Pradeep Mohanty@Babaji Mohanty Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.471 of 2021

In the matter of a Memorandum of Appeal under Section 374(2) of the Code of Criminal Procedure

Pradeep Mohanty @ Babaji Mohanty …. Appellant
-versus-
State of Odisha …. Respondent
For Appellant :M/s. Rakesh Behera, Advocate
For Respondent :M/s. C.K. Pradhan, Addl.Govt. Advocate
CRLA No. 475 of 2021
Manas Ranjan Tripathy …. Appellant
-versus-
State of Odisha …. Respondent
For Appellant :M/s. B.K. Behera-1, M.R. Parichha, D. Jagat, Advocate
For Respondent : M/s. C.K. Pradhan, Addl.Govt. Advocate

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CRLA Nos. 529 of 2021

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Ayub Sahu & Aju Sahu Appellants

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-versus-

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State of Odisha …. Respondent

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For Appellant : M/s. S. Dash, For Respondent : M/s. C.K. Pradhan, Addl.Govt. Advocate

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PRESENT:

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THE HONBLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY

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----------------------------------------------------------------------------Date of Hearing:10.10.2025 and Date of Judgment:09.01.2026 -----------------------------------------------------------------------------

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Biraja Prasanna Satapathy, J .

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1. Since all these three appeals arise out of a common judgment passed by the learned First Additional Sessions Judge, Rourkela in Special G.R. Case No.6 of 2019, all the appeals were heard analogously and disposed of by the present common order.

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2. Learned Special Judge vide the impugned judgment dt.16.08.2021 convicted all the three appellants

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for the offence under Section 20(b)(ii) (C) of the NDPS Act and Section 29 of the Act. While convicting the appellants for the aforesaid offences, they were sentenced to undergo R.I for a period of 10 (ten) years and to pay a fine of Rs.1, 00,000/- (Rupees One lakh only) each for the offence under Section 20(b)(ii)(C) of the NDPS Act and in default, each of them to undergo R.I for another 2(two) years.

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3. The case of the prosecution is that on 12.11.2019 at about 7:15 PM, the informant Uday Kumar Sahu, SI of Police, presented a written report stating therein that on the same day the IIC, R.N Palli PS received an information from reliable source that contraband ganja is being transported from Kandhamal to Rourkela in a silver colour Indigo ECS vehicle bearing OR -03 registration number. The IIC entered the said fact in SDE No. 10 and thereafter he along with ASI PK Jena, Havildar AP Samal, Constable UK Swain, Constable P.B. Chardia and constable UC Pradhan were directed vide GD Entry No. 12 and command certificate no. 393 dated 12.11.2019 to proceed to Panposh Chowk on NH 143 for conducting MV checking to verify the veracity of the information. Accordingly, he

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along with other staffs and independent witnesses namely Asish Jaiswal and Shankar Shaw proceeded to Panposh Chowk in official jeep driven by Assistant Driver Sribasta Behera. At Panposh Chowk they performed MV checking with an intention to track the suspected Indigo ECS. At about 3.15 PM, they could detect an Indigo car bearing Regd No. OR-03G 5622 coming from Sundargarh side. It was signaled to stop, but without stopping the said vehicle proceeded towards Jalda side. Accordingly, the vehicle was chased and could be detained at about 3:30 PM at Ruptola Chowk in presence of independent witnesses. It was noticed that inside the vehicle three persons were present. On being asked, they disclosed their names to be Manas Ranjan Tripathy, Ayub Sahu and Pradeep Mohanty. They all admitted to have been transporting ganja. Further, Ayub Sahu disclosed that they have been supplying ganja to Bapi Parida, Ashok Swain and Amulya Kumar Rout and also to some other persons.

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3.1. It was further reported that from inside the said vehicle smell of ganja was coming out and two large packets were found loaded inside the vehicle. At 3:35 PM,

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he informed the fact of detention of the vehicle loaded with

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ganja and suspected persons to the IIC over phone and to the DCO ASI R.N Das. It was further reported that he served notices on the three persons found inside the car as to whether they intend to be searched before an Executive Officer or Gazetted Officer in compliance with Section 50 of NDPS Act. Those persons, in turn, exercised their option in writing that they wanted to be searched before an Executive Magistrate and such fact was intimated to the IIC over phone. While waiting for the arrival of the Executive Magistrate, Havildar AP Samal was commanded at 5:30 PM for arranging a weighman for weighing the contraband Ganja and also to bring a tailor for stitching cotton bags for packing those contraband Ganja. At around 4:00 PM, Havildar AP Samal arrived with one tailor namely Sk. Mustaque Ali and weighman namely Sushil Kumar Gupta along with digital weighing machine.

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3.2. At 5.45 PM, Executive Magistrate Dilip Kumar Tripathy arrived at the spot and after his arrival he was explained about the purpose of his visit to the said spot. Thereafter the police staff, Executive Magistrate

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introduced themselves to those three persons detained at

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the spot and also gave their personal search and upon such search no incriminating or contraband articles were found from them. According to the informant, on personal search of accused Manas, who was the driver of the vehicle two mobile phones and cash of Rs 3700/-were recovered and the same were seized in presence of the independent witnesses and Executive Magistrate. On search of accused Ayub, two mobile phones, cash of Rs 9800/-, ATM cards and his driving license were recovered and the same were also seized in presence of the independent witnesses and Executive Magistrate. Similarly, on search of accused Pradeep one mobile phone and cash of Rs 50,500/- was recovered and the same were also seized in presence of independent witnesses and Executive Magistrate.

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3.3. Thereafter, the vehicle was searched in presence of two independent witnesses and plastic gunny bags having ganja smell was found. Both the bags were brought out of the vehicle. When the first bag was opened, 44 numbers of identical cello tape wrapped polythine packets containing

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contraband ganja was found. Some of those individual small identical packets were weighed and they came to be one kilogram in average. Those individual polythene packets were opened, and the ganja were heaped on to a dari making a homogeneous mixture and then was weighed by the weighman and on such weighment, the weight of such ganja came to be 44 kgs. Thereafter, such homogeneous heap of ganja was packed in a plastic gunny bag which was marked as "Package-1". From it, two samples of Ganja, each weighing 25 grms were drawn which were packed and sealed separately in polythene pouches marked as "Original Sample-1" and "Duplicate Sample-1". The net weight of the bulk ganja after drawl of samples came to be 43.950 kg.

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3.4. Then the second bag was opened and from it 34 numbers of identical cello tape wrapped polythene packets containing contraband ganja was recovered. The polythene packets were opened and were made one homogeneous mixture and then was packed into another plastic gunny bag which was when weighed came to be 34 kgs. Such plastic bag was marked as "Package No. 2." From it two

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samples of ganja each weighing 25 grams were drawn, which were packed and sealed separately in polythene pouches marked "Original Sample-2" and "Duplicate Sample-2". The net weight of the bulk ganja after drawl of samples came to be 33.950 kgs. The same were sealed properly by using his personal brass seal and sample drugs were again sealed in paper envelopes. The sample ganja marked as "original sample-1" and "original sample - 2" along with the Test memo were kept in a large size envelope for the purpose of sending it to RFSL for examination and was marked as "secret drugs sample/test memo." Thereafter, the vehicle, two bulk ganja packets, two envelopes containing samples, one large envelope marked as Secret Drug sample, 78 number of empty wrapped polythene kept in another plastic bag and the dari used for heaping homogeneous mixture of seized ganja were seized at 6:30 P.M. in presence of independent witnesses and the Executive Magistrate. The brass seal that was used for sealing purposes was left in zima of independent witness Asish jaiswal. The weighing machine was seized from Sushil Kumar Gupta and was left in his

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zima. Both the tailor and the weighman were paid their

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dues. It was then reported that the accused persons as well as the seized items were brought to the police station and then the written report was filed. On the basis of the said written report, IIC R.N Palli PS registered a FIR in R.N Palli PS Case No. 289/2019 against all the above-named accused persons for commission of offences under Section 20(b)(ii)(C) of the NDPS Act (in short, “the Act”).

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4. It is contended that after completion of the investigation, final form was submitted on 11.05.2020 against 7(seven) numbers of accused persons which includes the present 3(three) appellants for the offence under Section 20(b)(ii)(C) of the NDPS Act and Section 120-B of the Indian Penal Code. But vide order dt.18.12.2020, learned Special Judge framed charge against all the 7(seven) accused persons, for commission of offence under Section 20(b) (ii) (C)/29 of the Act.

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4.1. Basing on such charge framed, all the Seven accused persons though faced the trial, but save and except the present 3(three) appellants, the other four accused persons were held not guilty of the charges and Page 9 of 73

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accordingly were acquitted vide the impugned judgment dt.16.08.2021. However, the present appellants were convicted and sentenced for the offence under Section 20b (ii) (C)/29 of the Act and have been sentenced to

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undergo R.I for 10(ten) years and to pay a fine of Rs.1, 00,000/- (Rupees one lakh) each, in default, R.I for further 2(two) years.

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4.2. Learned counsels appearing for the appellants while assailing the impugned order of conviction and sentence, contended that since the provisions contained under the Act were never followed, which are mandatory requirements, the order of conviction and sentence so passed against the appellants cannot be sustained.

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4.3. With regard to the illegalities and irregularities committed during investigation, learned counsels appearing for the appellants contended that the contraband was seized from the vehicle OR-03-G 5622 on 12.11.2019 and the occurrence took place in between 3.15 P.M to 6.30 P.M. After seizure of the contraband, F.I.R was lodged by the S.I. of police, who was leading the search party-P.W.7 in Raghunathpalli Police Station at Page 10 of 73

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about 7.15 P.M. All the 3(three) appellants were arrested

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from the spot and remanded to custody on 13.11.2019.

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4.4. It is contended that even though the case involves seizure of contraband, but while making such seizure of the contraband, the brass seal which was used to seal the bulk contraband as well as the samples, was never produced before the Court. Since the brass seal which was used to put the seal on the bulk contraband so marked as M.O.II as well as the samples marked as M.O.III and M.O.IV, it casts a serious doubt with regard to the contraband seized from the vehicle so marked as M.O.II and safe custody of the contraband during the intervening period between seizure and production before the Court, becomes very much doubtful.

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4.5. Even though P.W.7 in Para 28 of his deposition contended that he handed over the brass seal to P.W.6, but the same was never produced before the Special Court at the time of production of the contraband. P.W.7 in his cross-examination in para-43 also admitted that he had not taken the impression of the brass seal in a plain paper

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and it was never submitted before the Court for

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inspection.

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4.6. It is also contended that even though P.W.7 in para-28 of his deposition contended that he handed over the brass seal to P.W.6, but P.W.6 in his cross examination at para-18 contended that the brass seal was handed over to him at the Police station after receipt of the summon in the case. Statement of P.W.7 in para-28 and 43 of his cross-examination and that of P.W.6 in para-18 reads as follows:

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P.W.7

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28. I handed over my brass seal to the independent witness Asish Jaiswal with a direction that he will produce the same as and when directed by the Court. This is the said zimanama that was executed while handing over the brass seal to Asish Jaiswal already marked as Ext.16 and this is my signature appearing therein marked as Ext.16/2. This is my personal bras seal which I handed over to Asish Jaiswal already marked as MO-VII.

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Xxx xxx xxx

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43. I cannot say the last of renewal and the period to which such renewal was valid in respect of the said weighing machine which was used in the instant case for weighing the ganja. The specimen impression of the brass seal that was used in the instant case for sealing the contraband articles has not been taken in a plan paper and was not submitted before the Court for inspection.

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P.W.6

18. I have given all my signatures in connection with the present case at the police station. By the time I had signed over the seizure lists nothing was written over it. It is a fact that the brass seal was handed over to me at the police station after I received summons in the instant case.

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4.7. It is also contended that even though learned Special Judge in para-71 of the judgment came to a conclusion that impression of the brass seal is present on the test memo found inside the sample packet, but the said test memo was never exhibited by the prosecution through the P.Ws. P.W.7, in para-44 of his deposition clearly contended that such a test memo is not available in the case record. It is accordingly contended that on the face of such admission made by P.W.7, learned Special Court could not have held that impression of the brass seal, is present in the test memo. It proves that the brass seal used during seizure was not produced before the Court, at the time of production of the contraband and the sample packets.

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4.8. It is contended that since the Test memo was never produced and exhibited, learned Special Judge could not have referred to such a document to satisfy the lacunae in

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the prosecution case. Since NDPS Act is a stringent law

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which provides for stringent punishment for possession of contraband, in absence of the test memo being exhibited, learned Special Judge could not have upheld that since impression of the brass seal is present on the test memo found inside the sample packet, it clearly proves that the brass seal was used during seizure of the contraband and the sample packets. In support of such submission, with regard to the non-production of the brass seal by the prosecution and its impact, reliance was placed to the following decisions of this Court.

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1. Amresh Chandra Barik & Others vs. State of Odisha, 2021(I) OLR 992.

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2. Sk. Sahir Khan vs. State of Orissa, (2023) 91 OCR 208.

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4.9. This Court in the case of Amresh Chandra Barik

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in para-10 & 12 has held as follows:

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Production of sealed packets of seized contraband article 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

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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 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 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.

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xxx xxx xxx

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12. 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 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

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section 20(b)(II) (C) of the N.D.P.S. Act against the appellants beyond all reasonable doubt

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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.

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Accordingly, both the Criminal Appeals are allowed. The 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.

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Trial Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.

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4.10. This Court in the case of Sk. Sahir Khan in para-

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8(iv) has held as follows:

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8(iv) xxx xxx xxx

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Law is well settled as held in the case of Herasha Majhi-Vrs.-State of Odisha reported in MANU/OR/0529/2019: 2020 (1) ILR-CUT-197 that the prosecution has to prove that the contraband articles produced before the Court were the very articles which were seized and the entire path has to be proved by adducing reliable, cogent, unimpeachable and trustworthy evidence. Since the punishment is stringent in nature, any deviation from it would create suspicion which would result in giving benefit of doubt to the accused.

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xxx xxx xxx

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In the case in hand, even though after the samples were drawn and the seized article were produced in police station, those were kept in police malkhana as appears from the oral as well as documentary evidence, but in my humble view, it is not sufficient. itself to completely rule out tampering with the same. When the prosecution is producing the brass seal at the time of production of seized articles and

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the seizure containing brass seal Impression was produced on 25.01.2011, it was the duty of the learned Special Court to verify at least the brass seal impression appearing on the seizure list with the seal impression available on the sample packets as well as on the bulk quantity of ganja packet which were produced on 27.01.2011 and marked as Exts. A/1, A/2, A and also to verify whether the seals appearing on the seized articles are in proper condition or not, but the same has not been done nor verified. Therefore, I am of the humble view that it is a fit case where benefit of doubt should be extended in favour of the appellants.

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4.11. Learned counsel appearing for the appellants made further submission contending inter alia that not only prosecution failed to prove that the contraband seized with the sample, was sealed by use of the brass seal, which was never proved, but also there is serious doubt about sealing of the contraband by the said brass seal in question. It is contended that P.W.7 in his deposition in para-14 though submitted that he directed P.W.3 to get a tailor and weighman and also directed P.W.3 to get his personal brass seal and other materials kept in the NDPS kit from the Police Station. But P.W.3 in his deposition contended that he was only asked by P.W.7 only to get a tailor and weighman and he went to the spot with the tailor and weighman, but not with the NDPS kit. The aforesaid lacuna in the prosecution was also admitted by

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P.W.7 in para-14 of his deposition. Para-14 of the

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deposition of P.W.7 reads as follows:

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14 . I intimated IIC, RN Palli P.S about the option exercised by each of the accused persons with regard to their search in presence of Executive Magistrate. At around 3.50 P.M, I directed Havildar Amulya Prasad Samal to get a tailor and a weigh man to the spot. I also directed him to get my personal brass seal, lac, candle and other NDPS kits and my personal Laptop from the police station.

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4.12. It is also contended that there is serious doubt about the safe custody of the contraband as well as samples drawn from the bulk contraband on the date of occurrence. It is contended that even though the bulk contraband was seized with preparation of the samples vide M.O.II, III and IV, but after such seizure of the contraband, when the same was kept in the Malkhana of the concerned Police Station, there was no entry made with regard to such seizure of the contraband when the same was taken for production before the Special Court. The lacunae on the part of the prosecution regarding not making any entry in the Malkhana Register, when the seized contraband was taken from the Malkahana before the Special Court, was also admitted in Para-74 of the judgment. Even though learned trial Court came to a

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finding that no entry was made when the bulk contraband as well as the samples were taken from the Malkhana to the Court, but with a view that said entry was made vide Station Diary Entry under Ext.54, overlooked such lacuna of the prosecution.

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4.13. It is also contended that no entry was made when the sample packets M.O.III and M.O.IV were kept in the Malkhana, after the same was brought back from the Court on 13.11.2019. The aforesaid fact is also admitted by P.W.19 in his cross examination, more particularly; in Paragraph-14 . Not only that P.W.19 in para-25 of his examination, also deposed that the samples were taken out of the police Malkhana on 14.12.2019 and a Command Certificate was issued to Constable L. Ekka for taking the sample to RFSL, Sambalpur. However, no entry was made in the Malkhana Register regarding taking out of such sample packets and handing it over to Constable

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L. Ekka. Not only that, P.W.19 in his cross-examination at Para-47 also admitted that command certificate issued to Constable L. Ekka has not been seized. Not only that the said Constable was also not examined as a witness in

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the case. Statement of P.W.19 in para-14, 25 and 47

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reads as follows:

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14. On 13 11.2019 1 forwarded all the accused persons arrested till then to the Court of Special Judge, Rourkela. The escort party which escorted the accused persons to the Court were also handed over the seized ganja and were commanded to produce the same before the Special Court.

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The said fact was entered in station diary entry No.10 dated 13.11.2019 marked as Ext.54 (with objection).

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25. On 14.11.2019 the exhibit kept at Malkhana was brought out and a command certificate was issued to one constable No. 1069. L. Ekka to proceed to RFSI, and deposit the said exhibit there. Accordingly, Sri L.Ekka proceeded to RFSL and deposited the exhibit on 14.11.2019 and obtained the receipt from RFSL, Sambalpur with regard to such deposit. This is the said acknowledgement receipt issued by RFSL, Sambalpur with regard deposit of exhibit marked as Ext.61.

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47. On 14.11.2019 the exhibit kept at Malkhana was brought out and a command certificate was issued to one constable No. 1069. L. Ekka to proceed to RFSI, and deposit the said exhibit there. Accordingly, Sri L.Ekka proceeded to RFSL and deposited the exhibit on 14.11.2019 and obtained the receipt from RFSL, Sambalpur with regard to such deposit. This is the said acknowledgement receipt issued by RFSL, Sambalpur with regard deposit of exhibit marked as Ext.61.

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4.14. It is accordingly contended that since the

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movement of the sample packets from the Malkhana to RFSL, Sambalpur was made without any entry in the Malkhana Register; it creates serious doubt over the

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genuineness and authenticity of the samples so taken

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from the Malkhana to the laboratory at Sambalpur.

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4.15. It is also contended that P.W.7, who seized the contraband and made the samples during the relevant point of time, was also the Malkhana In-charge. Therefore, manipulation with the sample by P.W.7 cannot be ruled out.

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4.16. With regard to not making any entry in the Malkhana Register, while taking the sealed contraband from the Malkhana to the Court, it is contended that the same is violative of Rule 119 of the Orissa Police Rules. As per the said Rule, every article which the police takes charge, shall be entered in the Malakhana Register and a receipt shall be obtained, whenever any such article is made over to the owner or sent to the Court, number of such receipt shall be entered in the Register. Since in the case in hand, the said provision was never followed, there is serious doubt with regard to the production of the sample before the Court and so also taking the same to the laboratory through Constable L. Ekka. In support of

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the aforesaid submission, reliance was placed to a

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decision of this Court reported in Ramakrushna Sahu

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and Others Vs. State of Orissa, 2018 (1) ILR CUT 599

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has held as follows:

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

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4.17. Learned counsel appearing for the appellants also made further submission contending inter alia that even though the prosecution has taken the plea that the bulk contraband as well as the samples were seized and

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sealed in presence of the Executive Magistrate-P.W.14, but, in view of the statements of P.W.19 vis-à-vis P.W.7 and so also of P.W.14, the same is not out of suspicion.

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4.18. Even though P.W.19, the I.O of the case in Para-5 of his deposition stated that at about 3.40.P.M on 12.11.2019, he got information from P.W.7, the

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Seizure Officer, who was at the spot, that the accused persons want to be searched before an Executive Magistrate, but the Command Certificate was issued by P.W.19 to P.W.17 (Ext.33) to make a requisition of the Executive Magistrate. Since P.W.19 in his evidence submitted that he got the information at 3.40 P.M from P.W.7 to make requisition of the Executive Magistrate, as the accused persons went to be searched before him, the Command Certificate by P.W.19 in making the requisition at 3.30. P.M could not have been done.

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4.19. It is also contended that P.W.17 in his crossexamination clearly acknowledged that the Command Certificate, so issued by P.W.19, though was produced in the Office of S.D.M, Panposh vide Ext.3, but no such signature acknowledging the same was taken, while making such a requisition. P.W.17 in para-6 of the deposition also admitted that while taking the Command Certificate from P.W.19, he has not put his signature on the Issue Register. It is also admitted that no staff from the office of S.D.M, Panposh was examined, to show that

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the Command Certificate was in fact received in the

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office of S.D.M. Panposh. From the aforesaid statement of P.W.19 vis-à-vis P.W.17, it clearly shows that the Executive Magistrate never remained present at the spot and no such requisition was ever sent to the Executive Magistrate to be at the spot and everything has been manipulated, subsequently. Statement of P.W.17 in his cross-examination in para-6 reads as follows:

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6. It is a fact that Issue Register is maintained at the police station. I have not put my signature on the said Register at the time of receiving the letters carrying the information and the requisition for deputation of an Executive Magistrate, before I proceeded to the Office of SDPO, SP, Rourkela and SDM, Panposh. It is a fact that behind Ext.33, I have stated in writing that I returned back from the spot to the police station with the police staff and the Executive Magistrate proceeded on his own.

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4.20. It is also contended that P.W.15 who happens

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to be the weighman in his deposition clearly stated that, by the time he reached the spot, he saw the vehicle being surrounded by the Police staff and an outsider, who is not a police staff. After his presence near the spot, the bulk contraband was taken out of the car and was weighed by him. But P.W.15 in his statement nowhere mentioned that, while making such weight of the bulk contraband, P.W.14 was present at

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the spot. Similarly, P.W.4, who came to the spot at the same time as that of P.W.14, in his evidence did not make any mention that P.W.5 was present during recovery and seizure. Similarly, P.W.15 in his evidence submitted that by the time he reached the spot, he only saw P.W.15 at the spot. P.W.15 in his crossexamination also clearly admitted that he has not provided any certificate to the I.O or the Inquiry Officer, after completion of the search, seizure and sealing of the contraband as well as the sample.

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4.21. It is further contended that since the bulk contraband as well as the samples were not seized in presence of the Executive Magistrate and such presence of the Executive Magistrate, in view of the statement of P.W.15 vis-à-vis P.W.4 are doubtful, it is to be held that the samples were never drawn at the spot in presence of the P.W.14 and accordingly that amounts to non-compliance of the statutory provision contained under Section 52-A of the NDPS Act. From the evidence of P.W.14, it can be safely inferred that,

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Section 52-A of the Act was never followed. P.W.14 in

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para-7 of his deposition has held as follows:

¶158

7. Thereafter the police started searching the vehicle From inside the vehicle, no incriminating materials or contraband were recovered From the dickey of the car, two plastic bags were recovered. On opening the first of the two plastic bags, it was noticed that 44 small packets wrapped with cello tape have been kept inside it and each of the packets was weighing 1 kg. Four to five packets out of those 44 packets were taken for weighment and the weight of each of the packet approximately came to be 1 kg. Thereafter all the 44 packets were unwrapped and the materials kept inside the said packets were unloaded on a Dari. The contents of all the 44 packets were thereafter put inside a plastic bag and thereafter it was weighed. The weighment of the said bulk ganja came to be 44 kgs. From the said bulk ganja, two samples weighing 25 grams each were brought out by the police which were marked as original sample 1 and duplicate sample 1. Thereafter the bulk ganja kept in the plastic bag was sealed in my presence by stitching it and by use of wax. Inside the said plastic bag after taking out the samples, 43 kgs and 950 grams of ganja were kept. This is my signature appearing over the cloth used for packing the bulk ganja in the plastic bag along with the endorsement "seizure and sealing made in my presence" marked as Ext. 11/3. The said cloth packet has already been marked as MO V. This is my signature appearing along with my designation seal over the sample named "duplicate sample 1" marked as Ext. 10/3. The said sample packet has already been marked as MO IV.

¶159

4.22. It is contended that the discrepancy with

¶160

regard to the statement of P.W.14 so made in para-7, is very much evident from his cross-examination in para-

¶161

Since it is a mandatory requirement that the

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Executive Magistrate has to issue a Certificate certifying the seizure and seal of the bulk contraband as well as the samples, but in view of the statement of P. Ws, it creates a serious doubt on the prosecution, with regard to the seizure and preparation of the samples with the seal. It is accordingly contended that since statutory provision contained under Section 52-A of the Act has not been followed, it cannot be held that prosecution has proved the involvement of the appellants, beyond all reasonable doubt. In support of his submission, reliance was placed to the decisions of the Hon’ble Apex Court reported in the case of Union of India Vs. Mohanlal, (2016) 3 SCC 379 and Yusuf Vs. State, (2024) 14 SCC 217.

¶165

4.23. Hon’ble Apex Court in the case of Mohanlal in para- 15 of the said judgment has held as follows:

¶166

15. It is manifest from Section 52-A(2)(c) (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

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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.

¶170

4.24. Hon’ble Apex Court in the case of Yusuf in para-11 to 16 of the said judgment has held as follows:

¶171

11. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

¶172

12. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52-A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52-A of the NDPS Act.

¶173

13. It is an admitted position on record that the samples from the seized substance were drawn

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by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.

¶177

14. In Mohanlal [Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864] case, the Supreme Court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

¶178

15. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.

¶179

16. Accordingly, we are of the opinion that the failure of the authorities concerned to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order [Yusuf v. State, 2022 SCC OnLine Mad 4810] of the High Court as well as the trial court

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convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs 1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.

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4.25. Learned counsel appearing for the appellants also made further submission contending inter alia that since there are discrepancies in the statement of the official witnesses, because of such discrepancy, evidence laid by the prosecution through the P.Ws. could not have been accepted by the learned Special Judge while holding the appellants guilty of the charges.

¶184

4.26. It is contended that P.W.7 in para-27 of his cross-examination since contended that he was going through the seizing and sealing procedure till 7 P.M on 12.11.2019, it clearly proves that he had not gone back from the spot to the Police Station, with lodging of the F.I.R at 7.15 P.M. Not only that P.W.7 in his crossexamination examination in para-27 though submitted that he was in the spot till about 7 P.M. on 12.11.2019, but P.W.16 who happens to be the driver of the Police vehicle in para-9 of his deposition submitted that they

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returned to the Police Station by 5 P.M on the date of occurrence. Not only that, even though P.W.19 in para7 of his deposition contended that P.W.7 returned to the Police Station at 7.15 P.M, but in the seizure memo so prepared under Ext.50, P.W.19 reflected the time of seizure at 6.40 P.M on 12.11.2019. It is accordingly contended that in view of such statement of P.W.7 vis-àvis P.W.16 and P.W.19, there is serious doubt as to at what time, the seized contraband along with the sample were brought to the Police Station.

¶188

4.27. It is also contended that P.W.7 in his deposition in para-6 though admitted that when he stopped the car on 12.11.2019, he found 2(two) persons sitting in the front seat and one person sitting in the back, but P.W.1 who had accompanied P.W.7 in the police vehicle, in para-5 submitted that he saw one person sitting on the front and 2(two) persons in the back side. Not only that, P.W.7 in para-6 of his deposition though contended that the offending vehicle with all the 3 (three) appellants were intercepted at Ruptala Chowk, however the car driver of the police

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vehicle bearing Regd. No. OD-05-E 6631 so exhibited

¶192

vide Ext.31, clearly shows that the vehicle had only gone up to Hockey Chowk and back to the Police Station. P.W.17, who is another Constable accompanying the seizure party, in his cross-examination in para-8 also contended that the distance between Hockey Chowk and Ruptala Chowk is around 500 metres. It is accordingly contended that there is also doubt as to whether the offending vehicle was intercepted at Ruptala Chowk.

¶193

4.28. It is also contended that even though P.W.7 in para-5 of his deposition submitted that he called 2(two) independent witnesses, while proceeding to the spot, prior to detention of the offending vehicle, but P.W.13 who happens to be another Constable accompanying the police vehicle in para-4 of his deposition contended that, P.W.19 requisitioned the Executive Magistrate and 2(two) independent witnesses to the spot.

¶194

4.29 . Even though P.W.14 in para-11 of his deposition made a statement that the contraband articles were weighed 4(four) times, but P.W.15, who is the weighman, in para-18 of his cross-examination,

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submitted that the contraband articles were weighed 2(two) times. Not only that, P.W.1 who is a member of the police party, in para-19 of his cross-examination submitted that the contraband were weighed 6(six) times. But such discrepancy in the statement of P.W.14, P.W.19 and P.W.1 was not taken into consideration by the learned Special Judge.

¶198

4.30. It is also contended that since conscious possession of the contraband, has not been proved conclusively against the appellant and no evidence having been laid that the appellants had any connection with the co-accused persons, benefit of doubt should go in favour of the appellants. In support of the aforesaid submission, reliance was placed to a decision of the Hon’ble Apex Court reported in Avtar Singh & Others

¶199

Vs. State of Punjab, (2002) 7 SCC 419. Hon’ble Apex Court in the said judgment in paragraph-6 has held as follows:

¶200

6. Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of clause (xiv) of Section

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2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking a cue from the decision of this Court in Inder Sain v. State of Punjab [(1973) 2 SCC 372: 1973 SCC (Cri) 813] arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW 4, the Head Constable, it is seen that Appellant 3 (Accused 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word “possession” no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants — one of whom was driving the vehicle and the other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from the evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if

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they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but the fact remains that in the course of examination under Section 313 CrPC, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under Section 54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But the other relevant aspects pointed out above were neither adverted to nor taken into account

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by the trial court and the High Court. Nonapplication of mind to the material factors has thus vitiated the judgment under appeal.

¶210

4.31. A further submission was also made that since during cross-examination of the appellants under Section 313 Cr.P.C, no specific question was put as to whether the contraband was seized from their conscious possession, in absence of any such questions being put to the appellants, which is a mandatory requirement, violation of the same entails benefit in favour of the accused persons. Reliance was placed to a decision of the Hon’ble Apex Court in the case of State of Punjab Vs. Hari Singh & Others, (2009) 4 SCC 200. Hon’ble Apex Court in the case of Hari Singh in paragraph-16 to 27 has held as follows:

¶211

16. In the present case, though, there was evidence regarding conscious possession, but, unfortunately, no question relating to possession, much less conscious possession was put to the accused under Section 313 CrPC. The questioning under Section 313 CrPC is not an empty formality.

¶212

17. “7. A few decisions of this Court need to be noticed in this context.

¶213

8. In Bibhuti Bhusan Das Gupta v. State of W.B. [AIR 1969 SC 381] this Court held that the pleader cannot represent the accused for the

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purpose of Section 342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘the old Code’) which is presently Section 313 CrPC. 9. Section 313 CrPC reads as follows:

¶217

‘313. Power to examine the accused. — (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court—

¶218

(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary.

¶219

(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

¶220

Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

¶221

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

¶222

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.’

¶223

10. ‘9. The forerunner of the said provision in the [old Code] was Section 342 therein. It was worded thus:

¶224

“342. Power to examine the accused.—(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against

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him, the court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

¶228

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

¶229

(3) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

¶230

(4) No oath shall be administered to the accused when he is examined under sub-section (1).”

¶231

10. Dealing with the position as the section remained in the original form under the old Code, a three-Judge Bench of this Court (Fazal Ali, Mahajan and Bose, JJ.) interpreted the section in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060: AIR 1953 SC 468] that: (AIR p. 470, para 8)

¶232

“8. … The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box. They have to be received in evidence and treated as evidence and be duly considered at the trial.”

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11. Parliament, thereafter, introduced Section 342-A in the old Code (which corresponds to Section 315 of the present Code) by which permission is given to an accused to offer himself to be examined as a witness if he so chose.

¶236

12. In Bibhuti Bhusan Das Gupta case [AIR 1969 SC 381] another three-Judge Bench … dealing with the combined operation of Sections 342 and 342-A of the old Code made the following observations: (AIR p. 384, para 7)

¶237

“7. … Under Section 342-A only the accused can give evidence in person and his pleader's evidence cannot be treated as his. The answer of the accused under Section 342 is intended to be a substitute for the evidence which he can give as a witness under Section 342-A. The privilege and the duty of answering questions under Section 342 cannot be delegated to a pleader. No doubt the form of the summons shows that the pleader may answer the charges against the accused, but in so answering the charges, he cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken. But at the close of the prosecution evidence the accused must be questioned, and his pleader cannot be examined in his place.”

¶238

13. The Law Commission in its Forty-first Report considered the aforesaid decisions and also various other points of view highlighted by legal men and then made the report after reaching the conclusion that:

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(i) in summons cases where the personal attendance of the accused has been dispensed with, either under Section 205 or under Section 540-A, the court should have a power to dispense with his examination; and

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(ii) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally. 14. The said recommendation has been followed up by Parliament and Section 313 of the Code, as is presently worded, is the result of it. It would appear prima facie that the court has discretion to dispense with the physical presence of an accused during such questioning only in summons cases and in all other cases it is incumbent on the court to question the accused personally after closing prosecution evidence. Nonetheless, the Law Commission was conscious that the rule may have to be relaxed eventually, particularly when there is improvement in literacy and legal aid facilities in the country. This thinking can be discerned from the following suggestion made by the Law Commission in the same report:

¶243

“24.45. Section 342 should be retained. —We have, after considering the various aspects of the matter as summarized above, come to the conclusion that Section 342 should not be deleted. In our opinion, the stage has not yet come for it being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.”

¶244

15. The position has to be considered in the present set up, particularly after the lapse of more than a quarter of a century through which period revolutionary changes in the technology of communication and transmission have taken place, thanks to the advent of computerization. There is marked improvement in the facilities for legal aid in the country during the preceding twenty-five years. Hence a fresh look can be made now. We are mindful of the fact that a two-

¶245

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Judge Bench in Usha K. Pillai [Usha K. Pillai v. Raj K. Srinivas, (1993) 3 SCC 208: 1993 SCC (Cri) 824] has found that the examination of an accused personally can be dispensed with only in summons case. Their Lordships were considering a case where the offence involved was Section 363 IPC. The two-Judge Bench held thus: (SCC pp. 212-13, para 4)

¶248

“4. … A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Since an offence under Section 363 IPC is punishable with imprisonment for a term exceeding two years it is a warrant case and not a summons case. Therefore, even in cases where the court has dispensed with the personal attendance of the accused under Section 205(1) or Section 317 of the Code, the court cannot dispense with the examination of the accused under clause (b) of Section 313 of the Code because such examination is mandatory.”

¶249

16. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033] as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein: (SCC p. 806, para 16) “16. … It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to

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explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.”

¶253

17. The above approach shows that some dilution of the rigour of the provision can be made even in the light of a contention raised by the accused that non-questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.

¶254

18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against

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him”. In Jai Dev v. State of Punjab [AIR 1963 SC 612] Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: (AIR p. 620, para 21)

¶258

“21. … The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity.”

¶259

19. Thus, it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

¶260

20. At the same time, it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim Audi alteram partem. The word “may” in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.

¶261

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21. But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape, but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation?

¶264

22. The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is “summons cases”. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a “summons case”. Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which

¶265

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are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can the court not extend a helping hand to an accused who is placed in a predicament deserving such a help? 23. Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed, the court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel for the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth. 24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word “shall” in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases e.g. if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time

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adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved?

¶271

25. If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning.

¶272

(a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers.

¶273

(c) An undertaking that he would not raise any grievance on that score at any stage of the case. 26. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions, he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of

¶274

Page 46 of 73

¶275

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¶276

precaution the court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for an answer). If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning. [The court has also to ensure that the imaginative response of the counsel is intended to be availed to be a substitute for taking statement of the accused.]

¶277

27. In our opinion, if the above course is adopted in exceptional exigency, it would not violate the legislative intent envisaged in Section 313 of the Code.’

¶278

The above position was indicated in Basavaraj R. Patil v. State of Karnataka [(2000) 8 SCC 740: 2001 SCC (Cri) 87] , SCC pp. 749-54, paras 9-27.

¶279

11. It is true that in Chandu Lal Chandraker case [Chandu Lal Chandraker v. Puran Mal, 1988 Supp SCC 570: 1988 SCC (Cri) 907] two Hon'ble Judges have taken a view supporting that of the appellant. It appears that in the said case no reference was made to Bibhuti Bhusan Das Gupta case [AIR 1969 SC 381].

¶280

12. Judged in the background of principles set out in Basavaraj R. Patil case [(2000) 8 SCC 740: 2001 SCC (Cri) 87] the inevitable conclusion is that the High Court's impugned order does not suffer from any infirmity to warrant interference.” [ Ed. : As observed in Keya Mukherjee v. Magma Leasing Ltd., (2008) 8 SCC 447, pp. 449-55, paras 7-12.]

¶281

18. When the accused was examined under Section 313 CrPC, the essence of accusation was not brought to his notice, more particularly, that possession aspect, as was observed by this Court in Avtar Singh v. State of Punjab [(2002) 7

¶282

Page 47 of 73

¶283

// 48 //

¶284

SCC 419: 2002 SCC (Cri) 1769]. The effect of such omission vitally affects the prosecution case.

¶285

4.32. Making all these submissions, learned counsel appearing for the appellants contended that since there is serious doubt with regard to seizure of the contraband from the conscious possession of the appellants, conduct of the investigation and discrepancy in the evidence of the P.Ws, on the face of such materials being available, learned Special Court should not have held the appellants guilty of the charges of the offence under Section 20(b( (ii) (C ) of the NDPS Act, r/w Section 29 of the said Act. It is accordingly contended that the appellants have been wrongly convicted and sentenced vide the impugned judgment dt.16.08.2021 and the same requires interference of this Court.

¶286

5. Mr. C.K. Pradhan learned Addl. Govt. Advocate on the other hand made his submission in support of the impugned judgment. It is contended that the plea raised by the appellants with regard to the brass seal having not been produced at the time of production of

¶287

the contraband with proper sealing of the bulk

¶288

Page 48 of 73

¶289

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¶290

contraband as well as the samples and because of such non-compliance, appellants are not to be held guilty of the charges, so raised by the appellants, has been properly dealt with by the learned Additional Sessions Judge in para-70, 71, 73 & 74 of the judgment.

¶291

5.1. It is contended that since such a plea raised by the accused persons has been dealt with by the learned Addl. Sessions Judge, the plea so taken by the appellants in the present appeals cannot be accepted. It is also contended that non-compliance of the statutory provision contained under Section 52-A of the Act has also been dealt with by the learned Special Judge in Paragraphs 64,65,70,71,73, & 74 of the judgment reads as follows:

¶292

64. PW 14 has also deposed that the after the bulk ganja were kept back in the plastic gunny bags, the same were sealed in his presence by stitching it and by use of wax. He further deposed that after the sealing was made, he had signed over the clothes used for packing the bulk ganja in the plastic bags and hand given an endorsement that seizure and sealing made in my presence. He also deposed that samples which were drawn before him were also sealed and packed before him. During his examination in the Court, the bulk ganja and samples packets were produced in the Court and he identified his signatures on the said bulk ganja packets and the samples packets. It was also noticed that the endorsement given by him also appeared therein. Therefore, the evidence of PW 14 fully corroborates the evidence of PW 7 with regard to packing and sealing of seized bulk ganja

¶293

Page 49 of 73

¶294

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¶295

and also the sample packets. In course of his crossexamination, it was elicited from him that he had not issued any certificate to PW 7 or the IO with regard to search, seizure and sealing on the date of occurrence. Admittedly, from the evidence on record, it can be said that no such certificate has been issued. But, it may humbly be noted here that, PW 14 has given endorsement over the bulk ganja packets, which were also produced in the Court, that seizure and sealing was done in his presence and thereafter has put his signatures. The seizure list marked as Ext. 15/1 by which the bulk ganja, sample packets and other articles were seized carries an endorsement given by PW 14 that seizure has been done in his presence and signatures. On perusal of the sample packets which were drawn by PW 7 and were produced before the Court as material objects, clearly mentions the place of drawal of samples, the quantity of sample that was drawn and the name of Signatures of the independent witnesses, PW 14 and PW 7 finds place over the sample packets. True it is that no separate certificate has been issued by PW 14, but he has given endorsement over the seized bulk ganja that the seizure and sealing done in his presence and the signed it. Similarly over the seizure list under Ext. 15/1 he has given endorsement in respect of seizure done in his presence. Lastly, the sample packets drawn at the spot and so also the bulk ganja packets states the quantity of ganja, the names of the witnesses and the place of seizure and drawal over the packets. Although no separate weighment chart has been prepared, but over the material objects containing bulk ganja and sample packets, the quantity of ganja has clearly been mentioned. Therefore, such non giving of separate certificate by PW 14 will not affect the case of the prosecution.

¶296

65. It has also been argued that presence of PW 14 at the spot is doubtful. In order to drive the said point to home, the learned defense counsel has pointed that while PW 15 the weighman has deposed that ganja was weighed twice, PW 14 has stated the ganja was weighed four times. Admittedly, there is a discrepancy in the evidence of both these witnesses regarding how many times, the ganja was weighed. But then, as noted above, PW 14 in his evidence has categorically deposed that he received an order from SDM, Panposh to proceed to the spot of the occurrence. The said written order of SDM, Panposh has been marked as Ext. 29. As noted above, on reading of the said letter it transpires that such order of deputing PW 14 to the spot was passed in response to the requisition of PW 19 requesting SDM, Panposh for deputation of an Executive Magistrate to the spot to witness search and seizure. The evidence of PW 14 is that he proceeded to the spot along with a police staff. PW 17 in his evidence has deposed that he had accompanied PW 14 to the Spot. In that regard,

¶297

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¶299

after returning to the office, he had reported the said fact in the reverse side of the command certificate that was issued to him in Ext. 33. Under Section 114(e) of the Evidence Act, the Court is to presume that the judicial and official acts have been performed regularly. The prosecution in order to raise such presumption has not only examined witnesses but also has proved certain documents which has never been challenged by the accused persons. The document by which PW 14 was directed to proceed to the spot is an official correspondence and the veracity of the said document or the contents of such document has never been challenged. Under such circumstances, it is difficult to accept the contention of the learned counsel for the accused persons that the presence of PW 14 at the spot at the time of search, seizure and sealing is doubtful.

¶300

xxx xxx xxx

¶301

70. It has been argued on behalf of the defense that the specimen of the brass seal impression was not produced before the SDJM for verification. Further, the evidence of PW 6 makes it doubtful that the brass seal which was used for sealing, actually was handed over to him on the date of occurrence. Further, there is no cogent evidence that, the seized contrabands were kept in safe custody after it was taken to police-station. It is the settled principle of law that prosecution is required to prove proper sealing of seized materials and completely eliminate chances of tampering with such article during retention by the investigating agency. The burden of proof of entire path of the journey of the articles from the point of seizure till its arrival before chemical examiner has to be proved by adducing cogent, reliable and unimpeachable evidence.

¶302

71. PW 7 has deposed to have prepared test memo at the spot in respect of the samples drawn in which he mentioned the total quantity recovered, quantity of sample drawn and had obtained the signatures of PW 6, PW 9 and PW 14 over it and the same also contains the impression of his brass seal. However, it was admitted by PW 7 that he has not prepared the same in duplicate and a copy of copy is available inside the sample packet. It has also been admitted by PW 7 that he has not taken specimen impression of the brass seal that was used in the instant case for sealing the contraband articles on a plain paper. Therefore, on/reading of the evidence of PW 7 it is apparent that while preparing test KELAKRO mos in respect of the samples drawn from both the bags he has put the seal impression over the same. As discussed above, from each of the bags two samples were drawn. While, the sample drawn from MO IV, has been marked as Original Sample I and Duplicate Sample 1, the sample drawn from MO II was marked as Original Sample 2 and

¶303

Page 51 of 73

¶304

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¶305

Duplicate Sample 2. It is the evidence of PW 7 and all other official witnesses that bulk ganja as well as the samples 2024 drawn were sealed. PW 7 has deposed that he used his own brass seal to seal the seized articles as well as the sample packets. PW 7 has also deposed that after using the brass seal he had handed over it to PW 6 on execution of a zimanama with a direction that he will produce the same as and when called upon by the Court. Such zimanama was marked as Ext. 16. PW 6 in course of trial, produced the brass seal before the Court and such brass seal was marked as MO-VII. The brass seal at the time when it was produced before the Court was kept inside a polythene packet. The said witness also deposed that he executed the zimanama marked as Ext. 16. However, in his cross-examination, it was deposed by him that he was handed over the brass seal on the date he came to depose evidence after receiving summons in the present case. Therefore, it appears that there is a discrepancy as to handing over the brass seal to PW 6 on the date of occurrence at the spot. On perusal of Ext. 16, it appears that the said document has been signed by PW 6. Further, in the contents of such Ext. 16, it has been stated that zimadar had received the brass seal from PW 7. It may be noted here that, the zimanama when was adduced as evidence in the Court, has never been objected. It is not the evidence of PW 6 that he had not executed the zimanama. It is also not in dispute that such PW 6 is a literate person and there is no evidence to show that he cannot read or understand English language. Infact PW 6 in his evidence has never disputed the contents of such Ext. 16. Nothing has been elicited from him that when he signed the zimanama, he did not know the contents of the said document. Rather, on perusal of Ext. 16, it is forthcoming that he had received the brass seal upon handed over by PW 7 and undertook to produce it before the Court. As noted above, PW 7 has categorically deposed that on 12.11.2019, at the spot he had executed the zimanama in favour of PW 6. This fact has also not been disputed by the accused persons. On the other hand, PW 6 in course of his cross-examination by the prosecution has deposed that on the date of occurrence, he had accompanied PW 7 and other police staffs to the spot where the vehicle has detained. When the crossexamination of PW 7 is seen, it is apparent that nothing has been elicited from him that the zimanama under Ext. 16 was not executed at the spot. His evidence in respect of the fact that he handed over the brass seal to PW 6 at the spot has not been challenged in any mariner. Except a suggestion that PW 6 was given the brass seal on the date when he came to Court for rendering his evidence, nothing else has been elicited from PW ? to show that the said brass seal was actually not handed over to such PW 6. Nothing has been elicited from PW 6, in course of crossexamination to show that he was coerced, threatened or

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¶308

pressurized to sign Ext. 16. Therefore, under such circumstances it is difficult to accept that PW 6 who is a literate person although executed the zimanama was not handed over the brass seal by PW 7. The evidence of PW 6 that he was handed over the brass seal on the date he came to give deposition in the Court is not believable in view of the oral evidence of PW 7 and the documentary evidence under Ext. 16 wherein it has been acknowledged by PW 6 that he had received the brass seal in zima.

¶309

xxx xxx xxx

¶310

73. PW 13 has deposed that on 13.11.2019, he forwarded all the accused persons arrested till that date to the Special Court. At the time of producing the accused persons before the Court, the two packets of bulk ganja, two envelopes containing sample ganja and a plastic bag containing the empty wrappers collected from 78 packets. The said fact has also ben entered in Station diary vide SDE No. 10 dated 13.11.2019. Such SDE entry was marked as Ext. 54 but with objection from the side of the defense. It may be noted here that, the objection raised in respect of manual station diary entries, have already been dealt with in previous paragraphs. It was further deposed that under Ext. 53 a prayer was made before the Court to draw samples from the seized ganja and forward the same for chemical examination. It is also the evidence of PW 19 that on the same day, his prayer for drawal of samples was allowed and he was directed to produced all the bulk ganja and sample packets before the Learned SDJM. Accordingly, he also produced the said seized articles before the Leamed SDJM, Panposh on 13.11.2019 itself. Upon production, the Learned SDJM, drew two samples from the bulk ganja packets each weighing 25 which were sealed by him. Thereafter the learned SDJM forwarded the samples collected by the informant and the samples drawn by him, to the chemical examiner by a forwarding letter marked as Ext. 56. It is also the evidence of PW 19 that, the bulk ganja in two packets, the two envelopes containing sample deposited in the Court Malkhana on 13.11.2019 vide CMR No. 33/2019 and such Mal Challan in CMR No. 33/2019 was marked as Ext. 58. PW 19 has also deposed that after the return of the escort party from the Court, they handed him over Ext. 58 and one sealed packet to be deposited at RFSL. It was then deposed that since it was night by that time, the said sealed exhibit was kept at Malkhana of the PS and to that effect SDE No. 16 dated 13.11.2019 was made. The sealed exhibit was kept after noting the said fact in Malkhana register vide U entry no. 164/19.

¶311

74 . On perusal of the Malkhana Register, it is apparent that no separate entry has been made while the bulk ganja and sample packets were taken out of the Malkhana

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on 13.11.2019 for producing before the Court. But then on perusal of Ext. 54, it is apparent that at 2:30 PM of 13.11.2015, the seized exhibits were brought out of the Malkhana and were handed over to the escort party. Therefore, although no separate entry in Malkhana register with regard to bringing out of seized exhibits have been made, but the said fact has been specifically noted in the station diary. Now on perusal of the order sheet of the present case, it is apparent that on 13.11.2019, the seized articles and the accused persons were produced before the Court on that day. Also the order sheet of the Court reveals that on the same day, the IO was directed to produce the seized exhibits before the Learned SDJM for drawl of samples. The order sheet of the Learned SDJM, Panposh in the part file which was opened pursuant to the order of the Special Court, reveals that 13.11.2019, before him on the same day, two sealed plastic bags were produced. It has been noted by the leamed Magistrate that seal of the plastic bags marked as Package No. 1 and Package No. 2 were broken in his presence and after opening each of the packet. The said samples drawn by him were sealed. It is also stated in the order sheet that after drawing of the samples, the two plastic bags were again sealed in his presence. It also appears that after the completion of the process of drawl of samples, the two plastic gunny bags carrying bulk ganja, samples Collected by the informant marked, as duplicate sample no. 1 and duplicate sample no. 2, two envelopes of the sample collected by the learned Magistrate, one sealed envelope containing broken seals and sealed packet containing white cloth was kept in the Court Malkhana in CMR No. 33/2019. Therefore, from the order sheet of this Court as well as that of the learned Magistrate it appears that on 13.11.2019, not only the seized articles were produced before the Special Court but was also produced before the SDJM. The learned SDJM has specifically noted that the sealed packets carrying bulk ganja was broken by him which means by the time it was produced before him it was in sealed condition. Therefore, the order sheet of the learned Magistrate is clear to the extent that he has not noticed any tampering and that by the time it was produced before him, the same were sealed condition. It is also forthcoming from the order sheet of the learned Magistrate that the seized bulk ganja, four envelopes containing samples drawn from the bulk ganja of which two was drawn by PW 7 and two by the learned Magistrate and the broken seals were deposited in the Court Malkhana on 13.11.2019 itself. It is also apparent that the other two packets of samples drawn by him and PW 7 were directed to be produced before the Chemical Examiner on 13.11.2019.

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5.2. Learned Addl. Govt. Advocate also contended that P.W.14 in para 8, 9 & 12 since has clearly proved the seizure of the bulk contraband as well as the preparation of the samples in his presence with due seal being put on the same, such deposition of the P.W.14 cannot be brushed aside. Statement of P.W.14 in Para

¶318

8, 9 & 12 reads as follows:

¶319

8. Thereafter the second bag was opened. From inside it, 34 packets were recovered. The entire contents of the 34 packets were unloaded on the Dari The said bulk materials were thereafter put inside a plastic bag and was weighed. On weighment, the weight of such bulk materials came to be 34 kgs. From the said bulk ganja, two samples weighing 25 grams each were brought out by the police which were marked as original sample 2 and duplicate sample 2. Thereafter the bulk ganja kept in the plastic bag was sealed in my presence by stitching it and by use of wax. Inside the said plastic bag after taking out the samples, 33 kgs and 950 grams of ganja were kept. This is my signature appearing over the cloth used for packing the bulk ganja in the plastic bag along with the endorsement "seizure and sealing made in my presence" marked as Ext. 8/3. The said cloth packet has already been marked as MO 1. This is my signature appearing along with my designation seal over the sample named "duplicate sample 1" marked as Ext 9/3. The said sample packet has already been marked as MO III. In both the packets, the independent witnesses had also signed in my presence.

¶320

9. The police thereafter seized the Indigo ECS car, the bulk ganja kept in both the packets, the envelopes containing duplicate sample 1 and 2. one envelope over which it was scribed secret drugs samples/test memo", the Dari that was used in the search and seizure process by preparing a seizure list in presence of me. This is the said seizure list

¶321

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already marked as Ext. 15/1 and this is my signature appearing therein marked as Ext.15/3. The said seizure was made at around 6.30 PM. In all the seizure lists over which I have put my signatures, the same were also signed by other independent witnesses.

¶324

12 . I cannot say if the Enquiry Officer had prepared any document for keeping the specimen impression of the brass seal used for the purpose of sealing the contraband articles. I have not issued atly certificate to the Enquiry Officer or the 10 after the completion of the search, seizure and sealing process on the date of the occurrence. It is a fact that in MO III and MO IV I have not given any endorsement regarding collection of the samples in presence of me.

¶325

5.3. It is further contended that since on the

¶326

alleged date of occurrence on 12.11.2019, when the offending vehicle OR-03-G-5622 was intercepted, the said vehicle was occupied by the present appellants

¶327

and the bulk Ganja so contained in two packets were seized in presence of the Executive Magistrate from the Dickey of the vehicle with due measurement by P.W.15

¶328

and preparation of the sample in the packet so prepared by the tailor-P.W.4, has been duly proved and the seized article having been proved to be Ganja, no illegality or irregularity can be found with the impugned judgment.

¶329

5.4. It is contended that since from the dickey of the vehicle, contraband weighing 78 kgs. was found

¶330

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¶332

and out of those two bags containing the bulk contraband, samples were drawn with due seal and signature of the Executive Magistrate-P.W.14, it cannot be held that the contraband was not seized from the possession of the appellant, as they were the occupiers in the offending vehicle. It is contended that since the contraband was seized from the vehicle, which was driven by the driver-appellant in CRLA No.475 of 2021 and by the 2 (two) other persons i.e. appellants in Criminal Appeal Nos.471 and 529 of 2021, it has to be held that the appellants were carrying the Ganja in the offending vehicle measuring 78 kgs. Since the contraband was seized from the vehicle, which was occupied by the appellants, it has to be held that the appellants were in conscious possession of the same. Mere discrepancy in the statement of P.Ws. cannot take away the well-reasoned order of the learned Special Judge and these discrepancies cannot be treated as contradictions. In support of his submission reliance was placed to the following decisions of the Apex Court.

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¶335

1. Goverdhan & Another Vs. State of Chhatisgarh, 2025 INSC 47 .

¶336

2. Kuriya and Another V. State of Rajasthan, (2012) 10 SCC 433.

¶337

3. Kalabhai Hamirbhai Kachhot Vs. State of

¶338

Gujarat, Criminal Appeal No.216 of 2015 .

¶339

5.5. Hon’ble Apex Court in the case of Goverdhan in

¶340

paragraphs-51, 52, 53 & 54 has held as follows:

¶341

51. As we proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the account of eye witnesses. In Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525 it was observed as follows:

¶342

“9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the

¶343

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¶345

decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105]. In para 10 of the Report, this Court observed: (SCC pp. 514-15) ‘10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read Page 30 of 63 as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.’ 10. In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] this Court observed : (SCC p. 656, para 24) ‘24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally

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¶348

nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. ’ This Court further observed : (SCC pp. 656-57, paras 25-27) ‘

¶349

It is a common practice in trial courts to make out contradictions from the previous statement of a witness for Page 31 of 63 confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:

¶350

“155.Impeaching credit of witness.—The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him— (1)-(2) ***

¶351

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;” 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be “contradicted” would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness the crossexaminer is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to “contradict” the witness.

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¶354

To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] ).’”

¶355

52. Further, this Court also cautioned about attaching too much importance on minor discrepancies of the evidence of the witnesses in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 as follows:

¶356

“5. … We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel Page 32 of 63 for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:

¶357

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

¶358

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

¶359

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

¶360

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

¶361

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it

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depends on the time-sense of individuals which varies from person to person.

¶365

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

¶366

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him—perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”

¶367

53. To the same effect it was also observed in Appabhai v. State of Gujarat (1988) Supp SCC 241 as follows:

¶368

“13. … The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do Page 33 of 63 not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State of M.P. [(1972) 3 SCC 751 :

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¶370

// 63 //

¶371

1972 SCC (Cri) 819] observed : [SCC p. 756, para 8 : SCC (Cri) p. 824, para 8]

¶372

‘8. … This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered….’” 54. We must also remember that the scene of the crime was in a rural area and the witness being rustic, their evidence has to be appreciated in the light of the behavioral pattern in the rural environment. In this regard, we may refer to the decision of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (supra) wherein it was held that: “ 8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony Page 34 of 63 provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage

¶373

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¶374

// 64 //

¶375

over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naiveté and clever equivocation, manipulated conformity and ingenious inveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the court of first instance. Nor can we make a fetish of the trial Judge's psychic insight.”

¶376

5.6. Hon’ble Apex Court in the case of Kuriya in para 29, 30 & 32 of the said judgment has held as

¶377

follows:

¶378

29. Improvements or variations in the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses.

¶379

30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses.

¶380

xxx xxx xxx

¶381

32 . It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of

¶382

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¶383

// 65 //

¶384

Haryana [(2010) 12 SCC 350 and Shivlal v. State of Chhattisgarh [(2011) 9 SCC 561

¶385

5.7. Hon’ble Apex Court in the case of Kalabhai

¶386

Hamirbhai Kachhot in para 19 of the said judgment

¶387

has held as follows:

¶388

“19. Further, in the case of Narayan Chetanram Chaudhary & Another Vs. State of Maharashtra, this Court has considered the effect of the minor contradictions in the depositions of witnesses while appreciating the evidence in criminal trial. In the aforesaid judgment, it I held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses.

¶389

5.8. It is also contended that after conclusion of the

¶390

trial, when the learned Special Judge found that 4(four) of the accused persons are not involved in the alleged offence, they were acquitted vide the impugned judgment. However, the seized contraband since were found in possession of the present appellants and there is no other presumption that the contraband was not seized from the offending vehicle, no illegality or irregularity can be found with the impugned order of conviction and sentence, so passed against the appellants vide the impugned judgment. It is also contended that more discrepancies in the statement of

¶391

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¶392

// 66 //

¶393

P.Ws being not contradiction, the impugned order of

¶394

conviction and sentence is not to be interfered with. In support of his submission, reliance was placed to the following decisions:

¶395

1. Edakkandi Dineshan @ P. Dineshan &

¶396

Others Vs. State of Kerala 2025 INSC 28

¶397

2. Shri Gopal and Another V. Subhash and

¶398

Others, (2004) 13 SCC 174

¶399

3. Kailash Vs. State of Maharashtra, 2025 SCC

¶400

Online SC 1977

¶401

5.9. Hon’ble Apex Court in the case of Edakkandi

¶402

Dineshan @ P. Dineshan in para-19 & 25 has held as

¶403

follows:

¶404

19. It is a settled position that ‘falsus in uno, falsus in omnibus’ (false in one thing, false in everything) that the above principle is foreign to our criminal law jurisprudence. This aspect has been considered by this Court in a plethora of judgements. In the case of Ram Vijay Singh vs State of UP4, a Three Judge bench of this Hon’ble Court had held that: “..(20) We do not find any merit in the arguments raised by the learned counsel for the Appellant. A part statement of a witness can be believed even though some part of the statement may not be relied upon by the Court. The maxim falsus in uno, falsus in omnibus is not the rile applied by the courts in India. This Court recently in a

¶405

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¶406

// 67 //

¶407

judgement IIangovan vs State of T.N. held that Indian Courts have always been reluctant to apply the principle 4 2021 SCC Online SC 142. 13 as it is only a rile of caution. It was held as under: (SCC Pg 536, Para 11)” “..(11) The Counsel for the Appellant lastly argued that once the witnesses had been disbelieved with respect to the co accused, their testimonies with respect to the present accused must also be discarded. The Counsel is, in effect, relying on the legal maxim “falsus in uno, falsus in omnibus”, which Indian Courts have always been reluctant to apply. A three Judge bench of this Court, as far back as in 1957, in Nisar Ali v. State of UP, held on this point as follows (AIR p 368, Para 9-10) “(9) This maxim has not received general acceptance in different jurisdictions in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of Caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. (10) The Doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of Evidence” (21) Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony if the said witness cannot be disregarded qua the present Appellant. Still, further it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality if evidence which is relevant in criminal trial and not the quantity.”

¶408

xxx xxx xxx 25. The principle of ‘falsus in uno, falsus in omnibus’ does not apply to the Indian criminal jurisprudence and only because there are some contradictions which in the opinion of this Court are not even that material, the entire story of the prosecution cannot be discarded as false. It is the duty of the Court to separate the grain from the chaff.

¶409

5.10. Hon’ble Apex Court in the case of Shri Gopal in

¶410

para-18 has held as follows:

¶411

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¶412

// 68 //

¶413

18. In Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] this Court held that in terms of Section 145 of the Indian Evidence Act, attention of witnesses can be drawn to such statements which would amount to contradiction. It was held: (AIR p. 1034, para 56) “56. The right of both the accused and the prosecution is limited to contradictions.” It was, thus, held that omission to make a statement in terms of Section 161 of the Code of Criminal Procedure would not attract the provisions of Section 145 of the Indian Evidence Act. However, by reason of amendment of the Code of Criminal Procedure explanation has been inserted to sub-section (2) of Section 162 which is in the following terms:

¶414

“An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”

¶415

5.11. Hon’ble Apex Court in the case of Kailas in para-

¶416

16, 20,27,28,30 & 31 has held as follows:

¶417

16. Before we proceed further, it would be useful to survey the judicial precedents as to in what circumstances a re-trial is to be directed and what are the consequences of such a direction. In Ukha Kolhe v. State of Maharashtra (supra), this Court observed that:

¶418

“An order for the re-trial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interest of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be

¶419

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¶420

// 69 //

¶421

countenanced when it is made merely to enable the prosecutor to lead evidence which he could, but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.”

¶422

xxx

¶423

xxx xxx

¶424

20. We are conscious of the law that while exercising appellate power the record must be perused⁸ and, therefore, if the High Court, as an appellate court, had difficulty in understanding the contents of the video, which was part of the record, it could have called for the presence of the accused as well as the witnesses or their respective lawyers to explain to the Court the significance of what appears in that video. Besides, the power to take additional evidence is there under Section 3 91 of CrP C. However, to merely understand the video, in our view, there is no justification to order a re-trial and fresh recording of evidence. For the reasons above, reason (a) supra assigned by the High Court for ordering a re-trial is totally misconceived and baseless.

¶425

xxx xxx xxx

¶426

7. In Baldev Singh v. State of Haryan a¹⁵ , a threeJudge Bench of this Court, following the decisions in Jitendra (supra), Vijay Jain (supra) Ashok (supra) and Noor Aga (supra), allowed the appeal of a convict on the ground that the seized contraband was not produced and there was no satisfactory evidence regarding proper custody of the contraband.

¶427

28. In Vijay Pandey v. State of U.P.¹⁶ , this Court laid emphasis on the existence of evidence to correlate the seized sample with the one that was tested. The relevant observations are reproduced below:

¶428

“8. The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be correlated.”

¶429

xxx xxx xxx

¶430

30. At this stage, we may refer to the provisions of Section 52- A¹⁸ of NDPS Act. This section, inter alia, enables preparation of inventory of seized contraband, drawing of samples therefrom, taking of photographs, etc., as well as its disposal. Sub-section (4) of Section 52-A is important. It provides that every court shall treat the inventory, the photographs of the contraband and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.

¶431

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¶432

// 70 //

¶433

31. In the light of the discussion above, in our view, mere non-production of the seized contraband during trial may not be fatal if there is reliable evidence in respect of its seizure, drawing of samples therefrom, and FSL report relating to the sample drawn from the seized material. However, to ensure that no adverse inference is drawn against the prosecution for nonproduction of the seized contraband, documents prepared in terms of the provisions of Section 52A, inter alia, evidencing preparation of inventory of seized contraband and drawing of samples therefrom, would have to be brought on record. Likewise, evidence should be there that the sample drawn from the inventory was sent to FSL in a sealed container/envelop, as per guidelines, and that the seal was found intact at the end of FSL. This is to obviate any doubt regarding sample being tampered in transit. Similarly, FSL's report along with the sample tested by it is to be placed on record so that there remains no doubt regarding the sample tested.

¶434

6. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that the prosecution in Raghunathpalli P.S. Case No.280 of 2019 was set into motion with Registration of the F.I.R on 12.11.2019 for the offence under Section 20(b) (ii) (C) of the NDPS Act and Section 120-B of the I.P.C. However, the present appellants along with 4(four) other accused persons faced the trial, after being charged for the offence under Section 20(b) (ii) (C)/29 of the NDPS Act.

¶435

6.1. The seized contraband was found in the dickey of

¶436

the offending vehicle OR-03-G-5622 and the two gunny

¶437

Page 70 of 73

¶438

// 71 //

¶439

bags on being measured, the same was weighed at 44 kg. and 34 kg. respectively, in total 78 kgs. After taking out the sample measuring 25 grams each to have the original sample and duplicate sample, the net weight of the bulk Ganja came to 43.950 and 33.950 kgs in both the bags.

¶440

6.2. The prosecution in order to prove its case,

¶441

examined as many as 19 witnesses and no witnesses has been examined by the defence.

¶442

While P.W.7 is the person who seized the

¶443

contraband on the alleged date of occurrence, P.W.14 is the Executive Magistrate in whose presence, the alleged search and seizure was made. P.W.19 is the I.O of the case. P.W.4 & P.W.15 are the tailor and weighman, who were called to the spot by P.W.7 for weighting of the contraband so seized and preparation of the samples, P.Ws.5, 10, 11, 12 & 17 are the police Constable attached to Raghunathpalli Police Station. P.Ws.1, 2, 3, 8 & 13 are the members of the raiding party, who accompanied P.W.7 to the spot. P.W.16 is

¶444

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¶445

// 72 //

¶446

the driver of the vehicle who carried the raiding team to

¶447

the spot on 12.11.2019.

¶448

6.3. This Court after going through the materials available on record and the deposition of the P.Ws though finds that there are certain discrepancies with regard to search and seizure of the contraband as well as its weighing and drawing of samples by using the brass seal in question, but all such discrepancies cannot be treated as contradiction. Placing reliance on the decisions in the case of Edakkandi , Shri Gopal and Kailash , this Court is of the view that since the contraband was seized from the offending vehicle and all the appellants were occupants in the vehicle, which is not disputed, the prosecution has proved the seizure of the contraband from the conscious possession of the appellants, beyond all reasonable doubt. Learned trial Court as found from the record has dealt with all the issues raised by the Appellants with regard to search and seizure as well as mis-match in the statement of the P.Ws. This Court finds no irregularity or illegality with regard to the appreciation made by the learned

¶449

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¶450

// 73 //

¶451

trial Court, while holding the appellants guilty of the charges.

¶452

6.4. In view of the aforesaid analysis, this Court is of the view that the appellants have been rightly convicted and sentenced for the offence under Section 20(b) (ii) (C) of the NDPS Act and Section 120-B of the IPC. This Court accordingly is not inclined to interfere with the impugned judgment dt.16.08.2021 so passed in Spl. G.R. Case No.6 of 2019 by the learned 1^st Addl. Sessions Judge, Rourkela and dismiss all the appeals.

¶453

7. The Appeals accordingly stand dismissed.

¶454

(Biraja Prasanna Satapathy) Judge

¶455

Orissa High Court, Cuttack Dated the 9^th January, 2026 /Sangita

¶456

Signature Not Verified

¶457

Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cut tack Date: 12-Jan-2026 14:05:21

¶458

Page 73 of 73

Pradeep Mohanty@Babaji Mohanty v. State of Odisha

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Pradeep Mohanty@Babaji Mohanty v. State of Odisha

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