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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 ..... at about 1.00 to 1.30 p.m. while P.W.4 Pradipta Ranjan Pattnayak, Inspector-in-Charge, E.I & E.B., Unit-I, Cuttack was performing patrol duty with other Excise staff at Balugaon Bazar area and checking suspected vehicles indulged in transporting excisable articles, he deputed two of the Excise Constables namely Rudra Charan Mohapatra and Pradeep Kumar Behera to remain present at Railway level crossing situated outside Balugaon Bazar towards Berhampur to inform him over mobile phone about the movement of suspected vehicles. According to the information of those two Excise Constables, P.W.4 checked two to three vehicles but could not find any excisable articles in those vehicles. At about 1.30 p.m., as per information received from the aforesaid Excise Constables, P.W.4 detained one white coloured TATA Safari bearing Registration No.OR-02-N-1368 on suspicion in 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 acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants, the vehicle and seized gunny bags containing ganja to Balugaon Police Station which is the nearest police station to the place of seizure. P.W.4 found only one Constable present in the police station who reported that the Inspector-in-charge and other police officers have left for duty. P.W.4 then brought the appellants, the vehicle along with gunny bags to Bhubaneswar for production before the District and Sessions Judge, Khurda at Bhubaneswar. On reaching at Bhubaneswar, P.W.4 found that the concerned Court was closed and therefore he came to Kharvel nagar police station and gave requisition to the I.I.C. of the said police station to keep the gunny bags in the police station Malkhana. The appellants and the vehicle were taken to the Headquarters at Cuttack as the IIC, Kharvel nagar police station did not agree to keep the appellants and the vehicle. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the occupants. He is the Investigating Officer of the case. The prosecution exhibited fourteen documents and also proved two material objects. Ext.1/2 is the seizure list, Ext.2/2 and Ext.3/2 are the notices served on the appellants Dinabandhu Moharana and appellant Prasanta Kumar Behera respectively under section 50 of the N.D.P.S. Act, Ext.4/2 is the rough sketch map, Ext.5/1 is the Zimanama, Ext.6 is weighment chart of gunny bags containing ganja, Ext.7 is the statement of appellant Dinabandhu Moharana, Ext.8 is the statement of appellant Prasanta Kumar Behera, Ext.9 is the requisition given by P.W.4 to IIC, Kharvel nagar police station, Ext.10 is the requisition of SDJM, Bhubaneswar to chemical examiner, S.D.T. & R.L, Ext.11 is the chemical examination report, Ext.12 is the requisition given by P.W.4 to R.T.O., Bhubaneswar, Ext.13 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 retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same inspires confidence. It is further held that the non-examination of Excise Constables does not affect the credibility of the prosecution case. The learned Trial Court further held that the appellant Prasanta Kumar Behera was the driver and appellant Dinabhadnu Moharana was the owner of the vehicle which was transporting huge quantity of ganja i.e., 342 kgs. and accordingly the appellants were convicted under section 20 (b)(ii)(C) of the N.D.P.S. Act. 6. Mr. Sangram Kumar Das, learned counsel appearing for appellant Prasanta Kumar Behera contended that the two material witnesses namely Rudra Mohapatra and Pradeep Kumar Behera on whose information the offending vehicle was detained and searched were not examined during trial. While conducting search, P.W.4 has not complied with the provisions laid down under section 100 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants and the vehicle to Cuttack is suspicious. The Malkhana register of Kharavel nagar Police Station should have been produced to substantiate that the contraband articles were kept in safe custody. The learned counsel further contended that the statement of P.W.4 that he sent the full report in compliance with section 57 of the N.D.P.S. Act to the Commissioner of Excise vide Ext.14 should not be accepted as the original was not seized from the office of the Commissioner. The learned counsel further submitted that when P.W.4 received the sample packets from S.D.J.M., Bhubaneswar on 13.6.2008, he should have produced it immediately before the chemical examiner and not on 17.6.2008 and since P.W.4 kept the sample packets with him for about four days without delivering to the chemical examiner, the possibility of tampering with 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. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is entrusted by the officer in charge to carry out such search by an order in writing, then such subordinate officer has also to follow the procedure laid down under section 100 Cr.P.C. Even though section 100 Cr.P.C. states about the search of a closed place but in view of definition of 'place' as per section 2 (p) of Cr.P.C., it includes a house, building, tent and vessel. Contentions were raised by the learned counsel for the appellants that the independent witnesses P.W.1 and P.W.2 are not the inhabitants of the locality in which place the vehicle was detained and searched and there is also no evidence that they were respectable persons and therefore section 100(4) of the Cr.P.C. has not been followed. It is the further contentions of learned counsel for the appellants that P.W.1 has stated that his village 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natures were obtained on blank papers near Hanuman Mandir which was situated at a distance of about 1 km. away from Andhra Bank, Balugaon Branch and he put his signatures being directed out of fear and he had not seen the accused persons when his signatures were taken. Similarly P.W.2 has stated that the contents of the papers which were written were not read over and explained to him before he was asked to sign and he did not voluntarily put his signature but on being compelled, he signed on the papers and he was also threatened. P.W.1 is a cultivator and P.W.2 was having a hotel as per their statement. Therefore the evidence of these independent witnesses are no way helpful to the prosecution and accordingly those are to be discarded. However it is the settled principle of law that even though the independent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons and seized articles were produced in Court which is evident from the order sheet. Handing over the brass seal to an independent, reliable and respectable person and asking him to produce it before the Court at the time of production of the seized articles in Court for verification are not the empty formalities or rituals but is a necessity to eliminate the chance of tampering with the articles. Sub-section (3) of section 52 of the N.D.P.S. Act states that every person arrested and article seized under subsection (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to the officer-incharge of the nearest Police Station or the officer empowered under section 53 of the N.D.P.S. Act. Once the seized articles are produced in the nearest police 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. P.W.4 stated that the ganja found inside the bags were mixed with leaves, seeds and small branches but he has not noted the percentage of seeds, leaves and branches of the seized ganja. In view of definition of "ganja" under section 2(iii)(b), the seeds and leaves when those were not accompanied by the tops should have been excluded. Even though the same was not done in this case before taking the weight but in view of the huge quantity of ganja seized in this case, it would not create much difference for assessing the 'commercial quantity.' Even though P.W.4 stated to 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 Khara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In another case in Balasundaran v. State 1999 (113) ELT 785 (Mad), the Madras High Court took the same view. The relevant portion reads as under: 16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus I am of the view that 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. 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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