Simanchal Swain Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.126 of 2019, CRLA Nos.498, 565 & 767 of 2018

(An application U/S. 374 of the Code of Criminal Procedure, 1973 against the judgment dated 02.06.2018 passed by Sri M.R. Dora, 2^nd ADSJ-cum-Special Judge, Puri in T.R. Case No.6-2-9 of 2017-2016, Regd. No.67 of 2015).

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(1) Simanchal Swain (in CRLA No.126 of 2019)

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…. Appellants

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(2) Pintu Sahu (in CRLA No.498 of 2018)

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(3) Sibananda Sethi (in CRLA No. 565 of 2018)

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(4) Pintu Palei (in CRLA No. 767 of 2018) -versus- State of Odisha …. Respondents

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For Appellant : Mr. S.K. Baral, Advocate (in CRLA No.126 of 2019) Mr. R.B. Mishra, Advocate (in CRLA Nos. 498, 565 & 767 of 2018)

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For Respondent : Mr. A. Pradhan, Addl. P.P.

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CORAM:

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JUSTICE G. SATAPATHY

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DATE OF HEARING AND JUDGEMENT: 13.01.2025

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G. Satapathy, J.

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1. These appeals U/S.374 of the Code of

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Criminal Procedure, 1973 (in short “the Code”) by the

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convicts named above is directed against the judgment dated 02.06.2018 passed by learned 2^nd Addl. District & Sessions Judge-cum-Special Judge, Puri in T.R. Case No.6-2-9 of 2017-2016/Regd. No.67 of 2015 convicting the present appellants and another(dead) for commission of offence punishable U/S.20(b)(ii)(C) of NDPS Act, 1985 and sentencing

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each of them to undergo Rigorous Imprisonment (R.I.) for a term of 10 years and to pay a fine of Rs.1,00,000/- each in default whereof to undergo R.I. for further one year with stipulation to set off the pretrial detention against the substantive sentence.

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Since the above appeals being directed against one and the same impugned judgment of conviction and sentence, the same are heard together and disposed of by this common judgment with the consent of the learned counsel for the parties.

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2. The prosecution case in short is that on 15.10.2015 at about 10.10 P.M. in the night while performing patrolling duty at Red Cross Road in between Railway Station and Badasankha, Puri,

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PW.4-Sri S.N. Rath, S.I. of Excise and staff detained

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one Maruti Wagnor Car bearing Regd. No.-OR-07U8485 coming speedily towards Puri Railway Station in front of Nigam Medical Store, Puri and found five persons including the driver with eight numbers of Air Bags and one Attachi (briefcase) inside the said car. On suspicion, PW.4 after procuring independent witness PWs.2 & 3 and observing all the formalities searched and recovered Contraband Ganja kept in packets wrapped with polythene by tearing each packets and thereafter, confirmed the contents of said packets to be Ganja by burning a small piece of it with fire and thereafter, PW.4 weighed the Contraband Ganja kept in five packets each in eight Air Bags and one Attachi, all total 45 packets each weighing 2Kgs and thereby, recovered 90Kgs of Contraband Ganja. On being asked, the five persons disclosed their names and addresses and four of them are the present appellants. PW.4 also accordingly, seized the Contraband Ganja, Air Bags, Attachi and the Maruti Wagnor Car under proper seizure lists and

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arrested the five accused persons including the appellants by informing them the grounds of their arrest U/S.52 of NDPS Act and sealed the eight Air Bags and Attachi by his personal brass seal after keeping the respective packets of Contraband Ganja and left the brass seal in the zima of PW.2 and took up the preliminary investigation of the case. On the next date on 16.10.2015, PW.4 forwarded all the accused persons to the Court as well as produced the seized Contraband Ganja before the learned Special Judge, Puri with a prayer to draw samples from each bag and accordingly, samples in duplicates from eight Air Bags and one Attachi were drawn in presence of learned S.D.J.M., Puri and the samples were handed over to PW.4, who transmitted the same to State Drugs Testing and Research Laboratory, Orissa, Bhubaneswar (SDTRL) under a copy of forwarding report of the learned S.D.J.M., Puri through Manas Kumar Mishra, an Excise Constable and thereafter, he submitted preliminary report of search, seizure and arrest of the accused persons in Form No.C/4 to the

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Office of Inspector of Excise, Puri, and later on the Wagnor Car was released in the interim zima of its owner namely Smt. Indira Mohapatra. After receipt of chemical examination report on 07.12.2015 and on completion of investigation, PW.4 submitted prosecution report against the present appellants and another.

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2.1. On finding a prima facie case, the learned Sessions Judge-cum-Special Judge, Puri took cognizance of offence U/S.20(b)(ii)(C) and transferred the record to the Court of 2^nd Addl. Sessions Judge-cum-Special Judge, Puri, who upon going through the materials placed on record and after hearing the parties, proceeded with the trial of the case by framing charge against the appellants and another for commission of offence U/S.20(b)(ii(C) of the NDPS Act resulting in trial in the present case. In support of its case, the prosecution examined all together four witnesses and relied upon 16 documents under Exts.1 to 16, the sample packets under Exts.A-1 to J-1 and Material

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Objects under MOs-I to LIV as against no evidence whatsoever by the appellants and another accused person. The plea of the accused persons-cumconvicts in the course of trial was denial simplicitor and false implication.

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2.2. After analyzing the evidence on record upon hearing the parties, the learned 2^nd ADJ-cum-Special Judge, Puri convicted the appellants and another for offence U/S.20(b)(ii)(C) of the NDPS Act and sentenced each of them to the punishment indicated in the 1^st paragraph. Being aggrieved, the present appellants and another have preferred this appeal, but the another person who had preferred appeal having died during the pendency of the appeal, such appeal stood abated.

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3. In assailing the impugned judgment of conviction, Mr. S.K. Baral and Mr.R.B.Mishra learned counsels for the respective appellants mainly challenges the conviction of the appellants on two grounds; firstly, non-compliance of mandatory

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provisions of NDPS Act and secondly, improper appreciation of evidence.

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3.1. In reply, Mr.Amitav Pradhan, learned Addl. Public Prosecutor, however, vociferously submits that since the Contraband Ganja was detected from the convicts during transit, the compliance of Sec. 42 of NDPS Act is not required, rather it would be covered by the provision of Sec. 43 of NDPS Act where no compliance regarding recording of information and sending a copy thereof to the higher officer are required. Mr.Pradhan also submits that the Contraband articles were produced before the learned SDJM, Puri who collected the samples and dispatched it to SDTRL for chemical analysis and thereby, there is sufficient compliance of Sec. 52-A of the NDPS Act. It is also submitted by Mr.Pradhan that the Contraband articles being deposited in Court Malkhana immediately after producing it before the learned Special Judge ensures the compliance of Sec.55 of NDPS Act. Mr.Pradhan, however, does not dispute about independent seizure witness not

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supporting the prosecution case, but he, however, submits that the evidence of official witness be reliable, clear and cogent, conviction can be based on such evidence and the learned trial Court has not committed any illegality in basing conviction of the appellants on the evidence of the official witnesses.

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4. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of the evidence, this Court considers it apposite to re-evaluate the evidence on record in the light of rival submissions to find out as to whether the mandatory provisions of NDPS Act has been complied with or not, or the learned trial Court has fallen in error in appreciating the evidence to base conviction of the appellants. Admittedly, in this case, the independent witnesses have not supported the prosecution case, but law is also very clear that the evidence needs to be weighed, but not to be counted and if the evidence of official witnesses is found to be reliable, worthy and convincing, the same can be relied upon to base conviction of the accused persons

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in a criminal case. It is also not in dispute that where the penal statute provides for higher punishment, the proof of the guilt of the accused for the offence must be stricter. The prosecution case as forthcoming from the materials on record discloses a case about Excise officials detecting the case while performing patrolling duty and thereby, it is a case by chance. However, it is trite law that if the officer concerned receives any information or has reason to believe with regard to concealing of Contraband articles in any building, conveyance or enclosed place between sunrise and sunset while he is on move either on patrol duty or otherwise and such information or his belief calls for immediate action and any delay would likely to result in the Contraband or evidence relating to keeping such Contraband concealed being removed or destroyed and thereby, it would not be feasible or practical to take down in writing such information of belief in such situation, the said officer could take action in terms of the provisions of Sec. 42 of the NDPS Act, but such taking up action in terms of Sec.

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42 of NDPS Act must be subsequently recorded in the Register prescribed for it and copy thereof shall within 72 hours be sent to his official superior. The aforesaid statement is not an empty formality, rather is a mandatory requirement under law as emanates from Sec. 42 of NDPS Act.

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5. In this case, the learned Addl. Public Prosecutor has undoubtedly tried to convince the Court that since the Contraband Ganja was detected as a chance recovery and the same being recovered while in transit being found to be carried on a vehicle, there is no requirement of compliance of Sec. 42, rather the case would be covered by Sec. 43 of NDPS Act, but such assertion of learned Addl. Public Prosecutor is not in terms of statute as provided in Sec. 42 of NDPS Act. In this regard this Court is also fortified with the decision in State of Rajasthan vrs. Jag Raj Singh @ Hansa; (2016) 11 SCC 687 wherein after taking note of the evidence on record about private Jeep although being used for transporting passengers, but the same having been

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without any permit for transporting passenger as a public transport vehicle, the Apex Court held such personal Jeep not to be a public conveyance within the meaning of explanation to Sec. 43 and thereby held for requirement of compliance of Sec. 42 of NDPS Act in that case. Admittedly, it is the consistent case of the prosecution that the appellants were found in possession of Contraband Ganja in a Wagnor Car bearing Registration No. ORO7U-8485. It is also stated by raiding officer-cum-PW4 that he had seized the said car and released it in zima of its owner under a zimanama and thereby, no evidence being tendered by prosecution to establish that the said Wagnor car being a public vehicle, it can be safely said that the car in question was a private car. On a careful glance of provision of 42 of the NDPS Act, the Wagnor car being used as a private conveyance in this case, any information regarding keeping concealed any Contraband Ganja in the said car or the reason of belief of the raiding officer about concealing Contraband Ganja in the said car would require

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compliance of Sec. 42 of NDPS Act. In this regard, this Court considers it apt to reiterate the law down by Apex Court in Karnail Singh Vrs. State of Haryana; (2009) 8 SCC 539 , wherein a constitutional Bench of the Apex Court while answering a reference has recorded its conclusion in paragraph-35 which is extracted under:-

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“35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

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(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 register concerned 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).

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(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

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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 .

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(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 postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

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(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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

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the 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.”

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Further, Sec. 42(1) of the NDPS Act makes it ample clear that if the officer has reason to believe from personal knowledge or information given by any person and taken down in writing has to make such officer to comply Sec. 42 of NDPS and Sec. 42(2) makes it imperative for such officer who has taken down any information in writing under Sub-section (1) or records ground for his belief under the provision thereto, he shall within 72 hours send a copy thereof to his immediate official superior. In this case, of course PW4 had not got any opportunity to record information prior to conducting such seizure, but he had to comply the requirement of Sec. 42 of NDPS Act after completing the search and seizure in view of the law laid down by Apex Court in Karnail

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Singh(supra) , but the evidence of prosecution witness, more particularly the testimony of PW4 does not disclose about him complying Sec. 42(1) or (2) of NDPS Act which is mandatory in nature and noncompliance of such provision would vitiate the conviction of the appellant as held by the Apex Court in Karnail Singh(supra) . It is thus, very clear that once there is infraction of compliance of Sec. 42, it would ensure to the benefit of the accused and in this case the conviction of the appellants would be vitiated on that score only.

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6. On coming back to see the mandatory compliance of Sec.52-A of the NDPS Act, it appears that the representative sample(s) is/are required to be taken in the presence of Magistrate who in addition of allowing to draw representative sample(s) of such drugs or substances in his presence has to certify the correctness of any list of samples so drawn. A brief reference to the evidence of PW4, the Raiding Officer, it transpires that PW4 opened all the packets and took a small piece from each packets and

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tested it by smell and burning it and thereafter he sealed all these packets by means of paper through his personal brass seal and seized the same under proper seizure list Ext.1 and released his personal brass seal in zima of witness Bankanidhi Pradhan under Zimanama Ext.2, however, the said Bankanidhi Pradhan having been examined as PW2 has disowned such facts. At the same time, the evidence of PW4 further transpires that as per order of the Court, he produced the seized articles before the Court of learned SDJM, Puri and collected samples from each packets found from each bags and sealed the same by marking it as Ext.A-1 to J-1, but nowhere in the evidence it is stated by PW4 that the learned SDJM has certified the correctness of the list of samples so drawn as mandatorily required U/S. 52-A(2)(c) of the NDPS Act. In addition, the personal brass seal of PW4 which was handed over to PW2-Bankanidhi Pradhan has never seen in the light of day because it was neither produced in the Court nor any independent evidence was tendered to say that it was kept in the

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zima of PW2 till it was taken over by PW4. What is most important is that the samples so collected on 16.10.2015 was sent to SDTRL, Bhubaneswar through Constable Manas Kumar Mishra who produced the same before the SDTRL on 17.10.2015, but neither the said Manas Kumar Mishra was examined in this case nor any evidence was produced by the prosecution to say that the samples were under the safe custody till it were produced before the SDTRL which is an important requirement of Sec. 55 of the NDPS Act. It is also not known as to under whose custody the samples were kept till it was produced before SDTRL on 17.10.2015. The aforesaid evidence gains further significance by the admission of PW4 that he had not produced the seized articles before any police officer of nearby police station and he cannot say, if the seized articles were kept in their office Malkhana during the night of its recovery. Further, no Malkhana Register was tendered in evidence to establish the safe custody of the sample packets, so also the bulk Ganja packet till it was

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deposited before the Court Malkhana. The above evidence clearly makes out a case for infraction of Sec. 55 of NDPS Act which is not an empty formality, but it casts a duty on the Raiding Officer to take charge of the seized articles till delivery for safe custody of the Contraband as contemplated U/S. 55 of the NDPS Act, which further provides that if any Contraband Ganja is seized, the same shall be delivered to Officer-in-charge of a nearest Police Station for safe custody pending orders of Magistrate.

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7. It is also found from the record that the list of sample packets which were collected in presence of Magistrate has not been certified by the Magistrate about its genuineness and if the same is read together with the evidence and discussions made hereinabove, it would disclose a case of infraction of Sec. 52-A of NDPS Act. What would be the consequence of non-compliance of Sec. 52-A (2) of the NDPS Act has been well explained by the Apex Court in Simarnjit Singh Vrs. State of Punjab; (2023) SCC OnLine SC 906 , wherein the Apex Court after extensively quoting

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paragraphs-15 to 17 of the decision in Union of India Vrs. Mohanlal and another; (2016) 3 SCC 379 has allowed the appeal by setting aside the conviction of the appellant therein for offence punishable under Section 15 of NDPS Act. For better appreciation, paragraphs-15 to 17 of the decision in Mohanlal and another (supra) are extracted below:

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" 15. It is manifest from Section 52A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer- in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-incharge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the

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Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

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17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub- sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."

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8. In view of the discussions made

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hereinabove and on re-appreciation of evidence on record together with the fact that the prosecution has failed to prove the mandatory compliance of Sec. 42, 52-A(2) and 55 of NDPS Act, this Court has no option left, but to conclude that the impugned judgment of conviction is unsustainable in the eye of law and is required to be set aside.

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9. In the result, the appeals stand allowed on contest, but in the circumstance there is no order

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as to costs. Consequently, the impugned judgment of

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conviction and the order of sentence passed by learned 2^nd Addl. District & Sessions Judge-cumSpecial Judge, Puri in T.R. Case No.6-2-9 of 20172016/Regd. No.67 of 2015 are hereby set aside.

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Accordingly, the appellants/convicts are acquitted of the charge and they be set at liberty forthwith, if their detention is otherwise not required in any other case.

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(G. Satapathy) Judge

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Orissa High Court, Cuttack, Dated the 13^th day of January, 2025/S.Sasmal

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Signature Not Verified

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Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 20-Jan-2025 14:42:21

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Simanchal Swain v. State of Odisha

Case brief

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Simanchal Swain v. State of Odisha

Case brief

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