Full Judgment Text
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CASE NO.:
Appeal (crl.) 181-182 of 1999
PETITIONER:
State of Orissa
RESPONDENT:
Rajendra Tripathy and Ors.
DATE OF JUDGMENT: 06/05/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
The respondents faced trial for alleged commission
of offences punishable under Sections 18 and 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(in short the ’Act’) for alleged illegal possession of
heroin. The trial court found the respondents guilty
and sentenced each to undergo rigorous imprisonment for
10 years and to pay a fine of Rs. 1,00,000/- each and
in default to undergo rigorous imprisonment for two
years. By the impugned judgment the High Court set
aside the conviction and consequential sentence holding
that the accusations have not been established.
The prosecution version in a nutshell is as
follows:
On 6.8.1992 the then Sub-Inspector of Excise of
Cuttack Sadar was patrolling with his staff at Balikuda
and Kazipatna area under Cuttack Sadar Police Station.
While patrolling he found accused Deba Prasad Barik who
was proceeding towards Balikuda and Gopalpur near the
other side of the Level crossing of Balikuda railway
station. His movement was found to be suspicious. So
the S.I. of Excise (P.W.5) along with his staff
proceeded in a vehicle and detained him. P.W.5 in
presence of the witnesses who were available at the
spot, disclosed his identity and his intention to
search accused Deba as he was suspected to have
contraband articles in his possession. Thereafter
P.W.5 gave option to him as to whether he wanted to go
to a Magistrate or a Gazetted Officer for taking his
personal search or he had no objection to be searched
by him (P.W.5). As the accused Deba had no objection to
be searched by P.W. 5, his personal search was taken in
presence of the witnesses after observing all requisite
formalities. During search, one polythin white coloured
jari packet containing some powder was recovered from
his right side pant pocket. P.W. 5 suspected the powder
to be heroin. So he took 10 ml. of powder from the
seized article and tested the same by means of Drug
Testing kit which was carried with him. From the
initial test as the colour of the powder turned to rose
and thereafter violet and after doing some other
chemical tests and from his service experience, he
suspected the powder to be heroin. As possession of
heroin powder was unlawful, the jari packet (M.O.I.)
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was seized in presence of witnesses. Thereafter it was
kept in an envelop with identification mark as ’A’.
The envelop was sealed in presence of the witnesses by
the personal seal of P.W.5 and by paper seal bearing
the signature of the witnesses as well as of the
accused. The same was seized under a seizure list in
the presence of the witnesses also. A copy of the
seizure list was handed over to accused Deba, who was
arrested.
During interrogation of accused Deba, he disclosed
the names of other accused Sitaram Tripathy of Balikuda
to have supplied heroin to him. So P.W.5 immediately
proceeded with accused Deba towards the village
Balikuda in search of accused Sitaram Tripathy along
with his staff. They reached near the rented house of
accused Rajendra Tripathy who is the son of accused
Sitaram Tripathy on the road close to the house. At
the sight of the Excise staff, accused Rajendra started
running towards his house, but he was chased and was
apprehended in front of his house where the other
accused Sitaram was also standing. The witnesses who
had attested the search, seizure for accused Deba also
came there. P.W.5 again disclosed his identity and
intention to both accused Rajendra and Sitaram that
they are suspected to be possessing contraband articles
and asked them whether they wanted to be searched
before a Gazetted Officer or a Magistrate or they had
no objection if their personal search is taken by P.W.5
himself. Both accused Rajendra and Sitaram did not
choose to go to the Magistrate or Gazetted Officer and
consented for their personal search by P.W.5.
Thereafter P.W.5 in presence of the witnesses, after
observing all formalities of search, took the personal
search of both accused Sitaram and Rajendra. During
search one jari packet containing some powder was
recovered from the right side pant pocket of accused
Rajendra which he was wearing. On weighment it came to
5 grams. P.W.5 marked the said jari packet with
identification mark as ’B’. Thereafter during personal
search of accused Sitaram similarly one jari packet
containing some powder was recovered from his right
side pant pocket and after weighment it was found to be
11 grams. The said packets was marked with the
identification marks as ’C’. P.W. 5 conducted similar
tests which was conducted earlier in case of accused
Deba, by taking 10 ml. from each packets and after
tests he was confirmed that the contents of the jari
packets i.e. powder was heroin. Both the jari packets
were seized in presence of the witnesses and seizure
list was prepared and the packets were seized by means
of brass and paper seal. The house of the accused
Sitaram was also searched and only one Balance scale
was recovered and no contraband articles were found in
the house. The Balance scale was also seized and
thereafter both the accused persons Sitaram and
Rajendra were arrested and forwarded to Court on
7.8.1992 along with other accused Deba. On that day a
prayer was made to the Court for sending the seized
articles for chemical analysis. As the Court was hard
pressed for time and holidays intervened, the Court
directed P.W.5 to preserve the seized articles in safe
custody and he (P.W.5) as per the direction of his
superior officer kept the same in safe custody in his
office and thereafter by the order of the Court, it was
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sent for chemical analysis and it was subsequently
confirmed that the contents of the jari packets were
heroin. The accused persons were prosecuted for having
committed an offence punishable under Section 21 of the
Act for unlawful possession of heroin.
The accused Sitaram took the plea that because he
was an Inspector of Police and had taken objection to
the unlawful dealing of illicit distilled liquor in the
area under the control of main official witness, the
investigating officer of the case i.e. P.W.5, he was
falsely implicated. He was forcefully dragged from the
house, put in a vehicle and when his son, accused
Rajendra who is a college student protested, he was also
forcibly taken to the vehicle. The other accused Deba
took the plea that he had gone to the level crossing
side to attend call of nature and while he was returning
he was detained by P.W. 5 who wanted him to be a witness
in the case against other two persons. Since he refused
he was falsely implicated. To substantiate the
accusations, six witnesses were examined by the
prosecution in support of its case. P.W. 1 was the
Assistant Sub-Inspector of Excise who was accompanied
with P.W.5 who was the detaining officer. The accused
persons examined three witnesses to substantiate their
plea of innocence. The trial court found the evidence of
P.Ws. 1 and 5 to be credible and held that the plea of
accused persons regarding non-compliance of the
provisions of Sections 41, 42 and 50 of the Act were
without substance. It was held that there was
compliance of the requirements in law. In appeal, the
High Court observed that the alleged non-compliance of
Sections 41,42 and 50 were really of no consequence, as
the accused persons were entitled to acquittal because
of two factors; firstly, there was correction in the
search memo regarding the name of the persons from whose
custody the contraband articles were found and secondly
regarding the custody of these articles after seizure.
Initially the name of one Kasinath Tripathy was written
which was subsequently corrected to be Sitaram Tripathy.
Further, though the seizure was purportedly made on
7.8.1992, till 10.8.1992 the samples of contraband
articles had not been collected. It was not established
that the articles were in safe custody during the
intervening period. The order sheet of the concerned
Court does not show that the seized articles were
actually produced. With the aforesaid observation the
conviction and consequential sentence was set aside as
noted above.
In support of the appeal, learned counsel for the
appellant-State submitted that after having found that
the alleged contravention of provisions contained in
Sections 42 and 50 were really of no consequence and in
view of categorical finding that there was no
contravention the High Court should not have interfered
with the relevant conviction on untenable grounds.
P.W.5 had clearly indicated as to why the name of
Sitaram was required to be substituted in place of
Kasinath Tripathy as was originally written. Further
the evidence on record clearly shows that the contraband
articles were produced before the Court alongwith the
remand application. Forwarding report clearly indicates
that the seized articles were produced along with
accused persons. P.W. 5 had also categorically stated
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that the articles were kept in the safe custody in the
control room. The samples were drawn according to the
directions of the concerned magistrate. That being so
the conclusions of the High Court are clearly
unsustainable.
In response learned counsel for the respondent Nos.
1 and 2 submitted that the High Court has analysed the
factual position and found that the documents were
manipulated and there was no proper explanation
regarding the custody of the articles between 7.8.1992
till 10.8.1992. That being so, the conclusions of the
High court cannot be faulted.
There was no appearance on behalf of the respondent
No. 3 though he was represented by counsel in this
Court.
It has to be noticed that before the trial Court
and the High Court the stand was taken by the accused
persons alleging non-compliance of Sections 42 and 50 of
the Act. The same was given up by the respondents in
this appeal and in our view rightly. Considering the
time when search and seizure was done, and the
undisputed position that the detection was made while
the officers were on patrolling duty, Section 42 has no
application. Additionally the evidence of PWs. 1 & 5
clearly shows that the accused persons were given the
liberty to be searched in the presence of the prescribed
officer and they did not choose to be searched by any
person other than P.W.5. Therefore the plea related to
non-compliance of Section 50 as raised during trial and
before the High Court in addition to the concession,
plea regarding non-applicability of Sections 42 and 50
of the Act is also without any substance. The residual
question is regarding custody of the contraband articles
and corrections in seizure memo. The evidence on record
clearly shows that the forwarding report clearly
indicated that the articles were being produced before
the Magistrate. The order sheet of the Magistrate shows
that because he was busy he directed that the articles
should be produced on 10.8.1992 for the purpose of
collecting samples.
Relevant portion of the order reads as follows:
"It is seen that the Investigating
officer prays in his forwarding report to
draw the sample and to send the same for
chemical examination. No time today.
However, put up on 10.8.1992 for the purpose.
The Investigating Officer is directed to come
ready for drawing of the sample and for
sending the same to F.S.L., Bhubaneswar, for
chemical examination."
The High Court seems to have proceeded on the basis
that there is nothing in the order to show that the
articles were really produced. The conclusion appears
to have been arrived at without proper reading the
order. In the order itself it has been clearly
mentioned that in the forwarding report the
investigating officer had requested to draw the sample
for the same being sent for chemical examination. The
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Court nowhere records that the articles were not
produced and therefore samples could not be drawn. On
the other hand due to paucity of time, the Court itself
adjourned the matter and directed the case was to be
taken up on 10.8.1992 for the purpose of drawing
samples. The evidence of P.W.5 also shows that the
articles were kept in the safe custody in the office of
the Excise Department under lock and key till 10.8.1992.
There was even no suggestion given to P.W.5 that the
articles were not kept in safe or proper custody. That
being so, the decision of the High Court doubting the
safe custody is clearly unsustainable. In almost
similar factual backdrop, this Court had held the High
Court’s view to be untenable. (See State of Orissa v.
Kanduri Sahoo (2004 (1) SCC 337).
The other factor which has weighed with the High
Court is that there was correction of name in the
seizure memo. P.Ws. 1 & 5 have clarified this aspect.
It has been categorically stated that initially the name
given by accused no. 3 was Kasinath Tripathy. But on
persistent questioning, it was subsequently stated that
the real name was Sitaram Tripathy. That being so, the
necessity for the correction has been clearly explained.
The trial court accepted this explanation. But the High
Court without any justifiable reason disbelieved the
explanation offered by the witnesses regarding
correction of name.
The factors which have weighed with the High Court
for directing acquittal do not have any supportable
basis. Inevitable conclusion is that the prosecution has
established the accusation against the respondents, and
the trial court had rightly convicted them. The High
Court’s judgment reversing the conviction is
indefensible.
The appeals are allowed. The judgment of the High
Court is set aside and that of the lower Court is
restored. The bail bonds of the respondents-accused
persons shall stand cancelled and they are directed to
surrender to custody forthwith to serve remainder of
sentences as imposed by the trial court.