High Court allowed criminal appeal, acquitting appellants in NDPS case. Bench held investigation unfair as informant investigated case and thus denied under Section 42 procedural safeguards due to non-compliance and lack of independent verification.
Appellants acquitted and set at liberty forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL No. 452 Of 2013
From the Judgment and Order dated 23.08.2013 passed by the Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a) C.C. No. 02 of 2011 (N).
| Sumit Kumar Behera & another |
……… | Appellants |
|---|---|---|
| -Versus- | ||
| State of Odisha | ……… | Respondent |
| For Appellants: | - | Mr. Soura Ch. Mohapatra |
| For Respondent: ------ |
- ----------------- |
Mr. Purna Chandra Das Addl. Standing Counsel ----- |
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
--------------------------------------------------------------------------------------------------Date of Argument: 12.04.2019 Date of Judgment: 24.04.2019 ---------------------------------------------------------------------------------------------------
S. K. SAHOO, J . The appellants Sumit Kumar Behera and Babu Gouda
faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a) C.C. No. 02 of 2011 (N) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter
2
‘N.D.P.S. Act’) on the accusation that on 18.02.2011 at about 07.00 a.m. they were found in possession of three quintals of contraband ganja in front of Iswari Dhaba at Podamari under Pattapur police station in the district of Ganjam carrying it in an Ambassador Car bearing registration number OR-02-AE-0200 in contravention of the provision under section 8(c) of the said Act.
The learned trial Court vide impugned judgment and order dated 23.08.2013 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default, to undergo further rigorous imprisonment for period of two years each.
3
AE-0200 was coming towards Digapahandi. When they detained the car, the appellant Babu Gouda was found in the driver’s seat and appellant Sumit Kumar Behera was also found in the car. Jerry bags were found loaded on the rear seat of the car. When the appellants were asked about the contents of the jerry bags, they remained silent. P.W.4 asked the appellants to give option if they would like to be searched in presence of Executive Magistrate or Gazetted Officer but they opted to be searched by P.W.4. P.W.4 called independent witnesses to the spot and in their presence, the car was searched and ten numbers of jerry bags emanating smell of ganja were recovered from inside the car. P.W.4 conducted preliminary tests such as burning of a little piece of the contents of the bags and taking smell of the same. By his service experience, P.W.4 was confirmed that the jerry bags were containing ganja. The weight of the bags was taken which was found to be three quintals. Since the appellants did not produce any authority to transport ganja, the car along with its starting key, the jerry bags containing ganja were seized under seizure list Ext.1. P.W.4 sealed the seized bags by using papers and affixing impression of his brass seal. He gave his brass seal to P.W.2 Kalu Charan Jena on zima, recorded the statements of the appellants and witnesses. He gave a copy of
4
the seizure list to each of the appellants by obtaining zimanama, prepared the spot map. The appellants were arrested and produced before the learned Special Court and as per the direction of the learned Special Court, the seized ganja bags were produced before the learned S.D.J.M., Berhampur and in his presence, the samples were collected. P.W.4 sent the sample packets for chemical analysis through Constable Bhagaban Mahanandia. During course of investigation, P.W.4 issued a letter to the R.T.O., Bhubaneswar for supply of details of the seized car. The R.T.O. issued a letter enclosing xerox copy of the R.C. book that the owner of the vehicle was one Usarani Das. The owner was found dead and her husband submitted an affidavit with a copy of the death certificate of his wife. He received the chemical examination report and on completion of investigation, P.W.4 submitted the prosecution report against the appellants.
four witnesses.
5
P.W.1 Susanta Gouda who was working as Watchman
at Forest Check-gate, Podamari stated that he has no knowledge
about any incident and excise staff seized some bags.
P.W.2 Kalu Charan Sahu stated that on 18.02.2011 the excise staff seized ten bags of contraband ganja in front of P.W.D. I.B., Podamari and prepared seizure list in which he put his signature.
P.W.3 Bhagaban Mahanandia was working as Excise
Constable attached to E.I. & E.B., Berhampur and he stated about seizure of ten bags of contraband ganja from inside the car on 18.02.2011, weighment of the contraband ganja, preparation of the seizure list and arrest of the appellants. He also proved the spot map (Ext.2) and written consent obtained from the appellants vide Exts. 3 & 4.
P.W.4 Sarat Chandra Bhanja was working as S.I. of Excise, who not only received the reliable information regarding transportation of ganja in a car but also proceeded to the spot with his staff, seized the jerry bags containing contraband ganja from inside the car, took weighment of the contraband ganja and prepared the seizure list as well as other documents. He arrested the appellants, produced them in Court, made prayer for sending the sample collected in Court for chemical examination, seized
6
various documents and after completion of investigation, he submitted prosecution report against the appellants.
The prosecution exhibited eleven documents. Ext.1 is the seizure list, Ext.2 is the spot map, Exts.3 and 4 are the written consent of the appellants, Ext.5 is the information letter, Ext.6 is the forwarding letter of S.D.J.M., Berhampur for chemical examination, Ext.7 is the letter of the Investigating Officer to the R.T.O., Bhubaneswar, Khurda for supply of particulars of the ownership of the Ambassador car, Ext.8 is the reply given by the R.T.O., Ext.9 is the xerox copy of death certificate of the owner of the offending vehicle, Ext.10 is the affidavit of Prasanna Kumar Dash, the husband of the deceased owner of the offending vehicle and Ext.11 is the chemical examination report.
The prosecution also proved ten material objects. M.Os. I to X are the sealed jerry bags containing residue ganja.
7
of provisions of section 42(2) of the N.D.P.S. Act. The learned trial Court was of the considered opinion that there has been substantial compliance of section 42(2) of the Act. It was further held that the discrepancy in the evidence of P.W.3 and P.W.4 with regard to the manner of coming of the vehicle is too trivial and such discrepancy is also not unnatural to occur and that itself is not a ground to entertain doubt with regard to search so as to upset the foundation of the prosecution case. The learned trial Court found the evidence of P.Ws.3 and 4 to be quite consistent and free from any doubtful features and held that P.W.1’s non-supporting the prosecution case in relation to search, recovery and seizure has absolutely got no significance. It was further held that P.W.3 and P.W.4 during trial specifically identified appellant Babu Gouda as the driver of the car and the other appellant as the passenger and that the prosecution evidence that three hundred kilograms of ganja were recovered from the car which was in occupation of the appellants is wholly acceptable and that the prosecution case regarding search, recovery and seizure of ganja from the conscious possession of the appellants stood established beyond reasonable doubt.
for the appellants strenuously contended that there is no fair
8
investigation as the Excise Sub-Inspector (P.W.4) conducting search and seizure has himself carried out the entire investigation and submitted the prosecution report. He placed reliance in the case of Mohan Lal -Vrs.- State of Punjab reported in A.I.R. 2018 S.C. 3853 to show that if an informant police official in a criminal prosecution is himself asked to investigate the case, serious doubts would naturally arise with regard to his fairness and impartiality and obligation of proof beyond reasonable doubt would take within its ambit fair investigation, in absence of which there can be no fair trial. It is further contended that Exts.3 and 4 have been created subsequently which reflects unfairness in the investigation. The evidence of two independent seizure witnesses i.e. P.Ws.1 and 2 are not in consonance with the seizure list (Ext.1) and even they have not stated about the presence of the appellants at the time of preparation of seizure list and those two witnesses have not been declared hostile by the prosecution and therefore, their evidence is binding on the prosecution and cannot be sidelined. He placed reliance in the case of Raja Ram -Vrs.- State of Rajasthan reported in (2005) 5 Supreme Court Cases 272 . It is further submitted that even though P.W.3 and P.W.4, the two official witnesses arrived at the spot at the same time, their
9
evidence relating to the position of car is completely different. P.W.3 stated that the Ambassador Car bearing Regd. no.OR-020200 was found parking near a road side Dhaba whereas P.W.4 stated that the Ambassador Car bearing Regd. No.OR-02-AE0200 was found coming towards Digapahandi and they detained the vehicle. Mr. Mohapatra, learned counsel highlighted that P.W.3 has not stated that the two persons who were sitting inside the car were the appellants and he has not even stated that ten bags containing ganja were found inside that car. It is contended that when the car owner was not examined, it is doubtful as to how the offending car came into the possession of the appellants. It is argued that in the seizure list (Ext.1) as well as in the prosecution report, it is not mentioned that ten bags containing ganja were found on the rear seat of the car. The learned counsel further argued that though P.W.3 and P.W.4 have stated that the brass seal was handed over to P.W.2 but the evidence of P.W.2 is totally silent in that respect and even the brass seal was not produced in Court either when the seized contraband articles were produced for collection of sample and its dispatch for the chemical examination or during trial. It is further contended that after production of the contraband articles in Special Court, there is nothing to show regarding its
10
production before the Magistrate for drawal of sample and there is also nothing on record to show as to how the samples were dispatched for chemical analysis. He argued that mandatory provision under section 42(2) of the N.D.P.S. Act has not been complied with and the copy of the information taken down in writing by P.W.4 has not been sent to the immediate official superior within stipulated hours, which has vitiated the search and seizure. According to him, proving Ext.5 as it is, is not the sufficient compliance of section 42(2) of the N.D.P.S. Act and the material witnesses regarding receipt of the intimation letter (Ext.5) by the I.I.C., E.I. & E.B., Berhampur have neither been examined nor material documents relating to the receipt of such letter by the concerned I.I.C. have been proved during trial and everything has been subsequently stage managed to show the compliance of section 42(2) of the N.D.P.S. Act. It is argued that since punishment prescribed under the N.D.P.S. Act are very stringent in nature, it was required on the part of the prosecution to prove that the mandatory provisions under section 42(2) of the N.D.P.S. Act are being duly complied with and in the case in hand, the prosecution has failed to bring clinching materials on record on several important aspects relating to search and
11
seizure and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants.
Mr. Purna Chandra Das, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that since the vehicle was detained and search and seizure was made in a public place, 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. He further contended that both the appellants were found in the offending car when it was detained and the appellant no.2 was in the driver’s seat and commercial quantity of contraband ganja in ten jerry bags were found in it and therefore, the learned trial Court is justified in convicting the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act.
Contention relating to unfair investigation
In the case of Mohan Lal (supra), it is held as
follows:-
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“11. A fair trial to an accused, a constitutional guarantee Under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.
xx xx xx xx xx
13
and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.”
In case of State by Inspector of Police -Vrs.Rajangam reported in (2010) 15 Supreme Court Cases
369 , it is held as follows:-
"8. The short question which falls for consideration of this Court is: whether P.W.6 who registered the crime could have investigated the case or an independent officer ought to have investigated the case?
14
taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under:
“4....We have also noted another disturbing feature in this case. P.W.3, Sri Chand, Head Constable arrested the accused and on search being conducted by him, a pistol and the cartridges were recovered from the accused. It was on his complaint, a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.”
15
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 P.Ws. 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.”
In case of Bata Khrushna Sahu -Vrs.- State of Orissa reported in (2010) 45 Orissa Criminal Reports 606
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wherein it has been held that P.W.8 who was the person who conducted the search and allegedly recovered gunny bags M.Os. I, II and III and therefore, the investigation of the case by P.W.8 himself renders the charge against the petitioner vulnerable.
In case of Panchanan Das -Vrs.- State of Orissa reported in (2016) 65 Orissa Criminal Reports 702 , it is held that where stringent punishment has been prescribed, ordinarily if a police officer is the informant in a case, in the fairness of things, the investigation should be conducted by some other empowered police officer or at least the investigation should be supervised by some other Senior police officer as the informant police officer is likely be interested in the result of the case projected by him. However, if the informant police officer in the exigencies of the situation conducts investigation and submits final form, it cannot be per se illegal. The defence has to prove in what way such investigation is impartial, unfair, biased or has caused prejudice to the accused.
In the case in hand, the search and seizure took place on 18.02.2011 and the prosecution report along with connected papers were filed in the Court of learned Sessions Judge –cum- Special Judge, Berhampur on 28.03.2011. When P.W.4 received the reliable information, searched the vehicle and
17
seized the contraband articles, in all fairness of things, he should not have investigated the matter without any exigencies of the situation. P.W.4 has not stated anything as to what were the exigencies of the situation on his part to conduct investigation and to submit the prosecution report. There is nothing on record as to why any other competent officer was not assigned the investigation of the case. It is the duty of the prosecution to bring on record by adducing cogent evidence regarding the exigencies of the situation which compelled an officer conducting search and seizure of contraband articles to carry forward with the investigation and to submit the prosecution report or charge sheet. In absence of such evidence, serious doubts would arise with regard to the fairness and impartiality in the investigation.
Coming to the contentions raised by the learned counsel for the appellants that Exts.3 and 4 have been created subsequently which reflects unfairness in the investigation, it appears that both these documents relate to compliance made on the spot as per the provisions of section 50 of the N.D.P.S. Act. There is no dispute that since it is a case of search of a car from where the jerry bags containing contraband ganja were recovered, section 50 of the N.D.P.S. Act would not be applicable which relates to a case of a search of a person. ( Ref:- State of
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Punjab -Vrs.- Baldev Singh: 1999 Criminal Law Journal 3672; Kalema Tumba -Vrs.- State of Maharashtra and another: (1999) 8 SCC 257; Gurbax Singh -Vrs.- State of Haryana: (2001) 3 SCC 28; Madan Lal -Vrs.- State of H.P: (2003) 7 SCC 465; Birakishore Kar -Vrs.- State of Orissa: (2000) 9 SCC 541; and Saikou Jabbi -Vrs.- State of Maharashtra: (2004) 2 SCC 186 ). P.W.4 stated that when he asked the appellants to give option if they would like to be searched in presence of Executive Magistrate or Gazetted Officer, they opted to be searched by him. Ext.3 and Ext.4 are two computer printed formats where blank spaces are provided for inserting the names and addresses of the accused persons, which have been filled up by P.W.4. However, in those formats, it is already being printed that the accused was given the option of search in terms of section 50 of the N.D.P.S. Act but he opted to be searched by P.W.4. It is too difficult to believe that P.W.4 could prophesize that the accused persons might not be interested to be searched by any other Gazetted Officer or a Magistrate rather they would opt to be searched by him and that is how he carried the computer forms printed in that way to the spot. Such documents apparently have been prepared afterwards in the office but those have been anti-timed to show compliance
19
of section 50 of the N.D.P.S. Act. The manner in which Exts.3 and 4 have been prepared, which were not necessary, reflects unfair investigation by P.W.4. Therefore, since the investigation conducted by P.W.4 was not fair and judicious, adverse inference is to be drawn against the prosecution.
Evidence of independent witnesses vis-à-vis official witnesses
20
might be put in the cross-examination by the defence counsel in view of section 154 of the Evidence Act. If the Public Prosecutor fails to do so, the defence can take advantage from such unchallenged testimony to strengthen the defence plea. Of course, the Public Prosecutor can advance his argument that even though a particular prosecution witness has not been declared hostile but his evidence is not otherwise trustworthy and should be discarded and then it is for the Court to decide the acceptability of such argument. In case of Raja Ram (supra), it has been held that when P.W.8 has not been declared hostile by the Public Prosecutor for reasons only known to him, the evidence of P.W.8 is binding on the prosecution and such testimony cannot be sidelined. Basing on the ratio laid down in the aforesaid Supreme Court judgment, I am of the humble view that the evidence of P.W.1 and P.W.2 cannot be totally sidelined and their evidence creates doubt with regard to the prosecution case that the contraband ganja was seized in front of Iswari Dhaba from a car and the appellants were found in the car.
P.W.3, the Excise Constable stated that the
Ambassador car was found parking near a road side Dhaba when he along with P.W.4 reached there. P.W.4, on the other hand, stated that the Ambassador car was coming from Digapahandi
21
side and they detained the vehicle in front of Iswari Dhaba. It cannot be lost sight of the fact that both P.W.3 and P.W.4 proceeded together to the spot and reached at one point of time. P.W.3 stated that two persons were found sitting inside the car but he has not stated that the appellants were those two persons. Even if it is held that the Public Prosecutor inadvertently could not bring such things on record through P.W.3, but P.W.3 is silent in his chief-examination as to wherefrom the ten jerry bags containing contraband ganja were found and seized? P.W.3 has stated that no contraband ganja was found in the dickey of the car. He has stated the car registration number to be OR-020200 whereas P.W.4 stated that the registration number of the car was OR-02-AE-0200. P.W.4 stated that samples were collected from the seized ganja bags before the learned S.D.J.M., Berhampur whereas from the cross-examination of P.W.3, it appears that at the spot, from each bag sample of 50 grams was drawn which were sealed with the seal of P.W.4. Even though P.W.3 and P.W.4 stated that the brass seal was handed over to P.W.2 but P.W.2 is totally silent in that respect. The zimanama of the brass seal in favour of P.W.2 has not been proved by the prosecution. The brass seal was also not produced before the Court by P.W.2 for verification when the seized jerry bags
22
containing contraband ganja were produced in Court for drawal of samples for chemical examination. It is the requirement of law that when the contraband articles are seized and sealed with the seal impression then the brass seal has to be left in the zima of a reliable person under zimanama and instruction is to be given to such person to produce it before the Court for verification at the time of production of articles. The brass seal was also not produced at the time of trial.
The order sheet dated 18.02.2011 of the learned Special Judge, Berhampur indicates that when the appellants were produced before him on that day and the Investigating Officer prayed to draw samples to send the same for chemical analysis, the learned Special Judge directed the learned S.D.J.M., Berhampur for drawing samples from the seized ganja. There is no order sheet to show that the seized jerry bags containing ganja were placed before the learned S.D.J.M., Berhampur where samples were drawn. The forwarding letter of the learned S.D.J.M., Berhampur dated 18.02.2011 indicates that the seized properties were produced before him with a prayer to draw samples and to send it for necessary chemical analysis. There is nothing to show that the learned S.D.J.M., Berhampur verified the seized jerry bags to be under proper seal at the time of its
23
production and that he broke open the seals of each jerry bags and collected samples separately. Therefore, it is doubtful as to whether the jerry bags after its seizure at the spot were properly sealed.
Non-compliance of Section 42 of the N.D.P.S. Act
P.W.4 has stated that on 17.02.2011 at 8.00 p.m. he received information from reliable source about illegal transportation of ganja in between Digapahandi and Luhagudi State Highway and accordingly, he entered the fact in the information register and gave a letter to the Inspector-in-charge, E.I. & E.B., Berhampur, who directed him to detect the case. P.W.4 proved the said information letter as Ext.5, his signature thereon as Ext.5/1 and the endorsement of I.I.C., E.I. & E.B., Berhampur as Ext.5/2.
The information letter (Ext.5) reads as follows:-
To,
The Inspector in Charge, E.I. & E.B., Unit-II (SD), Berhampur
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Sub: Intimation regarding detection of N.D.P.S.
case.
Ref: Section 42(2) of N.D.P.S. Act. Sir,
On dated 17.02.2011 at about 8.00 p.m., I got information from reliable sources that illegal transportation of Ganja (Cannabis) is going on through 4 wheeler in between Digapahandi to Luhagudi State Highway. Then I entered the details of information in the information Register i.e. C-1.
I would therefore request you that necessary instruction may kindly be passed to move for the enforcement purpose.
Yours faithfully, Sd/-Illegible 17.02.2011
(Sarat Chandra Bhanja) S.I. of Excise, E.I. & E.B.
Unit-II, Berhampur
(Received the intimation letter from Sri S. Ch. Bhanja, S.I. of Excise, E.I. & E.B., Berhampur. Directed to detect the case successfully.)
Sd/-Illegible 17.02.2011 I.I.C., E.I. & E.B.
Berhampur
Under section 42(1) of the N.D.P.S. Act, if the
empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that
25
the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to subsection (1) of section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search during that period would afford opportunity for the concealment of evidence or facility for the escape of an offender. 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.
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
26
seized at the public place carrying contraband articles, it was 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.
The present is not a case where P.W.4 suddenly carried out search in the vehicle at a public place rather according to P.W.4, the reliable information was received on the previous day in the evening hours. He has stated in the crossexamination that on 17.02.2011 at 08.00 p.m. he received information while he was in his office and he mentioned the details of information received and the ground of his satisfaction in the information register (C-1). He admits that his case diary does not reveal that he sent the extract of C-1 register to his Senior Officer. The intimation letter (Ext.5) according to him, did not bear any letter number though it was entered in the dispatch register. P.W.4 himself has come up with a case of compliance of section 42 of the N.D.P.S. Act but from his evidence, it is clear that he has not sent the copy of the details of reliable
27
information received and the ground of his satisfaction which was mentioned in the information register (C-1) to the I.I.C., E.I. & E.B., Berhampur. What P.W.4 has intimated to the I.I.C. vide Ext.5 was only receipt of reliable information regarding illegal transportation of ganja and entering the same in the information Register C-1. Even if the intimation letter was received by the I.I.C., E.I. & E.B., Berhampur who is the immediate official superior of P.W.4 on the very day but according to my humble view, this would not be sufficient compliance of section 42(2) of the N.D.P.S. Act. P.W.4 was required to send the copy of the details of reliable information received and the ground of his satisfaction which was mentioned by him in the information register (C-1) to the I.I.C., E.I. & E.B., Berhampur. The salutary provision has a very useful purpose. Not only the superior official is required to be aware about the receipt of the reliable information by the concerned officer and his grounds of belief beforehand but also by sending such documents to the superior official, it would check any kind of tampering by the concerned officer with the nature of information received and reduced to writing. It would also safeguard the interest of an accused against false implication.
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The Hon’ble Supreme Court while discussing the provision under section 42 of the N.D.P.S. Act in case of State of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283 has been pleased to hold that the object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the benefit while carrying out arrest or search as provided under the proviso to section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates of the trial. The decision rendered in the case of Balbir Singh (supra) was further considered by a five-Judge Bench in the case of Karnail Singh -Vrs.- State of Haryana reported in (2009) 44 Orissa Criminal Reports (SC) 183 wherein it was held in the concluding paragraph as follows :-
“17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the
29
requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of section 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 concerned Register 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 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
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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 of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of 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 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 the
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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.”
Ext.5 does not reveal as to the type of four wheeler and its registration number in which the illegal transportation of ganja was stated to be going on and when it is likely to arrive at the spot where it was detected. The information that was received at 08.00 p.m. while P.W.4 was at the Excise office was to the effect that the illegal transportation was in between Digapahandi and Luhagudi State Highway and he proceeded towards Podamari with his staff at 4.30 a.m. i.e. about eight and half hours after the receipt of reliable information. As per the Google map, the distance between Digapahandi and Luhagudi State Highway is only 30.1 kms. and Podamari comes in between the two. If that was the distance factor, it is not understood as to
how even after receipt of the information at 08.00 p.m., P.W.4 left to the spot after so many hours and in spite of that he was successful in getting the offending vehicle. In absence of any previous information regarding the type of four wheeler and its
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registration number and the time of arrival at the particular place, it must have been daunting task in detecting the vehicle. The evidence of P.W.3 and P.W.4 regarding detecting the offending vehicle easily creates doubt about the prosecution case from its beginning.
According to the prosecution case, the owner of the vehicle namely Usharani Das was dead and her husband submitted an affidavit with a copy of the death certificate of his wife. The husband of the registered owner has not been examined during trial. There is no evidence as to how the offending vehicle came to the possession of the appellants. Neither any driving licence nor any other personal belongings of the appellants were found in the vehicle. When P.W.4 issued letter to R.T.O. to supply particulars of the seized car, the R.T.O. gave a letter enclosing the xerox copy of R.C. book which has been marked as Ext.8/1 which shows that it is a ‘non-transport vehicle’. Thus the offending vehicle was not coming within ‘public conveyance’. Therefore, in view of the ratio laid down in case of Jag Raj Singh @ Hansa (supra), the statutory mandatory provisions of section 42 of the N.D.P.S. Act are required to be complied with.
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In view of the mandatory provisions of section 42 of the N.D.P.S. Act, the Court is required not only to verify that the reliable information was taken down in writing but also the grounds of belief was also recorded as per the second proviso to section 42(1) of the N.D.P.S. Act and copy of the same was sent to the immediate official superior in view of sub-section (2) of section 42 of the N.D.P.S. Act.
In a case of this nature where the prosecution is required to prove the compliance of the mandatory provision under section 42 of the N.D.P.S. Act, all the relevant documents which are connected with such compliance are to be proved before the trial Court in accordance with law and similarly all the concerned witnesses should be examined in Court to prove the vital aspect. In absence of proof of the oral as well as documentary evidence relating to compliance of such provision, the prosecution case should be viewed with suspicion.
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produced in Court at the time of production of the seized articles, the independent persons examined by the prosecution who have not been declared hostile give a complete different picture regarding detection of contraband ganja, it cannot be said that the prosecution has successfully established the charge under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants beyond all reasonable doubt.
Therefore, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed thereunder is not sustainable in the eye of law.
Accordingly, the Criminal Appeal is allowed. 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 set at liberty forthwith if their detention is not required in any other case.
Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.
S. K. Sahoo, J.
The 24th April 2019/Pravakar/RKM/Sisir/Sukanta
Orissa High Court, Cuttack
2 issues framed by the court
Whether investigation conducted by the informant Excise Sub-Inspector was fair and impartial given his role in registration and search.
Whether mandatory procedural requirements under Section 42 of the NDPS Act were substantially complied with regarding information recording and forwarding.
Colour shows how this judgement treated each authority
Mohan Lal vs State of PunjabRelied on¶53
Mohan Lal -Vrs- State of Punjab reported in A.I.R. 2018 S.C. 3853 · Who else cites this
State by Inspector of Police vs RajangamRelied on¶61
State by Inspector of Police -Vrs- Rajangam reported in (2010) 15 Supreme Court Cases 369
Megha Singh vs State of HaryanaRelied on¶64
Megha Singh -Vrs- State of Haryana : 1995 Criminal Law Journal 3988
Bata Khrushna Sahu vs State of OrissaRelied on¶73
Bata Khrushna Sahu -Vrs- State of Orissa reported in (2010) 45 Orissa Criminal Reports 606
Panchanan Das vs State of OrissaRelied on¶76
Panchanan Das -Vrs- State of Orissa reported in (2016) 65 Orissa Criminal Reports 702
State of Rajasthan vs Jag Raj SinghRelied on¶120
State of Rajasthan -Vrs- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827
State of Punjab vs Balbir SinghRelied on¶129
State of Punjab -Vrs- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283
Karnail Singh vs State of HaryanaRelied on¶129
Karnail Singh -Vrs- State of Haryana reported in (2009) 44 Orissa Criminal Reports (SC) 183
2 provisions across 1 enactments
Sumit Kumar Behera
Babu Gouda
State of Odisha
S.K. SAHOO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S.K. SAHOO
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