Allowed

Premananda Sahu v. State of Orissa

Orissa HC5 Apr 2021CRLA/161/2015

Case brief

AI extract

What is this about?

Ganja possession convictions were set aside because safe custody of the seized contraband and samples was doubtful and tampering was not ruled out. The court allowed both appeals, acquitted the appellants and directed their release unless required in another case.

What did the court decide?

Both appellants acquitted; convictions and sentences set aside; immediate release directed unless detention was required in another case.

Premananda Sahu Vs State of Orissa — Narcotics (NDPS) | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLA No.126 of 2015

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From the judgment and order dated 12.02.2015 passed by the Additional Sessions Judge -cum- Special Judge, Phulbani in G.R. Case No. 07 of 2013.

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_____________
Amresh Chandra Barik …. Appellant
M/s. Anirudha Das, S.K. Mishra, A.
Das, S.K. Rout, Abanindra Das, S.Ch.
Mishra, D. Mishra, Advocates
-versus-
State of Odisha …. Respondent
Mr. Arupananda Das,
Additional Government Advocate
CRLA No. 161 of 2015
Premananda Sahu …. Appellant
M/s. Subrat Kumar Das, Pradeep
Kumar Das & Debasis Sahoo,
Advocates
-versus-
State of Odisha …. Respondent
Mr. Arupananda Das,
Additional Government Advocate

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CORAM:

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JUSTICE S.K. SAHOO

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Date of Hearing : 25.03.2021 Date of Judgment: 05.04.2021

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The appellant Amresh Chandra Barik in CRLA No. 126 of 2015 and appellant Premananda Sahu in CRLA No.161 of 2015 faced

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trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Phulbani in G.R. Case No. 07 of 2013 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 26.09.2013 at about 9.35 a.m., they were found to be in unlawful possession of 32 kgs. 550 grams and 34 kgs. 600 grams of contraband ganja respectively near Surkapata Ghat road at village Majhipada on Phiringia Gochhapada road.

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The learned trial Court vide impugned judgment and order dated 12.02.2015 found both 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), in default, to undergo further rigorous imprisonment for period of one year.

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Since both the appeals arise out of one common judgment, with the consent of learned counsel for both the parties, those were heard analogously and are disposed of by this common judgment.

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The prosecution case, in short, is that on 26.09.2013 at about 9.35 a.m. Madan Mohan Pradhan (P.W.4), Inspector in charge of Phiringia police station got information from reliable sources that the appellants were in possession of huge quantity of ganja i.e. flowering and fruiting tops of cannabis plants and were standing near

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Surkapata Ghat on Phiringia Gochhapada road waiting for transportation of ganja. As it was not possible to obtain a search warrant, P.W.4 arranged a raiding party comprising of the P.S. staff with a view to proceed to the spot for detection of the offence. He also informed Mr. Pravat Chandra Panigrahi (P.W.12), S.D.P.O., Sadar, Phulbani over telephone about the proposal to conduct raid and entered the ground of belief in the Station Diary vide Entry No. 450 dated 26.09.2013. Copies of the ground of belief along with extract of Station Diary Entry were sent to S.D.P.O., Sadar, Phulbani as well as Superintendent of Police, Kandhamal. P.W.4 along with the raiding party members thereafter proceeded to the spot in a police jeep and on arrival at the spot, they found two persons were standing by the road side with some plastic and gunny packets. On seeing the arrival of the police team, those two persons started running, but they were apprehended soon. On query, those persons disclosed their names as Amresh Chandra Barik (appellant in CRLA No. 126 of 2015) and Premananda Sahu (appellant in CRLA No. 161 of 2015) and admitted to have kept ganja inside the plastic and gunny packets and waiting for transportation of the same. The appellants denied to have got any license or authority in support of possession of ganja. After observing the formalities under section 50 of the N.D.P.S. Act, both the appellants were searched in presence of the Executive Magistrate Nabin Kumar Patel (P.W.9) and on personal search of appellant

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Page 3 of 27

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Amresh Chandra Barik, cash of Rs.9050/-, one original driving license, two nos. of Nokia mobile phones were recovered and two plastic packets containing ganja were also recovered from his exclusive and conscious possession. Similarly, on personal search of appellant Premananda Sahoo, cash of Rs.5,800/- and one Micromax mobile phone were recovered and two plastic packets and one gunny packet containing ganja were also recovered from his exclusive and conscious possession. On weighment of the ganja recovered from the possession of appellant Amresh Chandra Barik by weighman Bhabani Shankar Sahu (P.W.3), it was found to be 32 kg. 550 grams and similarly the weight of ganja recovered from the possession of appellant Premananda Sahu were found to be 34 kg. 600 grams. P.W.4 collected two samples of 50 grams from each bag. After collection of the samples, P.W.4 stitched, packed and sealed the sample packets and the bulk ganja packets in presence of the Executive Magistrate and witnesses by using his personal brass seal. He prepared the seizure lists showing seizure of ganja and other articles from the appellants and obtained signatures of the Executive Magistrate, the witnesses and the appellants on the seizure lists and also affixed the specimen brass seal used on the seizure lists. He also obtained signatures of the Executive Magistrate, witnesses and the appellants on the sample packets and the packets containing bulk quantity of ganja and also affixed specimen seal on the packets. He

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left the weighing apparatus in the zima of weighman (P.W.3) and also left his personal brass seal in the zima of Dolagobinda Sahu (P.W.2) by executing Zimanama. He drew up a plain paper F.I.R. (Ext.9) and requested P.W.12, S.D.P.O., Sadar, Phulbani who arrived at the spot as per the orders of S.P., Phulbani to take up investigation. The appellants were arrested and they along with all the seized articles were handed over to P.W.12.

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P.W.12 after taking over charge of investigation from P.W.4 verified the case records, prepared spot map (Ext.13). He examined the witnesses and recorded their statements, resealed the exhibits already seized and sealed by P.W.4 and kept the articles at Phiringia police station malkhana after due entry in the Malkhana register. P.W.12 forwarded the appellants to Court on 27.09.2013 along with the material objects with a prayer to the learned Special Judge, Phulbani to send the seized exhibits for chemical examination by S.F.S.L., Bhubaneswar. As per the direction of the learned Special Judge, Phulbani, the learned S.D.J.M., Phulbani forwarded the seized exhibits to S.F.S.L., Bhubaneswar for chemical examination. P.W.12 submitted a detail report (Ext.21) to S.P., Phulbani and the said detail report and intimation letter (Ext.5) submitted by P.W.4 at the office of the S.P., Phulbani were seized on 05.12.2013 as per seizure list (Ext.12). The chemical examination report (Ext.22) indicated that the exhibits marked as A-1, B-1, C-1, D-1 and E-1 were found to contain

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flowering and fruiting tops of cannabis plant i.e. Ganja. On completion of investigation, on 20.01.2014 P.W.12 submitted charge sheet under section 20(b)(ii)(C) of the N.D.P.S. Act against the two appellants.

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The appellants were charged under section 20(b)(ii)(C) of the N.D.P.S. Act to which they pleaded not guilty and claimed to be tried.

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During course of trial, the prosecution examined twelve

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witnesses.

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P.W.1 Gobinda Chandra Patra and P.W.2 Dolagobinda

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Sahu are witness to the seizure, but they did not support the prosecution case, for which they were declared hostile by the prosecution. They stated to have signed on some white papers as per the instruction of the police.

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P.W.3 Bhabani Shankar Sahoo is a witness to the seizure but he also did not support the prosecution case and stated to have no knowledge about the incident, but he admitted to have signed on seven packets.

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P.W.4 Madan Mohan Pradhan was the I.I.C. of Phiringia police station, who not only detected the appellants carrying contraband Ganja at Surkapata Ghat on Phiringia Gochhapada road, but also seized it and prepared the seizure lists after weighment of contraband ganja and collected samples. He is the informant of the case.

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P.W.5 Kashyap Pradhan was the Havildar attached to

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Phiringia Police Station and he accompanied P.W.4 to the spot. He stated about the recovery of contraband ganja from the possession of the appellants in five bags, collection of the samples by P.W.4. He is also a witness to the seizure of contraband ganja packets and sealing of those packets.

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P.W.6 Santosh Kumar Dalbehera was the Constable attached to Phiringia Police Station and he is also a witness to the seizure of the station diary as well as Malkhana register of the police station as per seizure list Ext.10 and he is also a witness to the seizure of command certificate vide seizure list Ext.11.

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P.W.7 Asanta Pradhan was the Constable attached to

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Phiringia Police Station and he is a witness to the seizure of command certificate as per seizure list vide Ext.11.

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P.W.8 Binod Bihari Jani was the Constable attached to

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Phiringia Police Station and he accompanied P.W.4 to the spot. He stated about the recovery of contraband ganja along with other articles from the possession of the appellants and he is a witness to the seizure of contraband ganja.

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P.W.9 Nabin Kumar Patel was the Tahasildar, Phiringia in

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whose presence the contraband ganja was seized from both the appellants, weighed and sample packets were prepared and those were also seized.

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P.W.10 Bharat Kanhar was the Home Guard attached to Phiringia Police Station in whose presence the Malkhana register and station diary book were seized as per seizure list Ext.10.

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P.W.11 Brahmananda Pradhan was the constable at D.P.O., Kandhamal who is a witness to the seizure of intimation letter of P.W.4 and detail report of P.W.12 as per seizure list Ext.12.

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P.W.12 Pravat Chandra Panigrahi was the S.D.P.O.,

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Sadar, Phulbani, who on receipt of information from P.W.4 regarding detection of ganja, proceeded to the spot, took charge of investigation of the case from P.W.4 and on completion of investigation submitted charge sheet.

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The prosecution exhibited twenty two documents. Ext.1/3 is the seizure list relating to seizure made from appellant Premananda Sahu, Ext.2/3 is the seizure list relating to seizure made from appellant Amresh Barik, Ext.3/1 is the zimanama of brass seal, Ext.4/1 is the zimanama of weighing machine, Ext.5 is the intimation letter to S.P., Kandhamal, Ext.6 is the notice to appellant Amresh Chandra Barik, Ext.7 is the notice to appellant Premananda Sahu, Ext.8 is the order dated 26.09.2013 of Sub-Divisional Magistrate, Phulbani, Ext.9 is the F.I.R., Ext.10 is the seizure list dated 08.11.2013, Ext.11 is the seizure list dated 30.09.2013, Ext.12 is the seizure list dated 05.12.2013, Ext.13 is the spot map, Ext.14 is the forwarding report of appellants, Ext.15 is the forwarding report of

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exhibits for chemical examination, Ext.16 is the command certificate, Ext.17 is the acknowledgement for receipt of M.O., Ext.18 is the relevant entry no.450 in Station Diary Book, Ext.19 is the relevant entry no.462 in Station Diary Book, Ext.20 is the relevant entry in Malkhana register of Phiringia P.S. vide page No.4 (Sl. No.27/13), Ext.21 is the detail report submitted by P.W.12 to S.P., Kandhamal and Ext.22 is the Chemical Examination report.

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The prosecution also proved nineteen material objects. M.Os. I, II, X, XI and XII are the packets containing bulk quantity of ganja, M.Os.III and IV are the original containers (plastic bags), M.Os. V and VI are the sample packets seized from the appellant Amresh Chandra Barik, M.Os. VII and VIII are the mobile phones of the appellant Amresh Chandra Barik, M.O. IX is the D.L. of appellant Amresh Chandra Barik, M.Os. XIII and XIV are the original containers (two plastic bags), M.O. XV is the original container (one gunny bag), M.Os. XVI, XVII and XVIII are the samples of ganja and M.O. XIX is the mobile phone of appellant Premananda Sahu. 5. The defence plea of the appellant was one of denial and it was pleaded that they have been falsely implicated in the case. 6. The learned trial Court after analysing the evidence on record came to hold that since ganja was seized from the possession of the appellants in a public place which was by the side of road at Surkapata Ghat on Phiringia Gochhapada road, therefore, there was

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no need for compliance of the provision of section 42 of the N.D.P.S. Act. However, compliance of such provision by the informant can be said to be an additional precaution. It was further held that P.W.4 meticulously followed the provision of section 50 of the N.D.P.S. Act during search and seizure. It was further held that no illegality has been committed either by the informant (P.W.4) or the investigating officer (P.W.12) during deposit of the seized material objects at P.S. malkhana or submission of the same to S.F.S.L., Bhubaneswar for test. Learned trial Court further held that merely because P.W.12 reached at the spot during search and seizure, it cannot be said that there was any prejudice to the appellants as he was entrusted with the investigation of the case and thus, the prosecution has succeeded in proving that both the appellants were in conscious possession of the contraband Ganja and they were attempting for transportation of the same. Accordingly, the learned trial Court found both the appellants guilty of the offence charged.

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Mr. Anirudha Das, learned counsel appearing for the appellant Amresh Chandra Barik challenging the impugned judgment and order of conviction argued that independent witnesses like P.Ws.1, 2 and 3 have not supported the prosecution case of search and seizure and therefore, it would be too risky to rely on the version of the official witnesses only to convict the appellant of the offence charged. Though P.W.4 stated to have sent the written intimation

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regarding ground of belief and extract of Station Diary entry to P.W.12 as well as to S.P., Kandhamal through C/555 Bhagaban Sahoo but the said Constable was not examined during trial to substantiate such aspect and even no one from S.P.’s office has been examined to prove the receipt of any written intimation from P.W.4 and therefore, compliance of section 42 of the N.D.P.S. Act is a doubtful feature in the case. He argued that the brass seal used for sealing the seized bulk ganja packets and sample packets, though stated to have been left in the zima of P.W.2 but it was not produced in Court at the time of initial production of such packets in Court for comparison before being sent for chemical examination, even the brass seal was not produced during trial. Though in the forwarding report of the exhibits sent for chemical examination, it is indicated that facsimile seal impression of personal seal of P.W.4 taken on a separate sheet was sent for comparison but there is nothing on record regarding preparation of such a separate sheet or its production before the learned Special Judge or Magistrate for verification. He further argued that the evidence is lacking as to who received the seized contraband articles and kept it in P.S. Malkhana and all the articles seized were not kept in Malkhana and there is no material as to when it was taken out of Malkhana for being produced in Court and therefore, the safe custody of the articles is a doubtful feature and as such benefit of doubt should be extended in favour of the appellant.

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Mr. Subrat Kumar Das, learned counsel appearing for the appellant Premananda Sahu adopted the argument advanced by Mr. Anirudha Das, but added that in view of stringent punishment prescribed for the offence, the prosecution is required to prove its case beyond all reasonable doubt with clinching material on every aspect, which is lacking in the case.

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Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, supported the impugned judgment and contended that merely because independent witnesses did not support the prosecution case, the appellants cannot be acquitted particularly when there is clinching evidence adduced that packets containing contraband ganja were recovered from the exclusive and conscious possession of the appellants and the defence has failed to establish any kind of bias or enmity on the part of the Investigating Officer with the appellants. It is further contended that since the 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. It is further contended that even though the brass seal was not produced in Court at any point of time but when the packets containing contraband ganja were produced by P.W.12 in Court, those were found to be in sealed condition and there is no material that the seal had been tampered with, therefore, possibility of manipulation with the seized articles, cannot be accepted. It is further contended

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that the learned trial Court has discussed the evidence of witnesses carefully and also assessed the documents proved by the prosecution meticulously and has rightly came to the conclusion that the case against the appellants has been proved beyond all reasonable doubt and there is no illegality or infirmity in the impugned judgment and order of conviction and therefore, the appeals should be dismissed.

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Independent witnesses not supporting prosecution case :

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Adverting to the contentions raised by the learned counsel for the respective parties and coming to the first point canvassed by Mr. Das, learned counsel for the appellant Amaresh Chandra Barik relating to non-supporting of the prosecution case regarding search and seizure by the independent witnesses, it is true that the independent witnesses like P.Ws.1, 2 and 3 have not supported the prosecution case for which they have been declared hostile by the prosecution and allowed to be cross-examined by the learned Special Public Prosecutor under section 154 of the Indian Evidence Act, 1872, but merely because the independent witnesses have turned hostile, the evidence of the official witnesses on that score cannot be disbelieved. Conviction can be based solely on the testimony of official witnesses in an N.D.P.S. Act case but the condition precedent is that the evidence of such witnesses must be reliable, trustworthy and must inspire confidence. There is no absolute command of law that the testimony of the official witnesses should always be viewed with

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suspicion. Of course, while scrutinising the evidence, if the Court finds the evidence of the police officials as unreliable and untrustworthy, the Court may disbelieve them but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is based on the principle that quality of the evidence weighs over the quantity of evidence. The rule of prudence requires a more careful scrutiny of the evidence of the police officials, since they can be said to be interested in the result of the case projected by them. Absence of any corroboration from the independent witnesses does not in any way affect the creditworthiness of the prosecution case. Non-supporting of the prosecution case by independent witnesses in N.D.P.S. Act cases is a usual feature but the same cannot be a ground to discard the entire prosecution case. If the evidence of the official witnesses which is otherwise clear, cogent, trustworthy and above reproach is discarded in such cases just because the independent witnesses did not support the prosecution case, I am afraid that it would be an impossible task for the prosecution to succeed in a single case in establishing the guilt of the accused. Therefore, the Court has got an onerous duty to appreciate the relevant evidence of the official witnesses and determine whether the evidence of such witnesses is believable after taking due care and caution in evaluating their evidence. In case of

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Prasanta Kumar Behera -Vrs.-State of Orissa reported in

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(2016) 64 Orissa Criminal Reports 40 , it is held as follows:-

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"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 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."

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Therefore, the contentions raised that for non-supporting of the prosecution case relating to search and seizure by the independent witnesses, it is very risky to rely on the version of official witnesses cannot be accepted and hence discarded.

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Whether compliance of section 42 of the N.D.P.S. Act was a

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necessity :

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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 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

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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. 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.

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In case of State of Punjab -Vrs.- Baldev Singh

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reported in 1999 (II) Orissa Law Reviews (SC) 474 , it is held as

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follows:-

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“10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and

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sunrise, after recording the grounds of his belief. Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of his belief under the proviso to Sub-section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place . The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.”

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In the case in hand, the search and recovery of contraband ganja was made in a public place and that to during day time after receipt of reliable information, therefore, in view of the aforesaid decision, recording of reasons for belief and taking down of information received in writing with regard to the commission of an offence before conducting search and seizure was not necessary as it falls under section 43 of the N.D.P.S. Act and not under section 42 of the N.D.P.S. Act.

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However, P.W.4 has himself come up with a case of compliance of section 42 of the N.D.P.S. Act on receipt of reliable information and he stated to have made Station Diary entry no.450 dt. 26.09.2013 (Ext.18) and informed his authorities over telephone and also through Special Messenger. He proved the intimation letter

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to S.P., Kandhamal marked as Ext.5 regarding detection of the offence in which he enclosed the extract of Station Diary entry. The intimation letter is dated 26.09.2013 and it was received in the S.P.’s office on 27.09.2013 and the stamp of S.P., Kandhamal with date and signature in token of its receipt appears on Ext.5. P.W.12 seized Ext.5 from the office of S.P., Kandhamal under seizure list Ext.12. P.W.11 was the constable at D.P.O., Kandhamal who stated about the seizure of the intimation letter Ext.5 as per seizure list Ext.12. P.W.12 has also stated about the receipt of information from P.W.4. Of course, in the F.I.R., it is mentioned that written intimation regarding ground of belief along with the extract of Station Diary entry was sent through C/555 Bhagaban Sahoo, who was neither shown as a charge sheet witness nor examined during trial, but in my humble view, that by itself cannot be a ground to discard the entire ocular as well as documentary evidence adduced by the prosecution in that respect. Thus, even though compliance of provision under section 42 of the N.D.P.S. Act was not necessary in the case but it seems that P.W.4 has complied with the same and I find no infirmity in it.

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Non-production of brass seal or facsimile seal impression of personal seal in Court :

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In the F.I.R. (Ext.9), the informant (P.W.4) has mentioned that after all the exhibits were properly sealed by using his personal seal on wax, facsimile seal impression of his personal seal was

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embossed on the seizure lists and on two separate sheets of paper and then his brass seal was handed over to P.W.2.

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In his evidence, P.W.4 has stated to have affixed specimen seal on the sample packets and packets containing bulk quantity of ganja and then left his personal brass seal in zima of P.W.2 by executing Zimanama (Ext.3/1). His evidence is silent with regard to taking of any facsimile seal impression of his personal seal on separate sheets of paper.

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Though P.W.2 admitted his signature as Ext.3 in Zimanama but he did not support the prosecution case to have received the personal brass seal of P.W.4.

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The evidence of official witnesses like P.Ws.5, 8, 9 is also silent with regard to taking of facsimile seal impression of personal seal of P.W.4 on separate sheets of paper and also handing over of his brass seal by P.W.4 to P.W.2.

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Even though the brass seal impression appears on each of

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the seizure lists (Exts.1/3 & 2/3) and those seizure lists were proved by some official witnesses including P.W.9, the Tahasildar, Phiringia but in view of the evidence on record, it is too difficult to accept that facsimile seal impression of the personal brass seal of P.W.4 was taken on two separate sheets of paper and that brass seal of P.W.4 was handed over to P.W.2. Neither the brass seal stated to have been given to P.W.2 nor the facsimile seal impression of the personal brass

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seal of P.W.4 stated to have been taken on two separate sheets of paper was produced in Court when the seized articles along with the appellants were produced on 27.09.2013.

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The order sheet of the learned Special Judge dated

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27.09.2013 indicates as follows:-

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“.....The I.O. has produced material objects vide Exhibits A, B, C, D, E, A-1, B-1, C-1, D-1, E-1, A-2, B-2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 in sealed condition before this Court and also filed a petition praying to send the Exhibits A-1, B-1, C-1, D- 1 and E-1 to the Director, S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and opinion and to keep the Exhibits A, B, C, D, E, A-2, B-2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 in the District Court Malkhana on the grounds stated therein. Heard. Verified A, B, C, D, E, A-1, B-1, C-1, D-1, E-1, A-2, B- 2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 and found those to be in sealed condition and each of the exhibit contain signatures of witnesses Dolagobinda Sahu, Gobinda Chandra Patra, signature of weighman Bhabani sankar Sahu, signature of E.M., complainant and both the accused persons. Accordingly, the prayer is allowed. Two separate sealed packets are also filed by the I.O. The Malkhana Clerk is directed to receive and keep the exhibits A, B, C, D, E, A-2, B- 2, C-2, D-2, E-2, A-3, B-3, C-3, D-3 and E-3 in the Court Malkhana along with two separate sealed packets.

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Send the case record to the S.D.J.M., Phulbani for sending the Exhibits A-1, B-1, C-1, D-1 and E-1 to

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the Director, S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and opinion and return the case record after sending the material object.”

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On the very day, the case record was received by the

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learned S.D.J.M., Phulbani and he has observed as follows:-

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“.....I.O. has produced the Exhibits A-1, B-1, C-1, D- 1 and E-1 (sealed packets) before me. Verified the exhibits and the same are sent to the Director, S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and opinion vide this office L. No.1747(4) dt.27.09.2013. The case record is submitted to the Court of Sessions Judge –cum- Spl. Judge, Phulbani after sending material objects.”

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Production of sealed packets of seized contraband article

¶123

or sealed sample packets of such article in Court in itself is not sufficient to prove its safe custody before production. 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 such articles. The Court before which seized articles are produced is also required to insist on for the production of brass seal or at least verify the specimen seal impression with reference to the seals attached to the seized bags or the sample packets, if the samples are collected by the officer conducting search and seizure before its production in Court and such verification aspect should be

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specifically reflected by the Court in the order sheet. The prosecution is required to prove the proper sealing of seized articles and complete elimination of tampering with such articles during its retention by the investigating agency. In absence of such procedure being strictly followed, there is every chance of tampering with the articles or with the seal. The entire path of journey of the contraband articles from the point of its seizure till its arrival before the chemical examiner has to be proved by adducing cogent, reliable and unimpeachable evidence as in a case of this nature, the punishment is stringent in nature otherwise there would be every chance of prejudice being caused to the accused.

¶127

In the case in hand, no plausible explanation is coming forth from the side of the prosecution for non-production of the brass seal stated to have been given to P.W.2 or the facsimile seal impression of the personal brass seal of P.W.4 stated to have been taken on two separate sheets of paper at the time of production of seized articles in Court and even at the time of trial. In my humble view, it amounts to a serious lacuna in the prosecution case. Mere mentioning by the I.O. (P.W.12) in the forwarding report for chemical examination that the facsimile seal impression of the personal seal of P.W.4 taken in a separate sheet used for the purpose of sealing of the exhibits was also sent for comparison, is not sufficient.

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Therefore, taking of facsimile seal of personal seal of P.W.4 on separate sheets of paper and also handing over of his brass seal to P.W.2 remains shrouded in mystery and liable to be discarded.

¶131

Retention of seized contraband articles in safe custody :

¶132

P.W.12 has stated that he received the exhibits already seized and sealed by P.W.4 and kept the articles at P.S. Malkhana after due entry in the Malkhana register vide Entry no.27/13. On 08.11.2013, he seized Malkhana register of Phiringia police station on production by IIC, Phiringia police station in presence of witnesses and prepared seizure list Ext.10. He also proved the relevant entry in the Malkhana register of Phiringia police station vide page no.04 (sl. no.27/13) as Ext.20.

¶133

P.W.10 Bharat Kanhar who was the Homeguard attached to Phiringia police station also proved the seizure of Malkhana register

¶134

by P.W.12. On the perusal of the true copy of the Malkhana register (Ext.20), the entry no.27/13 dated 26.09.2013 indicates in column no.3 regarding receipt of one Micro max mobile phone, cash of Rs.5,800/-, bulk quantity of ganja kept in a plastic pocket weighing 20 Kg. 450 gms. marked as Ext.C, original sample ganja of 50 gms. marked as Ext.C-1, duplicate sample ganja of 50 gms. marked as Ext.C-2, another plastic packet of bulk quantity ganja marked as Ext.C-3, another bulk quantity of ganja kept in plastic packet weighing

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8 Kg. 850 gms. marked as Ext.D and original sample ganja of 50 gms. marked as Ext.D-2.

¶138

At this stage, on perusal of the evidence of P.W.4, it reveals that he has proved M.Os.I and II to be the packets containing bulk quantity of ganja, M.Os. III & IV to be the original containers (plastic bags), M.Os. V & VI to be the sample packets seized from the possession of appellant Amresh Chandra Barik, M.Os. VII & M.O. VIII to be the mobile phones and M.O. IX to be the driving licence of Amresh Chandra Barik respectively. Similarly, he has proved M.Os. X, XI, XII to be the packets containing bulk quantity of ganja, M.Os. XIII, XIV & XV to be the original containers (two plastic bags & one gunny bag), M.Os. XVI, XVII, XVIII to be the sample containing ganja and M.O. XIX to be mobile phone seized from the possession of the appellant Premananda Sahoo.

¶139

Thus, it is clear that all the articles seized by P.W.4 on 26.09.2013 were not entered in the Malkhana register (Ext.20) nor kept in Malkhana of Phiringia police station on 26.09.2013. No explanation is coming forth from the side of the prosecution as to where the other articles were kept. Even though number of material objects which were marked as exhibits were produced in Court on 27.09.2013 as reveals from the order sheet of the Court as indicated in the preceding paragraph but very few exhibits were kept in Malkhana. Out of the sample packets marked as Exts.A-1, B-1, C-1,

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D-1 and E-1 which were sent for chemical examination as per the forwarding report Ext.15 and were examined as per the chemical examination report Ext.22, only Ext.C-1 was entered in Malkhana register and not the other exhibits. The column no.5 of the Malkhana register which relates to where, when, by whom and the circumstances under which found has been left blank. Column no.6 which relates to date of receipt at police station is also kept blank, Column no.7 which relates to date and manner of disposal etc. has also been left blank.

¶143

In the case of Ramakrushna Sahoo –Vrs.- State of Odisha reported in (2018) 70 Orissa Criminal Reports 340 , it is held as follows:-

¶144

“Rule 119 of the Orissa Police Rules which deals with malkhana register states, inter alia, that all the articles of which police take charge, shall be entered in detail, with a description of identifying marks on each article, in a register to be kept in P.M. form No. 18 in duplicate, and a receipt shall be obtained whenever any article or property of which the police take charge is made over to the owner or sent to the Court or disposed 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

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register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court.”

¶148

No other staff of Phiringia police station including P.W.4, the Inspector in charge of Phiringia police station stated that all the articles seized under seizure lists Exts.1/3 and 2/3 were kept in the malkhana. Therefore, the keeping of the seized articles in safe custody before its production in Court is a doubtful feature.

¶149

In view of the foregoing discussions, when the brass seal of P.W.4 with which bulk quantity and sample packets of contraband ganja were sealed so also the specimen seal impression stated to have been taken in separate sheets were not produced in Court either at the time of production of the seized articles in Court for verification or during trial and when all the seized articles including four out of the five sample packets sent for chemical examination were not kept in the malkhana of Phiringia police station as is evident from Malkhana register and when the safe custody of the contraband articles seized before its production in Court on 27.09.2013 is a doubtful feature and tampering with the same during its retention by investigating agency is not completely ruled out, 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.

¶150

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

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the sentence passed thereunder is not sustainable in the eye of law.

¶154

Accordingly, both the Criminal Appeals are allowed. The

¶155

appellants Amresh Chandra Barik and Premananda Sahoo are acquitted of the charge under section 20(b)(ii)C) of the N.D.P.S. Act. The appellants who are now in jail custody be set at liberty forthwith, if their detention is not required in any other case.

¶156

Trial Court records with a copy of this judgment be sent

¶157

down to the learned trial Court forthwith for information.

¶158

................................
S.K. Sahoo
Judge
Orissa High Court, Cuttack
The 5 th April 2021/PKSahoo/Pravakar/RKM

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Page 27 of 27

Premananda Sahu v. State of Orissa

Case brief

What is this about?

What did the court decide?

Premananda Sahu v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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