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TMI Blog2016 (3) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 20(b)(ii)(C) of N.D.P.S. Act - Non-seizure of original of Ext.14 which was the full report in compliance of section 57 of the N.D.P.S. Act - Held that:- in the column No.5, 6, 7 and 8 where name and address of the witness, points to prove, whether personally detected or on information and order of superior officer are required to be mentioned here have not been filled up. Similarly on the reverse side of C-4 where date and hour of submission of report, explanation of delay, if any in submission, date of receipt of the report in Excise Superintendent’s office and brief history of the case are required to be mentioned and date have been left blank. No endorsement of Excise Commissioner regarding receipt of the report and date is available in Form No.C-4. Nobody has been examined from the office of Commissioner of Excise to prove the receipt of such report. The copy of the report which was sent to the Office of Commissioner of Excise has not been seized. Therefore, Ext.14 is not a full report as envisaged under section 57 of the N.D.P.S. Act and a reasonable doubt is created regarding submission of such report in the office of Commissioner of Excise. Therefore, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n front of Andhra Bank situated at Balugaon Bazar. P.W.4 directed the driver of the vehicle to open the door but he did not comply. P.W.4 requested two persons from among the crowd gathered namely Surendra Swain (P.W.1) and Tanuj Kumar Panda (P.W.2) to remain present for the purpose of search of the vehicle and both of them accepted the request of P.W.4., who again directed the driver of the vehicle to open the door and this time the driver opened the door and both the appellants were found inside the vehicle. Appellant Prasanta Kumar Behera was the driver of the vehicle and appellant Dinabandhu Moharana was the owner of the vehicle. P.W.4 found the smell of ganja emitting from inside the vehicle. P.W.4 gave his identity to both the appellants and expressed his intention to search the vehicle. He took personal search of both the appellants after giving notices to both of them under section 50 of the N.D.P.S. Act. Both the appellants agreed to be searched by P.W.4., who after observing all the formalities searched the vehicle in presence of P.W.1 and P.W.2 and recovered seventeen gunny bags containing ganja. On weighment, out of the seventeen gunny bags, three gunny bags were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle. On the next day i.e. on 13.06.2008, P.W.4 took the appellants and the vehicle from Cuttack to Kharvela nagar police station, received the gunny bags from the Malkhana-in-charge and found the seals were intact. P.W.4 produced the appellants, seized articles and relevant documents before the learned District and Sessions Judge, Khurda at Bhubaneswar. P.W.4 made a prayer to the Court for collecting sample from each of the gunny bags for chemical examination. As per the direction of the learned District Judge, the gunny bags were produced before S.D.J.M, Bhubaneswar who collected samples from each gunny bag which was duly sealed by learned S.D.J.M., Bhubaneswar. The sealed sample packets along with requisition were produced by P.W.4 before the Chemical Examiner. The broken seals were kept inside an envelope which was also sealed with the seal impression of the S.D.J.M, Bhubaneswar. The chemical examiner to Govt. of Orissa, S.D.T. R.L., Bhubaneswar after analysis gave his opinion under Ext.11 that all the seventeen samples produced before him were found to be ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act. On the next day of seizure, P.W.4 intimated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the intimation received from R.T.O., Bhubaneswar and Ext.14 is the report submitted to the Commissioner of Excise in Form No. C/4. The prosecution marked one envelope containing broken seals as M.O.I and one gunny bag containing ganja as M.O.II. 4. The defence plea of the appellants is that on the date of occurrence, both of them were returning from Berhampur and they were at Balugaon petrol pump to fill up oil and at that time some persons who were in civil dresses came there and took their signatures in some blank papers and foisted a case against them. One witness namely Pranab Kumar Panigrahi who was working as officer-in-charge of Balugaon Police station at the relevant point of time was examined as D.W.1 who stated that the station diary entry of the date of occurrence did not reveal that the excise people had come to the police station with contraband articles like ganja with any accused persons. The defence exhibited the station diary entry of Balungaon Police station as Ext.A. 5. The learned Trial Court formulated the point for determination as to whether on 12.06.2008 at about 1.30 p.m, the appellants were transporting ganja (Cannabis) and seventeen gun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) of the Criminal Procedure Code as he had not called two or more independent and respectable inhabitants of the locality to remain present when the offending vehicle was searched. It is further contended that section 52 (3) of the N.D.P.S. Act has not been complied with inasmuch as after the appellants were arrested, they were not forwarded to the Officer in-charge of Balugaon Police Station with the seized ganja. The learned counsel emphasized that the statement of P.W.4 that on the date of occurrence when they produced the appellants, the vehicle and the seized gunny bags in Balugaon Police Station, the Inspector in-charge and the other officers were absent is not correct in view of the statement of D.W.1, the Officer in-charge of Balugaon Police Station that the station diary did not reveal that the Excise people had come to the police station with contraband articles like ganja and with the appellants. The learned counsel further emphasized that even though several police stations were there by the side of N.H. No.5 from Balugaon Police Station to Bhubaneswar but the contraband articles and the appellants were not produced in any of those police stations which create grave do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the sample packets cannot be ruled out. While concluding his argument, the learned counsel emphasized that the punishment being stringent in nature, it was the duty of the Investigating Officer to comply with the provisions of the N.D.P.S. Act in its letter and spirit and having not done so, benefit of doubt should be extended in favour of the appellants. Mrs. Saswat Patnaik, learned Addl. Government Advocate on the other hand placed the relevant parts of the impugned judgment and contended that the learned Trial Court has dealt with all the aspects and it cannot be said that there is any illegality or infirmity in the impugned judgment and when the appellants were found transporting huge quantity of ganja in the vehicle which were seized by P.W.4 in presence of the official and independent witnesses, the same should be accepted and merely because independent witnesses did not support the prosecution case, that cannot be a ground to throw away the entire case in view of the settled position of law that in such type of cases the version of official witnesses can be acted upon to adjudicate the guilt of the accused. 7. Law is well settled that the provisions of sections 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is at a distance of 5 kms. away from Balugaon and similarly P.W.2 states that his village is at a distance of about 1 km. away from petrol pump at Balugaon. It was urged that when it was a market area and number of shops, bank and two petrol pumps were available in the locality, P.W.4 should have taken the assistance of the persons of the locality while conducting search and seizure and not cited two persons like P.W.1 and P.W.2 as witnesses who are neither of that locality nor they are respectable persons. Adverting to the contentions raised, it is found that the search and seizure were made on 12.6.2008 in the afternoon. The time and place was such that P.W.4 could have easily got independent and respectable persons of the locality as witnesses to the search and seizure. The location of the spot was at Balugaon market which was also nearer to bank and petrol pumps. P.W.4 states that he has not mentioned about the status of P.W.1 and P.W.2. There is no evidence that P.W.4 approached any independent inhabitants of the locality to be the witnesses but they refused or it was such an odd time that it was practically impossible for P.W.4 or his team to procure the attendance of ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be a ground to discard the prosecution case in toto. On the other hand if the statements of the official witnesses relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence and determine whether the evidence of the Police Officer/Excise Officer is believable after taking due care and caution in evaluating their evidence. 8. It is the prosecution case that on the date of occurrence P.W.4 had deputed two excise constables namely, Rudra Charan Mohapatra and Pradip Kumar Behera to remain present at the railway level crossing situated outside Balugaon Town towards Berhampur to inform him over mobile phone about the movement of the suspected vehicles and that basing on their information, the offending vehicle was detained in front of Andhra Bank situated at Balugaon Bazar. P.W.4 stated that after the vehicle was detained and ganja was found inside, he telephoned to the two excise constables who were deputed to perform duty nea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... station, the Officer in charge of such police station has to follow the procedure laid down under section 55 of the N.D.P.S. Act. P.W.4 states that he took the appellants, the vehicle and the seized gunny bags containing ganja to Balugaon Police Station but found one constable to be present in the Police Station who reported that IIC and other police officers had left for duty and therefore he brought the accused persons, the vehicle along with the gunny bags containing ganja to Bhubaneswar. In that respect the evidence of D.W.1 who was the Officer in-charge of Balugaon Police Station at the relevant time is very much important. D.W.1 has stated that from 9.30 a.m. of 12.06.2008 to 9.00 a.m. of 13.06.2008, Sri S.N. Purohit, A.S.I. of Police was in charge of the station diary but the station diary dated 12.06.2008 does not reveal that excise people had come to the police station with contraband articles like ganja and with any accused persons. He further stated that had any such instance of coming to the police station with ganja and accused persons was there, there would have been entry in the station diary entry Ext.A. Thus the evidence of P.W.4 regarding production of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have handed over the gunny bags containing ganja to the Inspector-in-Charge of Kharavel Nagar Police Station and the Malkhana in-charge of Kharavel Nagar Police Station received the gunny bags as per the direction of the Inspector-in-Charge on the date of occurrence and kept it till next day when P.W.4 again received the same back but neither the Inspector-in-Charge nor Malkhana in-charge of Kharavel Nagar Police Station has been examined nor the Malkhana register has been seized and produced in Court to substantiate the prosecution case that the seized ganja was kept in safe custody after seizure till it was produced before the Court. In case of Sinic Patricia Vrs.- State reported in (1994) 7 Orissa Criminal Reports 277, it is held that it is for the prosecution to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets during the retention of those packets at the police station and the seized articles were very articles produced before the Magistrate for sending them to the Chemical Examination. P.W.4 is the Officer who conducted search and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated. 12. In this view of the legal position, as crystallized in Megna Singh's case (supra), the High Court was justified in acquitting the accused. In view of the principle decided by the Hon ble Supreme Court in case of Rajangam (supra) case, P.W.4 should not have investigated the case as he conducted search and seizure of the contraband articles. The contentions were raised by the learned counsels for the appellants that even though the samples were handed over to P.W.4 on 13.06.2008 by the Court but P.W.4 kept the samples with him and produced it at the S.D.T R.L. on 17.06.2008 and therefore the chance of tampering with the same cannot be ruled out. P.W.4 has stated that the samples were handed over to him in the evening hours on 13.06.2008 and thereafter there were three Government Holidays for which he kept the samples with him and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the N.D.P.S. Act and a reasonable doubt is created regarding submission of such report in the office of Commissioner of Excise. 9. In view of the glaring inconsistencies in the evidence of prosecution witnesses, non-compliance of provisions under section 100(4) of Cr.P.C., sections 52 (3) and 57 of the N.D.P.S. Act, absence of any clinching materials that the seized articles were kept in safe custody till its production in the Court, nonexamination of relevant witnesses, non-production of brass seal in Court and other suspicious features as discussed above, I am of the view that it would be very risky to uphold the impugned judgment and order of conviction. 10. Accordingly, Criminal Appeal No. 210 of 2010 filed by appellant Prasanta Kumar Behera and Criminal Appeal No. 213 of 2010 filed by appellant Dinabandhu Moharana are allowed. The impugned judgment and order of conviction and sentence passed by the learned Trial Court is hereby set aside and the appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellants who are in jail custody shall be released forthwith if their detention is otherwise not required in any other case. Lower Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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