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TMI Blog2018 (3) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... within the definition of "evidence" as contained in section 3 of the Evidence Act. It cannot be treated as substantive evidence. Law is well settled that the Court cannot start with confession of a co- accused person. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. In view of the glaring inconsistencies in the evidence of prosecution witnesses, absence of clinching evidence relating to compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, absence of any cogent materials that the seized articles along with sample packets were kept in safe custody till its production in the Court - it would be very risky to uphold the impugned judgment and order of conviction in respect of the appellants Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda under section 20(b)(ii)(C) of the N.D.P.S. Act. Appeal allowed. - CRLA No. 98 Of 2012, CRLA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Act and sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of ₹ 2,00,000/- (rupees two lakhs only), in default, to undergo R.I. for five years. Though co-accused Suchi @ Suchit Sahoo also faced trial along with the appellants under similar charges and was also found guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and accordingly sentenced by the learned trial Court and he preferred a separate appeal bearing CRLA No.124 of 2012, since the said accused absconded while on interim bail, his appeal was delinked from the present appeals as per the order dated 26.10.2016. Since all the appeals arise out of a common judgment, with the consent of the parties, those were heard analogously and disposed of by this common judgment. 2. The prosecution case, as per the first information report (Ext.30) lodged by Sri Trinatha Mishra (P.W.14), Inspector in charge of Jarada Police Station, in short, is that on 06.09.2009 at about 1.00 p.m., he received reliable information to the effect that ganja was being transported in three vehicles i.e. TATA SUMO, INDICA Car and SANTRO Car from Vishakapatnam side towards Bhubaneswar. He entered the said fact in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo (2) Kailash Ch. Panda (appellant in CRLA No.330 of 2012). The persons present inside the INDICA Car disclosed their identities as Trilochan Sahoo (appellant in CRLA No.123 of 2012) and Subash Mohapatra (appellant in CRLA No.198 of 2012). The person present inside the TATA SUMO disclosed his identity as Balia @ Rama Krushna Sahoo (appellant in CRLA No.98 of 2012). P.W.14 asked them in writing whether they wanted to be searched in presence of Gazetted police officer or Executive Magistrate but all of them gave their written willingness/consent to be searched in presence of the Executive Magistrate. Before search, the patrolling party members, Executive Magistrate and the independent witnesses gave their personal search to them and accordingly, search lists were prepared. Then the personal search of the accused persons were taken after bringing them from the vehicles. During personal search, two NOKIA 6030 sets and one E-Touch China made Mobile phone were found with Suchi @ Suchit Ku. Sahoo and NOKIA (1650 Model) set found with Kailash Ch. Panda (appellant in CRLA No.330 of 2012) and old NOKIA mobile set with Subash Mohapatra (appellant in CRLA No.198 of 2012). When the TATA Sumo v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TATA SUMO car, opened it in presence of the witnesses and Executive Magistrate, Chikiti and found ganja inside it. He made homogeneous blending of all the ganja and it was weighed and found to be 346 kg. 800 grams (three hundred forty six Kgs. and eight hundred grams). The ganja was packed in eighteen separate bags and those were marked as Exts.J to Z and A1. He prepared samples of 250 grams in two polythene packets each, sealed it and marked as Exts.3 and 4. The empty polythene and gunny bags were kept in another bag and marked as Ext.A2. P.W.14 then brought out nine polythene packets from the SANTRO car and opened it and those packets were found to be containing ganja. After homogeneous blending, the ganja were kept in four bags and marked as Exts.A3 to A6 and the total weight became 62 kg. 300 gm. He prepared two sample packets of 250 gms. each and marked it as Exts.5 and 6. The empty polythene and gunny bags were kept in a separate bag and marked as Ext.A7. It is further stated in the F.I.R. that all the bags containing ganja and marked as Exts.A to Z and A1 to A7 were stitched and sealed with the personal brass seal of P.W.14. The sample ganja were first packed in po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Suchi @ Suchit Sahoo and Kapila Sahoo. P.W.14 made over the charge of investigation to Biranchi Prasad Dehury (P.W.16), S.D.P.O., Chikiti on 07.09.2009. P.W.16 examined the informant and visited the spot and he received the exhibits from the Inspector in Charge, Jarada police station. He forwarded the appellants to Court and produced the seized exhibits before the Court. He kept the seized exhibits at Baidanathpur police station malkhana on the direction of the Court after sealing the same properly as it was late. P.W.16 received the seized exhibits from Baidanathpur police station on 08.09.2009 and produced it before the S.D.J.M., Berhampur and as per the direction of the S.D.J.M., the exhibits were sent to R.F.S.L., Berhampur for chemical examination and opinion. He also deposited the remaining seized ganja in the Court Malkhana. He submitted a detail report to the Superintendent of Police, Berhampur regarding search and seizure etc. On 09.09.2009 he seized one INDICA Car bearing registration no.OR-02-X-7802 as per seizure list Ext.17 at Jankia from appellant Firoz Alli Khan @ Bulu (appellant in CRLA No.259 of 2012) for his involvement in the case. He examined the seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice attached to Jarada police station was one of the members of the patrolling party and he stated about the detention of the vehicles, presence of the accused persons in those vehicles and seizure of contraband ganja from the vehicles. P.W.7 Baba Khan and P.W. 8 B. Ujala Patra did not support the prosecution case. P.W.9 Satyanarayan Mohanty and P.W.10 M. Ramesh Rao were the home guards attached to Jarada police station and they were the members of patrolling party who stated about the arrest of the accused persons and recovery of contraband ganja from the three vehicles. P.W.11 Debabrata Sahu was the Tahasildar, Chikiti who remained present at the time of search of the vehicles and seizure of contraband ganja by the police. P.W.12 Rajendra Prasad Ratha was the constable attached to Jarada police station and he stated about the seizure of malkhana register of Jarada police station, extract of station diary entry and command certificate by the investigating officer under seizure list Ext.18. P.W.13 Radhamadhaba Padhy was the A.S.I. of police attached to the office of the Superintendent of Police, Berhampur and he stated about the release of two letters in his zima un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, P.W.9, P.W.10, P.W.11, P.W.12, P.W.13, P.W.14 and P.W.16 were the departmental witnesses but their evidence cannot be discarded as it did not suffer from any inherent infirmity or improbability. It is further held that no explanation whatsoever has been offered by the accused persons as to how and under what circumstance such huge quantity of ganja came into their possession and therefore, it is amply established that the accused persons were found in illegal and unauthorized possession of contraband ganja. It is further held that with regard to use of fake number plates which were recovered and seized, there is no evidence in proof of the charge that those number plates were fake and those had been used by the accused persons and therefore, the charge under section 482 read with section 34 of the Indian Penal Code fails. 7. Mr. Biswajit Nayak, learned counsel appearing for the appellant Firoz Alli Khan @ Bulu in CRLA No.259 of 2012 contended that the only material available against the appellant is the confessional statement of co-accused persons before police which has got no evidentiary value and there is no material on record relating to the ownership/possession of seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, section 43 of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is applicable in the case. It is further contended that there is compliance of the mandatory provisions of the N.D.P.S. Act and the seized ganja packets and the sample packets were kept in the malkhana of the police station in sealed condition and there was no chance of tampering with the articles. It is further contended that since huge quantity of ganja was seized from the possession of the appellants, for preparation of necessary documents and its production in Court, the delay caused cannot be said to be inordinate so as to create suspicion and therefore, the appeals preferred by the appellants should be dismissed. Discussion of evidence against appellant Firoz Alli Khan @ Bulu (CRLA No. 259 of 2012): 8. It is not disputed at the Bar that the appellant Firoz Alli Khan @ Bulu was not present in any of the three vehicles from which contraband ganja packets of commercial quantity were found. As per the F.I.R., after prolonged interrogation, the five persons found in the three vehicles disclosed that they along with the appellant Firoz Alli Khan @ Bulu and Kapila Sahu, Satya Swain and one Fakir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity to influence, pressurise or subject the person to coercion to extract confession. A confessional statement made by a person whilst he is in custody of a police officer shall not be proved as against him unless it is made in the immediate presence of a Magistrate in view of section 26 of the Evidence Act. In the present case, the evidence of Tahasildar-cum-Executive Magistrate (P.W.11) as already indicated is silent regarding any confessional statement by the co-accused persons implicating the appellant Firoz Alli Khan @ Bulu. Confession of a co-accused does not come within the definition of evidence as contained in section 3 of the Evidence Act. It cannot be treated as substantive evidence. Law is well settled that the Court cannot start with confession of a co- accused person. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. (Ref:- A.I.R. 1964 S.C. 1184, Hari Charan Kurmi Vrs.- State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a 'police officer' under Section 25 of Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code.........We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise 'all' the powers under Chapter XII of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto play. Of course, this Court has also held in Pon Adithan's case (supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence. 37. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava's case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In addition to the above, in the case of Raj Kumar Karwal -Vrs.- Union of India and Ors. 1991 Cri.L.J. 97, this Court held that officers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who: (i) is considered to be a police officer in common parlance keeping into focus the consequences provided under the Act. (ii) is capable of exercising influence or authority over a person from whom a confession is obtained. The matter was referred to a larger Bench for re- consideration of the issue as to whether the officer investigating the matter under N.D.P.S. Act would qualify as police officer or not and whether the statement recorded by the Investigating Officer under section 67 of the N.D.P.S. Act can be treated as confessional statement or not, even if the Officer is not treated as police officer. 10. Since the only material available on record against the appellant Firoz Alli Khan @ Bulu is the confessional statement of co-accused persons before P.W.14, the Inspector in Charge of Jarada police station which is not corroborated by the other official witnesses, in these circumstances, the evidence against the appellant is rather slender and it is not safe to uphold his conviction on such evidence, particularly when there rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seized. It is further contended that even though P.W.6 stated about the search of the vehicles and seizure of contraband ganja in his presence but he is not a witness to the seizure list and therefore, his evidence cannot be accepted. Learned counsel for the State on the other hand contended that P.W.6 has corroborated the evidence of P.W.14, the informant who has given the evidence in detail and there are no material discrepancies between the two and therefore, the evidence of P.W.6 cannot be discarded. Adverting to the contentions raised by the learned counsels for the respective parties, it is apparent that the seizure lists (Ext.1/11) does not indicate that P.W.6 is a witness to the seizure. The seizure list indicates that P.W.1 and P.W.2 are the two seizure witnesses who have not supported the prosecution case. The seizure list further indicates that the time of seizure to be 9.30 p.m. whereas P.W.6 stated that he along with others stayed at the spot till 9.00 p.m. which presupposes that he had left the spot prior to the preparation of the seizure list. P.W.6 stated that they apprehended five persons at Patrapur bus stand by chasing and intercepting the vehicles and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch and also seizure of five mobile phones from the accused persons under different seizure lists and seizure of contraband ganja in his presence as per seizure list. It is contended by the learned counsels for the appellants that the evidence of P.W.11 is silent as to which of the accused persons were present in which vehicle and he has not stated about the personal search of the other patrolling party members being taken in his presence and his evidence is totally silent about any weighment of ganja in his presence, drawal of samples of ganja by P.W.14 and also sealing of the bulk ganja packets as well as sample packets or handing over the personal seal of P.W.14 to anybody and therefore, his evidence is far from convincing and as such cannot be accepted as lending corroboration to the evidence of P.W.14. Learned counsel for the State on the other hand contended that even though the evidence of P.W.11 is not elaborate one but it can still be taken as a corroborative piece of evidence as the signatures of P.W.11 find place on the seizure lists (Ext.1/11). Considering the submission raised at the Bar, I am of the view that even though the signatures of P.W.11 appears on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raband articles. Contentions were raised by the learned counsels for the appellants regarding non-compliance of provision under section 42 of the N.D.P.S. Act by P.W.14. Learned counsel for the State on the other hand contended that the vehicles were detained and search and seizure was made in a public place and therefore, section 43 of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is applicable in the case. Law is well settled that total non-compliance with the provisions under sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. Section 42 (2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours. Under section 42 (1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful. Regarding compliance of provisions under sections 42(1) and 42(2) of the N.D.P.S. Act in case of seizure of contraband articles from a vehicle in a public place which was based on earlier reliable information, it is apparent that there is no evidence that the three vehicles were of public conveyance. In case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827 while discussing regarding the compliance of section 42 of the N.D.P.S. Act in case of a vehicle which was seized at the public place carrying contraband articles, a Division Bench of the Hon ble Supreme Court held that since the jeep cannot be said to be a public conveyance within the meaning of Explanation to section 43 of the N.D.P.S. Act, hence, section 43 was clearly not attracted and provisions of section 42(1) proviso were required to be complied with and it was further held that the aforesaid statutory mandatory provisions having not complied with, the High Court did not commit any error in setting aside the conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 postp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his office at Chikiti is 25 kms. and he further stated that there is nothing on record to show on which basis he went to Jarada police station and took charge of investigation of the case. The relevant station diary entries nos.120, 121 and 122 dated 06.09.2009 which were stated to have been made at Jarada police station by P.W.14 after receipt of reliable information regarding transportation of ganja and also regarding intimation given to the official superior have not been proved in the case. The entries of dispatch register nos. 1095 and 1096 regarding sending intimation to the official superior have also not been proved. No report with the copy of the S.D. Entry No.120 dated 06.09.2009 alleged to have been sent by P.W.14 to the office of S.P., Berhampur and S.D.P.O., Chikiti has been proved in the case. Nobody from the office of S.P., Berhampur has been examined to substantiate regarding receipt of any written information from P.W.14. The S.D.P.O., Chikiti who has been examined as P.W.16 is also silent regarding receipt of any written information as contemplated under section 42 of the N.D.P.S. Act from P.W.14. Therefore, there is no corresponding documentary evidence in sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station. In the present case P.W.14 himself was the Inspector in Charge of Jarada police station and the contraband articles were seized within the local limits of his police station. He has stated that the seized properties were kept inside the malkhana of the police station after entering the same in the property register vide mal item no.51/2009 and kept in safe custody vide S.D. Entry No.132. He has stated that he had entered in the station diary book that he had kept the seized properties in the malkhana. Neither the relevant station diary entry nor the malkhana register has been proved in the case. P.W.16 has stated that on 07.09.2009 he produced the seized exhibits before the Court and on the same day at night, he kept the seized exhibits at Baidyanathpur police station on the direction of the Court as it was late and that the seized exhibits were kept in safe custody in Baidyanathpur police station malkhana after sealing the same properly. He further stated to have received the seized exhibits from Baidyanathpur police station on 08.09.2009 at 11.00 a.m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of in any other way and these receipt shall be numbered serially and filed, and the number of receipts shall be entered in column No. 7. Therefore, it is clear that whenever any article is seized and kept in police malkhana, details thereof should be entered in the malkhana register and while taking it out, the entry should also be made in such register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court. When the malkhana registers of Jarada police station as well as Baidyanathpur police station have not been proved in the case and the officers in charge of malkhana of the respective police stations have not been examined, it is difficult to believe that the seized articles along with the sample packets were in safe custody before its production in Court for being sent for chemical analysis. According to the prosecution case, the brass seal used by P.W.14 for sealing the seized ganja as well as sample packets was kept with P.W.15. Except P.W.14, no other official witnesses have stated about handing over the brass seal to P.W.15. The brass seal was not produced in Court when the seized ganja and sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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