S. K. Sahoo, J
1. The appellants Sumit Kumar Behera and Babu Gouda faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur
in 2(a) C.C. No. 02 of 2011 (N) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereafter ‘N.D.P.S. Act’) on the accusation that on 18.02.2011 at about 07.00 a.m. they were found in possession of three quintals of
contraband ganja in front of Iswari Dhaba at Podamari under Pattapur police station in the district of Ganjam carrying it in an Ambassador Car
bearing registration number OR-02-AE-0200 in contravention of the provision under section 8(c) of the said Act.
The learned trial Court vide impugned judgment and order dated 23.08.2013 found the appellants guilty of the offence charged and sentenced each of
them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) each, in default, to undergo
further rigorous imprisonment for period of two years each.
2. The prosecution case, in short, is that on 17.02.2011 at about 8.00 p.m. Sarat Chandra Bhanja (P.W.4), S.I. of Excise, E.I. and E.B., Unit-II (S.D.),
Berhampur received reliable information about illegal transportation of ganja in between Digapahandi and Luhagudi State Highway. He entered the
fact in the information register and gave a letter to the Inspector in Charge, E.I. and E.B., Berhampur who directed him to detect the case. On
18.02.2011 at about 4.30 a.m. P.W.4 along with his staff proceeded to Podamari and in front of Iswari Dhaba, they found one Ambassador Car
bearing registration number OR-02-AE-0200 was coming towards Digapahandi. When they detained the car, the appellant Babu Gouda was found in
the driver’s seat and appellant Sumit Kumar Behera was also found in the car. Jerry bags were found loaded on the rear seat of the car. When
the appellants were asked about the contents of the jerry bags, they remained silent. P.W.4 asked the appellants to give option if they would like to be
searched in presence of Executive Magistrate or Gazetted Officer but they opted to be searched by P.W.4. P.W.4 called independent witnesses to
the spot and in their presence, the car was searched and ten numbers of jerry bags emanating smell of ganja were recovered from inside the car.
P.W.4 conducted preliminary tests such as burning of a little piece of the contents of the bags and taking smell of the same. By his service experience,
P.W.4 was confirmed that the jerry bags were containing ganja. The weight of the bags was taken which was found to be three quintals. Since the
appellants did not produce any authority to transport ganja, the car along with its starting key, the jerry bags containing ganja were seized under seizure
list Ext.1. P.W.4 sealed the seized bags by using papers and affixing impression of his brass seal. He gave his brass seal to P.W.2 Kalu Charan Jena
on zima, recorded the statements of the appellants and witnesses. He gave a copy of the seizure list to each of the appellants by obtaining zimanama,
prepared the spot map. The appellants were arrested and produced before the learned Special Court and as per the direction of the learned Special
Court, the seized ganja bags were produced before the learned S.D.J.M., Berhampur and in his presence, the samples were collected. P.W.4 sent the
sample packets for chemical analysis through Constable Bhagaban Mahanandia. During course of investigation, P.W.4 issued a letter to the R.T.O.,
Bhubaneswar for supply of details of the seized car. The R.T.O. issued a letter enclosing xerox copy of the R.C. book that the owner of the vehicle
was one Usarani Das. The owner was found dead and her husband submitted an affidavit with a copy of the death certificate of his wife. He
received the chemical examination report and on completion of investigation, P.W.4 submitted the prosecution report against the appellants.
3. The learned trial Court framed charge under section 20(b)(ii)(C) of the N.D.P.S. Act on 02.09.2011 and the appellants refuted the charge and
pleaded not guilty and claimed to be tried.
4. The defence plea of the appellants was one of denial.
5. In order to prove its case, the prosecution examined four witnesses.
P.W.1 Susanta Gouda who was working as Watchman at Forest Check-gate, Podamari stated that he has no knowledge about any incident and
excise staff seized some bags.
P.W.2 Kalu Charan Sahu stated that on 18.02.2011 the excise staff seized ten bags of contraband ganja in front of P.W.D. I.B., Podamari and
prepared seizure list in which he put his signature.
P.W.3 Bhagaban Mahanandia was working as Excise Constable attached to E.I. & E.B., Berhampur and he stated about seizure of ten bags of
contraband ganja from inside the car on 18.02.2011, weighment of the contraband ganja, preparation of the seizure list and arrest of the appellants. He
also proved the spot map (Ext.2) and written consent obtained from the appellants vide Exts. 3 & 4.
P.W.4 Sarat Chandra Bhanja was working as S.I. of Excise, who not only received the reliable information regarding transportation of ganja in a car
but also proceeded to the spot with his staff, seized the jerry bags containing contraband ganja from inside the car, took weighment of the contraband
ganja and prepared the seizure list as well as other documents. He arrested the appellants, produced them in Court, made prayer for sending the
sample collected in Court for chemical examination, seized various documents and after completion of investigation, he submitted prosecution report
against the appellants.
The prosecution exhibited eleven documents. Ext.1 is the seizure list, Ext.2 is the spot map, Exts.3 and 4 are the written consent of the appellants,
Ext.5 is the information letter, Ext.6 is the forwarding letter of S.D.J.M., Berhampur for chemical examination, Ext.7 is the letter of the Investigating
Officer to the R.T.O., Bhubaneswar, Khurda for supply of particulars of the ownership of the Ambassador car, Ext.8 is the reply given by the R.T.O.,
Ext.9 is the xerox copy of death certificate of the owner of the offending vehicle, Ext.10 is the affidavit of Prasanna Kumar Dash, the husband of the
deceased owner of the offending vehicle and Ext.11 is the chemical examination report.
The prosecution also proved ten material objects.
M.Os. I to X are the sealed jerry bags containing residue ganja. No witness was examined on behalf of the defence.
6. The learned trial Court after analysing the evidence on record came to hold that non-dispatch of a copy of the page of the register containing the
entry relating to the reliable information received or an extract of the same in the factual scenario of the case cannot be viewed favouring non-
compliance of provisions of section 42(2) of the N.D.P.S. Act. The learned trial Court was of the considered opinion that there has been substantial
compliance of section 42(2) of the Act. It was further held that the discrepancy in the evidence of P.W.3 and P.W.4 with regard to the manner of
coming of the vehicle is too trivial and such discrepancy is also not unnatural to occur and that itself is not a ground to entertain doubt with regard to
search so as to upset the foundation of the prosecution case. The learned trial Court found the evidence of P.Ws.3 and 4 to be quite consistent and
free from any doubtful features and held that P.W.1’s non-supporting the prosecution case in relation to search, recovery and seizure has
absolutely got no significance. It was further held that P.W.3 and P.W.4 during trial specifically identified appellant Babu Gouda as the driver of the
car and the other appellant as the passenger and that the prosecution evidence that three hundred kilograms of ganja were recovered from the car
which was in occupation of the appellants is wholly acceptable and that the prosecution case regarding search, recovery and seizure of ganja from the
conscious possession of the appellants stood established beyond reasonable doubt.
7. Mr. Soura Ch. Mohapatra, learned counsel appearing for the appellants strenuously contended that there is no fair investigation as the Excise Sub-
Inspector (P.W.4) conducting search and seizure has himself carried out the entire investigation and submitted the prosecution report. He placed
reliance in the case of Mohan Lal -Vrs.- State of Punjab reported in A.I.R. 2018 S.C. 3853 to show that if an informant police official in a criminal
prosecution is himself asked to investigate the case, serious doubts would naturally arise with regard to his fairness and impartiality and obligation of
proof beyond reasonable doubt would take within its ambit fair investigation, in absence of which there can be no fair trial. It is further contended that
Exts.3 and 4 have been created subsequently which reflects unfairness in the investigation. The evidence of two independent seizure witnesses i.e.
P.Ws.1 and 2 are not in consonance with the seizure list (Ext.1) and even they have not stated about the presence of the appellants at the time of
preparation of seizure list and those two witnesses have not been declared hostile by the prosecution and therefore, their evidence is binding on the
prosecution and cannot be sidelined. He placed reliance in the case of Raja Ram -Vrs.- State of Rajasthan reported in (2005) 5 Supreme Court Cases
272. It is further submitted that even though P.W.3 and P.W.4, the two official witnesses arrived at the spot at the same time, their evidence relating
to the position of car is completely different. P.W.3 stated that the Ambassador Car bearing Regd. no.OR-02-0200 was found parking near a road
side Dhaba whereas P.W.4 stated that the Ambassador Car bearing Regd. No.OR-02-AE-0200 was found coming towards Digapahandi and they
detained the vehicle. Mr. Mohapatra, learned counsel highlighted that P.W.3 has not stated that the two persons who were sitting inside the car were
the appellants and he has not even stated that ten bags containing ganja were found inside that car. It is contended that when the car owner was not
examined, it is doubtful as to how the offending car came into the possession of the appellants. It is argued that in the seizure list (Ext.1) as well as in
the prosecution report, it is not mentioned that ten bags containing ganja were found on the rear seat of the car. The learned counsel further argued
that though P.W.3 and P.W.4 have stated that the brass seal was handed over to P.W.2 but the evidence of P.W.2 is totally silent in that respect and
even the brass seal was not produced in Court either when the seized contraband articles were produced for collection of sample and its dispatch for
the chemical examination or during trial. It is further contended that after production of the contraband articles in Special Court, there is nothing to
show regarding its production before the Magistrate for drawal of sample and there is also nothing on record to show as to how the samples were
dispatched for chemical analysis. He argued that mandatory provision under section 42(2) of the N.D.P.S. Act has not been complied with and the
copy of the information taken down in writing by P.W.4 has not been sent to the immediate official superior within stipulated hours, which has vitiated
the search and seizure. According to him, proving Ext.5 as it is, is not the sufficient compliance of section 42(2) of the N.D.P.S. Act and the material
witnesses regarding receipt of the intimation letter (Ext.5) by the I.I.C., E.I. & E.B., Berhampur have neither been examined nor material documents
relating to the receipt of such letter by the concerned I.I.C. have been proved during trial and everything has been subsequently stage managed to
show the compliance of section 42(2) of the N.D.P.S. Act. It is argued that since punishment prescribed under the N.D.P.S. Act are very stringent in
nature, it was required on the part of the prosecution to prove that the mandatory provisions under section 42(2) of the N.D.P.S. Act are being duly
complied with and in the case in hand, the prosecution has failed to bring clinching materials on record on several important aspects relating to search
and seizure and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants.
Mr. Purna Chandra Das, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that since the vehicle
was detained and search and seizure was made in a public place, therefore, section 43 of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is
applicable in the case. He further contended that both the appellants were found in the offending car when it was detained and the appellant no.2 was
in the driver’s seat and commercial quantity of contraband ganja in ten jerry bags were found in it and therefore, the learned trial Court is justified
in convicting the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act.
Contention relating to unfair investigation
8. It is not in dispute that P.W.4 Sarat Ch. Bhanja, S.I. of Excise conducted search and seizure on 18.02.2011 and he also conducted investigation and
submitted the prosecution report on 28.03.2011. The investigation of a case under N.D.P.S. Act is required to be carried out by a person who is
absolutely impartial, unbiased and unmotivated.
In the case of Mohan Lal (supra), it is held as follows:-
 “11. A fair trial to an accused, a constitutional guarantee Under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case
were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will
lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The
obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is
unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also.
Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.
xx                        xx                        xx
                        xx                         xx
14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation
on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused
and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a
reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not
necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the
investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation
would therefore be a foregone conclusion.â€
In case of State by Inspector of Police -Vrs.- Rajangam reported in (2010) 15 Supreme Court Cases 369, it is held as follows:-
8. The short question which falls for consideration of this Court is: whether P.W.6 who registered the crime could have investigated the case or an independent
officer ought to have investigated the case?
9. The learned Counsel appearing for the accused submitted that the controversy involved in this case is no longer res integra. In Megha Singh -Vrs.-
State of Haryana : 1995 Criminal Law Journal 3988, this Court has taken a categorical view that the officer who arrested the accused should not have
proceeded with the investigation of the case. The relevant paragraph reads as under:
“4....We have also noted another disturbing feature in this case. P.W.3, Sri Chand, Head Constable arrested the accused and on search being conducted by him, a
pistol and the cartridges were recovered from the accused. It was on his complaint, a formal first information report was lodged and the case was initiated. He being
complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on
with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any
occasion to suspect fair and impartial investigation.â€
10. The ratio of Megha case has been followed by other cases. In another case in Balasundaran -Vrs.-. State: (1999) 113 ELT 785 (Mad), the
Madras High Court took the same view. The relevant portion reads as under:
“16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating
officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with P.Ws. 3 and 4 at the time of search. In fact, P.W.5
alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W.5 alone had filed the charge sheet. But there is no material
to show that he had examined any other witness. It therefore follows that P.W.5 was the person who really investigated the case. P.W.5 was the person who had
searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any
other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated.â€
11. In this view of the legal position, as crystallized in Megha Singh's case (supra), the High Court was justified in acquitting the accused.
In case of Bata Khrushna Sahu -Vrs.- State of Orissa reported in (2010) 45 Orissa Criminal Reports 606 wherein it has been held that P.W.8 who
was the person who conducted the search and allegedly recovered gunny bags M.Os. I, II and III and therefore, the investigation of the case by
P.W.8 himself renders the charge against the petitioner vulnerable.
In case of Panchanan Das -Vrs.- State of Orissa reported in (2016) 65 Orissa Criminal Reports 702, it is held that where stringent punishment has
been prescribed, ordinarily if a police officer is the informant in a case, in the fairness of things, the investigation should be conducted by some other
empowered police officer or at least the investigation should be supervised by some other Senior police officer as the informant police officer is likely
be interested in the result of the case projected by him. However, if the informant police officer in the exigencies of the situation conducts
investigation and submits final form, it cannot be per se illegal. The defence has to prove in what way such investigation is impartial, unfair, biased or
has caused prejudice to the accused.
In the case in hand, the search and seizure took place on 18.02.2011 and the prosecution report along with connected papers were filed in the Court of
learned Sessions Judge â€"cum- Special Judge, Berhampur on 28.03.2011. When P.W.4 received the reliable information, searched the vehicle and
seized the contraband articles, in all fairness of things, he should not have investigated the matter without any exigencies of the situation. P.W.4 has
not stated anything as to what were the exigencies of the situation on his part to conduct investigation and to submit the prosecution report. There is
nothing on record as to why any other competent officer was not assigned the investigation of the case. It is the duty of the prosecution to bring on
record by adducing cogent evidence regarding the exigencies of the situation which compelled an officer conducting search and seizure of contraband
articles to carry forward with the investigation and to submit the prosecution report or charge sheet. In absence of such evidence, serious doubts
would arise with regard to the fairness and impartiality in the investigation.
Coming to the contentions raised by the learned counsel for the appellants that Exts.3 and 4 have been created subsequently which reflects unfairness
in the investigation, it appears that both these documents relate to compliance made on the spot as per the provisions of section 50 of the N.D.P.S.
Act. There is no dispute that since it is a case of search of a car from where the jerry bags containing contraband ganja were recovered, section 50 of
the N.D.P.S. Act would not be applicable which relates to a case of a search of a person. (Ref:- State of Punjab -Vrs.- Baldev Singh: 1999 Criminal
Law Journal 3672; Kalema Tumba -Vrs.- State of Maharashtra and another: (1999) 8 SCC 257; Gurbax Singh -Vrs.- State of Haryana: (2001) 3 SCC
28; Madan Lal -Vrs.- State of H.P: (2003) 7 SCC 465; Birakishore Kar -Vrs.- State of Orissa: (2000) 9 SCC 541; and Saikou Jabbi -Vrs.- State of
Maharashtra: (2004) 2 SCC 186). P.W.4 stated that when he asked the appellants to give option if they would like to be searched in presence of
Executive Magistrate or Gazetted Officer, they opted to be searched by him. Ext.3 and Ext.4 are two computer printed formats where blank spaces
are provided for inserting the names and addresses of the accused persons, which have been filled up by P.W.4. However, in those formats, it is
already being printed that the accused was given the option of search in terms of section 50 of the N.D.P.S. Act but he opted to be searched by
P.W.4. It is too difficult to believe that P.W.4 could prophesize that the accused persons might not be interested to be searched by any other Gazetted
Officer or a Magistrate rather they would opt to be searched by him and that is how he carried the computer forms printed in that way to the spot.
Such documents apparently have been prepared afterwards in the office but those have been anti-timed to show compliance of section 50 of the
N.D.P.S. Act. The manner in which Exts.3 and 4 have been prepared, which were not necessary, reflects unfair investigation by P.W.4. Therefore,
since the investigation conducted by P.W.4 was not fair and judicious, adverse inference is to be drawn against the prosecution.
Evidence of independent witnesses vis-à -vis official witnesses
9. Two independent witnesses have been examined in the case and they are P.W.1 and P.W.2. Both the witnesses have not stated anything against
the appellants. P.W.1 has stated that the spot is about 1 km. away from Iswari Dhaba and the spot was P.W.D. Bunglow Chowk of Podamari. He
further stated that the bags were kept in front of P.W.D. I.B., which were seized and carried to Berhampur. P.W.2 has also stated that ten bags of
contraband ganja were seized in front of P.W.D. I.B., Podamari. None of these witnesses have stated anything regarding the seizure of ten jerry bags
containing contraband ganja from a car in front of Iswari Dhaba. They have not been declared hostile by the prosecution. If a witness resiles from his
earlier statement given either to police or before the Magistrate, the Public Prosecutor can declare him as a hostile witness and with the permission of
the Court, can put any questions to him which might be put in the cross-examination by the defence counsel in view of section 154 of the Evidence
Act. If the Public Prosecutor fails to do so, the defence can take advantage from such unchallenged testimony to strengthen the defence plea. Of
course, the Public Prosecutor can advance his argument that even though a particular prosecution witness has not been declared hostile but his
evidence is not otherwise trustworthy and should be discarded and then it is for the Court to decide the acceptability of such argument. In case of
Raja Ram (supra), it has been held that when P.W.8 has not been declared hostile by the Public Prosecutor for reasons only known to him, the
evidence of P.W.8 is binding on the prosecution and such testimony cannot be sidelined. Basing on the ratio laid down in the aforesaid Supreme Court
judgment, I am of the humble view that the evidence of P.W.1 and P.W.2 cannot be totally sidelined and their evidence creates doubt with regard to
the prosecution case that the contraband ganja was seized in front of Iswari Dhaba from a car and the appellants were found in the car.
P.W.3, the Excise Constable stated that the Ambassador car was found parking near a road side Dhaba when he along with P.W.4 reached there.
P.W.4, on the other hand, stated that the Ambassador car was coming from Digapahandi side and they detained the vehicle in front of Iswari Dhaba.
It cannot be lost sight of the fact that both P.W.3 and P.W.4 proceeded together to the spot and reached at one point of time. P.W.3 stated that two
persons were found sitting inside the car but he has not stated that the appellants were those two persons. Even if it is held that the Public Prosecutor
inadvertently could not bring such things on record through P.W.3, but P.W.3 is silent in his chief-examination as to wherefrom the ten jerry bags
containing contraband ganja were found and seized? P.W.3 has stated that no contraband ganja was found in the dickey of the car. He has stated the
car registration number to be OR-02-0200 whereas P.W.4 stated that the registration number of the car was OR-02-AE-0200. P.W.4 stated that
samples were collected from the seized ganja bags before the learned S.D.J.M., Berhampur whereas from the cross-examination of P.W.3, it appears
that at the spot, from each bag sample of 50 grams was drawn which were sealed with the seal of P.W.4. Even though P.W.3 and P.W.4 stated that
the brass seal was handed over to P.W.2 but P.W.2 is totally silent in that respect. The zimanama of the brass seal in favour of P.W.2 has not been
proved by the prosecution. The brass seal was also not produced before the Court by P.W.2 for verification when the seized jerry bags containing
contraband ganja were produced in Court for drawal of samples for chemical examination. It is the requirement of law that when the contraband
articles are seized and sealed with the seal impression then the brass seal has to be left in the zima of a reliable person under zimanama and instruction
is to be given to such person to produce it before the Court for verification at the time of production of articles. The brass seal was also not produced
at the time of trial.
The order sheet dated 18.02.2011 of the learned Special Judge, Berhampur indicates that when the appellants were produced before him on that day
and the Investigating Officer prayed to draw samples to send the same for chemical analysis, the learned Special Judge directed the learned S.D.J.M.,
Berhampur for drawing samples from the seized ganja. There is no order sheet to show that the seized jerry bags containing ganja were placed before
the learned S.D.J.M., Berhampur where samples were drawn. The forwarding letter of the learned S.D.J.M., Berhampur dated 18.02.2011 indicates
that the seized properties were produced before him with a prayer to draw samples and to send it for necessary chemical analysis. There is nothing to
show that the learned S.D.J.M., Berhampur verified the seized jerry bags to be under proper seal at the time of its production and that he broke open
the seals of each jerry bags and collected samples separately. Therefore, it is doubtful as to whether the jerry bags after its seizure at the spot were
properly sealed.
Non-compliance of Section 42 of the N.D.P.S. Act
10. Adverting to the contentions raised by the learned counsel for the appellants regarding non-compliance of the provision under section 42(2) of the
N.D.P.S. Act, let me analyse the oral as well as documentary evidence adduced by the prosecution in that respect.
P.W.4 has stated that on 17.02.2011 at 8.00 p.m. he received information from reliable source about illegal transportation of ganja in between
Digapahandi and Luhagudi State Highway and accordingly, he entered the fact in the information register and gave a letter to the Inspector-in-charge,
E.I. & E.B., Berhampur, who directed him to detect the case. P.W.4 proved the said information letter as Ext.5, his signature thereon as Ext.5/1 and
the endorsement of I.I.C., E.I. & E.B., Berhampur as Ext.5/2.
The information letter (Ext.5) reads as follows:-
To,
The Inspector in Charge,
E.I. & E.B., Unit-II (SD), Berhampur
Sub:Â Intimation regarding detection of N.D.P.S.case.
Ref: Section 42(2) of N.D.P.S. Act.
Sir,
On dated 17.02.2011 at about 8.00 p.m., I got information from reliable sources that illegal transportation of Ganja (Cannabis) is going on through 4 wheeler in between
Digapahandi to Luhagudi State Highway. Then I entered the details of information in the information Register i.e. C-1.
I would therefore request you that necessary instruction may kindly be passed to move for the enforcement purpose.
Yours faithfully,
Sd/-Illegible
17.02.2011
(Sarat Chandra Bhanja)
S.I. of Excise, E.I. & E.B.
Unit-II, Berhampur
(Received the intimation letter from Sri S. Ch. Bhanja, S.I. of Excise, E.I. & E.B., Berhampur. Directed to detect the case successfully.)
Sd/-Illegible
17.02.2011
I.I.C., E.I. & E.B.
Berhampur
Under section 42(1) of the N.D.P.S. Act, if the empowered officer receives reliable information from any person relating to commission of an offence
under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed
place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes
about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering
and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to sub-
section (1) of section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search
during that period would afford opportunity for the concealment of evidence or facility for the escape of an offender. Section 42(2) of the N.D.P.S.
Act states that when an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto,
he shall send a copy thereof to his immediate official superior within seventy-two hours.
In case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827 while discussing regarding the
compliance of section 42 of the N.D.P.S. Act in case of a vehicle which was seized at the public place carrying contraband articles, it was held that
since the jeep cannot be said to be a public conveyance within the meaning of Explanation to section 43 of the N.D.P.S. Act, hence, section 43 was
clearly not attracted and provisions of section 42(1) proviso were required to be complied with and it was further held that the aforesaid statutory
mandatory provisions having not complied with, the High Court did not commit any error in setting aside the conviction.
The present is not a case where P.W.4 suddenly carried out search in the vehicle at a public place rather according to P.W.4, the reliable information
was received on the previous day in the evening hours. He has stated in the cross-examination that on 17.02.2011 at 08.00 p.m. he received
information while he was in his office and he mentioned the details of information received and the ground of his satisfaction in the information register
(C-1). He admits that his case diary does not reveal that he sent the extract of C-1 register to his Senior Officer. The intimation letter (Ext.5)
according to him, did not bear any letter number though it was entered in the dispatch register. P.W.4 himself has come up with a case of compliance
of section 42 of the N.D.P.S. Act but from his evidence, it is clear that he has not sent the copy of the details of reliable information received and the
ground of his satisfaction which was mentioned in the information register (C-1) to the I.I.C., E.I. & E.B., Berhampur. What P.W.4 has intimated to
the I.I.C. vide Ext.5 was only receipt of reliable information regarding illegal transportation of ganja and entering the same in the information Register
C-1. Even if the intimation letter was received by the I.I.C., E.I. & E.B., Berhampur who is the immediate official superior of P.W.4 on the very day
but according to my humble view, this would not be sufficient compliance of section 42(2) of the N.D.P.S. Act. P.W.4 was required to send the copy
of the details of reliable information received and the ground of his satisfaction which was mentioned by him in the information register (C-1) to the
I.I.C., E.I. & E.B., Berhampur. The salutary provision has a very useful purpose. Not only the superior official is required to be aware about the
receipt of the reliable information by the concerned officer and his grounds of belief beforehand but also by sending such documents to the superior
official, it would check any kind of tampering by the concerned officer with the nature of information received and reduced to writing. It would also
safeguard the interest of an accused against false implication.
The Hon’ble Supreme Court while discussing the provision under section 42 of the N.D.P.S. Act in case of State of Punjab -Vrs.- Balbir Singh
reported in (1994) 7 Orissa Criminal Reports (SC) 283 has been pleased to hold that the object of N.D.P.S. Act is to make stringent provisions for
control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse
of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it
obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the
benefit while carrying out arrest or search as provided under the proviso to section 42(1). To that extent they are mandatory. Consequently the failure
to comply with these requirements thus affects the prosecution case and therefore, vitiates of the trial. The decision rendered in the case of Balbir
Singh (supra) was further considered by a five-Judge Bench in the case of Karnail Singh -Vrs.- State of Haryana reported in (2009) 44 Orissa
Criminal Reports (SC) 183 wherein it was held in the concluding paragraph as follows:-
“17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the requirements of section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in sub-section (1) of section 42 from any person had to record it in writing in the concerned
Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by
mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d)
of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to
the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of
the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure.
The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the
delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed,
not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be
treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the
police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a
clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then
also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided
in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.â€
Ext.5 does not reveal as to the type of four wheeler and its registration number in which the illegal transportation of ganja was stated to be going on
and when it is likely to arrive at the spot where it was detected. The information that was received at 08.00 p.m. while P.W.4 was at the Excise office
was to the effect that the illegal transportation was in between Digapahandi and Luhagudi State Highway and he proceeded towards Podamari with
his staff at 4.30 a.m. i.e. about eight and half hours after the receipt of reliable information. As per the Google map, the distance between Digapahandi
and Luhagudi State Highway is only 30.1 kms. and Podamari comes in between the two. If that was the distance factor, it is not understood as to how
even after receipt of the information at 08.00 p.m., P.W.4 left to the spot after so many hours and in spite of that he was successful in getting the
offending vehicle. In absence of any previous information regarding the type of four wheeler and its registration number and the time of arrival at the
particular place, it must have been daunting task in detecting the vehicle. The evidence of P.W.3 and P.W.4 regarding detecting the offending vehicle
easily creates doubt about the prosecution case from its beginning.
According to the prosecution case, the owner of the vehicle namely Usharani Das was dead and her husband submitted an affidavit with a copy of the
death certificate of his wife. The husband of the registered owner has not been examined during trial. There is no evidence as to how the offending
vehicle came to the possession of the appellants. Neither any driving licence nor any other personal belongings of the appellants were found in the
vehicle. When P.W.4 issued letter to R.T.O. to supply particulars of the seized car, the R.T.O. gave a letter enclosing the xerox copy of R.C. book
which has been marked as Ext.8/1 which shows that it is a ‘non-transport vehicle’. Thus the offending vehicle was not coming within ‘public
conveyance’. Therefore, in view of the ratio laid down in case of Jag Raj Singh @ Hansa (supra), the statutory mandatory provisions of section
42 of the N.D.P.S. Act are required to be complied with.
In view of the mandatory provisions of section 42 of the N.D.P.S. Act, the Court is required not only to verify that the reliable information was taken
down in writing but also the grounds of belief was also recorded as per the second proviso to section 42(1) of the N.D.P.S. Act and copy of the same
was sent to the immediate official superior in view of sub-section (2) of section 42 of the N.D.P.S. Act.
In a case of this nature where the prosecution is required to prove the compliance of the mandatory provision under section 42 of the N.D.P.S. Act,
all the relevant documents which are connected with such compliance are to be proved before the trial Court in accordance with law and similarly all
the concerned witnesses should be examined in Court to prove the vital aspect. In absence of proof of the oral as well as documentary evidence
relating to compliance of such provision, the prosecution case should be viewed with suspicion.
11. In view of the forgoing discussions, I am of the humble view that there is non-compliance of mandatory provision of section 42(2) of the N.D.P.S.
Act. When P.W.4 being the officer conducting search and seizure has also investigated the case and submitted the prosecution report and the
investigation is not fair and justified, the brass seal was not produced in Court at the time of production of the seized articles, the independent persons
examined by the prosecution who have not been declared hostile give a complete different picture regarding detection of contraband ganja, it cannot
be said that the prosecution has successfully established the charge under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants beyond all
reasonable doubt.
Therefore, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed
thereunder is not sustainable in the eye of law.
Accordingly, the Criminal Appeal is allowed. The appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The
appellants who are in jail custody shall be set at liberty forthwith if their detention is not required in any other case.
Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.
...…………………………
