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
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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,
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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
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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
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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
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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
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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
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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
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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.
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42 of NDPS Act must be subsequently recorded in the
Register prescribed for it and copy thereof shall
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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conviction and the order of sentence 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 are hereby set aside.
Accordingly, the appellants/convicts are
acquitted of the charge and they be set at liberty
forthwith, if their detention is otherwise not required
in any other case.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 13th day of January, 2025/S.Sasmal
Signature Not Verified
Digitally Signed
Signed by: KISHORE KUMAR SAHOO
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 20-Jan-2025 14:42:21
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