Drugs and Psychotropic Substance and Section 52-A(4)

of the NDPS Act lays down that every Court trying an

offence under the Act shall treat the inventory, the

photographs (Narcotic Drugs and Psychotropic

Substance, Control Substance or conveyance) and any

list of samples drawn under Sub-Section(2) and

certified by the Magistrate as primary evidence in

respect of such offence. Section 52-A(2) of NDPS Act

lays down interalia for any Magistrate to certify the

correctness of the inventory so prepared; or certifying

the photographs of such Drugs or substances taken in

his presence as true; or certifying the correctness of

any list of samples so drawn in his presence. It is,

accordingly, stated in Section 52-A(2) of NDPS Act that

where any narcotic drugs, psychotropic substances,

controlled substances or conveyances has been seized

and forwarded to the officer-in-charge of the nearest

police station or to the officer empowered under

Sec.53, the officer referred to in Sub-section (1) shall

prepare an inventory of such narcotic drugs,

psychotropic substances, controlled substances or

conveyances containing such details relating to their

description, quality, quantity, mode of packing, marks,

numbers or such other identifying particulars of the

narcotic drugs, psychotropic substances, controlled

substances or conveyances or the packing in which they

are packed, country of origin and other particulars as

the officer referred to in Sub-section (1) may consider

relevant to the identity of the narcotic drugs,

psychotropic substances, controlled substances or

conveyances in any proceedings under this Act and

make an application, to any Magistrate for the purpose

of:-

"(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn."

Further, Section 52-A(3) of NDPS Act also

makes it very clear that where an application is made

under Sub-section (2), the Magistrate shall as soon as

may be allow the application.

7. Appreciating the evidence on record with

regard to recovery and production of Contraband Ganja

before the Special Court and drawing samples of it on

the backdrop of the aforesaid provision of Section 52-A

of the NDPS Act to receive the same as a primary

evidence in the trial, this Court considers it apt to

extract the relevant evidence of PW2 which has been

stated in paragraphs-6 and 7 of the deposition, which

reads thus:-

"6. As per direction of the Special Judge, the article was produced before the SDJM, Berhampur. "The SDJM verified the seal of jerry bag and broke upon the seal and drew 2 sample packets of 50 grams from 2 nos. of jerry basta marked A & B."

7. As per direction of Court, I drew two packets each containing 50 grams of ganja and samples marked as „A1 to B1‟ and the duplicate packets marked as „A2 to B2‟. The sample packets along with the forwarding letter were sent to DECTL, Berhampur for chemical examination through Constable Basant Ku. Barik (PW1)."

The aforesaid evidence as narrated above

does not disclose the manner in which the samples

were collected nor it reveal that the learned SDJM had

certified the correctness of the inventory so prepared

nor it discloses taking of the photographs of such

Contraband in presence of the learned SDJM and

certifying the photographs as true. There is also no

evidence to certify the correctness of any list of

samples so drawn. The evidence on record, however,

does not disclose about the production of recovered

and seized Contraband articles before the Court

concerned, much less the remaining samples after

sending the representative samples to DECTL,

Berhampur was ever produced before the Court.

8. The primary evidence for proving

possession of the Narcotic Substance would always be

the seized substance itself. In absence of certification

as required under 52-A of the NDPS Act to get over the

production of original seized Contraband articles, the

prosecution is not helpless to prove the recovery and

seizure of Contraband articles which can be done either

by producing the seized Contraband articles or

examining the witness to the recovery, but in this case

the independent witness to the search, seizure and

recovery has become hostile to the prosecution case

and even his examination by prosecution with the leave

of the Court yield no result to prove the search, seizure

and recovery. In this case, the prosecution has not led

any evidence to prove the destruction of seized

Contraband articles by establishing the compliance of

provision of Sec. 52-A of the NDPS Act except by

exhibiting two documents under Exts. P-21 and P-22

which are in fact a letter issued by learned SDJM,

Berhampur indicating furnishing of original certificate

under Sec. 52-A of NDPS Act to the Special Judge,

Berhampur and the certificate purportedly issued under

Sub-Section 3 of Sec. 52-A of the NDPS Act, but Ext. P-

22 refers to a enclose inventory, digital photographs

and video taken by Smt. R.Santoshi Reddy, however,

neither any inventory nor digital photographs nor video

has been produced before the Court in addition the said

R.Santoshi Reddy has not been examined by the

prosecution to establish this fact. In the situation, mere

exhibiting the certificate without anything more such

as, the inventory so prepared of seized materials which

should contain description, quantity, mode of packing

(including mode of conveyance), marks, numbers such

other identifying particulars; the photographs taken in

presence of Magistrate with his certificate and the

samples so drawn with certification of Magistrate, is not

sufficient proof of compliance of Sec. 52-A of the NDPS

Act and in absence of evidence justifying compliance of

Sec. 52-A of the NDPS Act, the destruction or disposal

of the seized Contraband articles cannot be accepted,

which assumes great significance casting serious doubt

in the genuineness of the prosecution case, especially

when neither the seized Contraband Ganja nor the

remaining samples after dispatch of the samples to

Chemical Laboratory are produced before the Court,

inasmuch as no explanation has been offered by the

prosecution in this regard. It is once again reiterated

that mere drawing of samples in presence of Magistrate

without anything more as required is not sufficient and

substantial compliance of Sec. 52-A of the NDPS Act.

9. In Bharat Aambale vrs. State of

Chhatisgarh; 2025 SSC Online SC 110, the Apex

Court with regard to compliance of Sec. 52-A of the

NDPS Act in Paragraph-35 has held thus:-

"What this provision entails is that, where the seized substance after being forwarded to the Officer empowered is inventoried, photograph and thereafter samples are drawn therefrom as per the procedure prescribed under the said provisions and the Rules/Standing Order(s), and the same is also duly certified by a Magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word "shall" indicates that it would mandatory for the Court to treat the same as primary evidence if the twin conditions are fulfilled being (i) that the inventory, photographs and samples drawn are certified by the Magistrate AND (ii) that the Court is satisfied that the entire process was drawn in consonance and substantial compliance with the procedure prescribed under the provision and its Rules/Standing Order(s)".

It is, however, true that the Apex Court in the aforesaid

decision has further observed that even where the bulk

quantity of the seized materials is not produced before

the Court or happens to be destroyed or disposed of in

contravention of Sec. 52-A of the NDPS Act, the same

would be immaterial and have no bearing on the

evidentiary value of any inventory, photographs or

samples of such substance that is duly certified by a

Magistrate and prepared in terms of the said provision.

It is more than clear in this case that the prosecution

has brought no evidence to show any inventory or

photographs taken by it, so also no Magistrate has

certified any photographs or inventory so prepared or

list of samples so drawn which are mandates of

compliance of Sec. 52-A of the NDPS Act. Law is very

clear that before any proposed disposal/destruction of

the seized Narcotic Drugs, the mandate of Sec. 52-A of

the NDPS Act requires to be duly complied with starting

with an application to that effect and a Court should be

satisfied with such compliance while deciding the case,

the onus is entirely on the prosecution in a given case

to satisfy the Court where such issue arises for

consideration. In this case, the same has not been done

and there is absolutely no compliance of Sec. 52-A of

the NDPS Act which renders the prosecution case

vitiated.

10. In addition, it is found from the evidence of

PW2 that drawing and sending of samples on the same

day to DECTL, Berhampur i.e. on 22.11.2022, but the

cross-examination of PW1 at paragraph-15 discloses

that he had kept the sample packets in the custody of

the IO overnight before producing it to the office of

DECTL, Berhampur for chemical examination. This only

adds to the suspicion inasmuch as when the samples

were drawn and handed over to PW1 for its deposit at

DECTL, Berhampur, it was never meant to be kept

under the custody of the IO. Additionally, the CE Report

under Ext.P20 discloses about receipt of samples on

23.11.2022 and, therefore, this Court is of the

considered view that the custody of the samples was

not properly explained to rule out any suspicion and

tampering inasmuch as to how the samples were sealed

has not been revealed in evidence of PW2 because it is

not stated by him whether the samples were sealed or

not. Moreover, it is testified by PW1 that after weighing

of Ganja, the informant kept the Ganja in the bags and

resealed by affixing paper slip with the brass seal of

Gitanjali Sahu (PW2) having signatures of the accused

persons, witnesses and informant and such brass seal

was given in his zima after due execution of zimanama,

but such brass seal was never produced before the

Court which only adds to the cause of suspicion. Law is

very clearly well settled that when punishment

prescribed for offences is higher, the proof must be

stricter and the prosecution has to produce evidence to

eliminate all suspicion. Further, the Chemical

Examination report under Ext.P-20 does not disclose as

to whose seal was affixed and how it is verified which

further contributes to the discrepancies and, therefore,

the safe custody of the samples or seized Ganja was

not established in consonance with Section 55 of NDPS

Act which provides for the safe custody of the

Contraband articles. Since the prosecution has not

established any semblance of compliance of Sec. 52-A

of the NDPS Act and no Contraband articles has been

produced in the Court during trial, the contention as

raised by the learned Addl. PP to place the burden on

the appellants-accused to rebut the presumption of

conscious possession of Contraband articles in terms of

Sec. 54 of the Evidence Act merits no consideration.

11. From a cumulative analysis of evidence on

record and discussion made hereinabove, this Court is

of the considered opinion that neither the provision of

Sec. 52-A of the NDPS Act has been complied with nor

the recovery of the Contraband Ganja from the

exclusive possession of the appellants has been proved

through any independent witness nor the safe custody

of the Contraband articles has been established, which

assumes great significance on the face of admitted

evidence of keeping the custody of the samples with

PW2-the raiding officer overnight without any

explanation and it only leads to an inference that

prosecution has not been able to prove its case against

the appellants beyond all reasonable doubt by leading

clear, cogent and unimpeachable evidence. The only

consequence therefore remains is that the guilt of the

appellants has not been established for the offence

U/Ss.20(b)(ii)(C) of NDPS Act in the standard of proof

beyond all reasonable doubt.

12. In the result, CRLA No.734 of 2024 and

JCRLA No.93 of 2024 stand allowed on contest, but in

the circumstance, but there is no order as to costs.

Consequently, the impugned judgment of conviction

and order of sentence passed by the learned 1st

Additional Sessions Judge-Cum-Special Judge (NDPS),

Berhampur, Ganjam in 2(a)CC Case No.110 of 2022 (N)

are hereby set-aside.

Since the appellants are in custody, they

be set at liberty forthwith, if their detention is otherwise

not required in any other case. Further, the warrant of

release on appeal in Form No.(M)78 of GR & CO,

(Criminal) Vol-II be immediately sent to the Officer-in-

Charge of the concerned jail through e-mail or any

other faster communication mode in view of the Rule

155 of the GR & CO, (Criminal) Vol-I.

(G. Satapathy) Judge

Location: High Court of Orissa

Orissa High Court, Cuttack, Dated the 21st day of March, 2025/Subhasmita