S.K. Sahoo, J.@mdash1. The appellants Basanta Kumar Pradhan and Susanta Kumar Sahu faced trial in the Court of the learned Addl. Sessions Judge -cum- Judge, Special Court, Gajapati at Parlakhemundi in G.R. Case No. 114 of 2008 (T.R. 2/2008) for the offences punishable under section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ''the N.D.P.S. Act'') and sections 177 and 181 of the Motor Vehicles Act, 1988.
The learned Trial Court vide impugned judgment and order dated 06.11.2010 found both the appellants guilty under section 20 (b) (ii) (C) of the N.D.P.S. Act. The learned Trial Court held that the prosecution has failed to establish the charge under section 177 of the Motor Vehicles Act against both the appellants so also charge under section 181 of the Motor Vehicles Act against the appellant No. 1 Basanta Kumar Pradhan. However, the learned Trial Court held that the prosecution has proved the charge under section 181 of the Motor Vehicles Act against the appellant No. 2 Susanta Kumar Sahu.
Both the appellants were sentenced to undergo R.I. for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh), in default, to suffer R.I. for two years more for the offence under section 20 (b) (ii) (C) of the N.D.P.S. Act. The appellant No. 2 Susanta Kumar Sahu was sentenced to pay a fine of Rs. 500/- (rupees five hundred), in default, to suffer S.I. for one month for the offence under section 181 of the Motor Vehicles Act.
2. The prosecution case, as per the first information report lodged by Abhimanyu Parida (P.W.8), in-charge of Chandragiri outpost before the Inspector-in-charge of Mohana Police Station on 01.05.2008 is that on that day at about 5 p.m. while he along with constable Gouranga Chandra Pradhan (P.W.2) and home guard Radhakanta Baliarsingh (P.W.5) were performing motor vehicle checking near R.I. office on Mohana-Parlakhemundi road (S.H. 34), he found one Indica Car bearing registration No. OR-02-AP-6080 was coming from Dhadiamba side. At that time, he was checking another vehicle bearing registration No. OR-07-F-7181 which was been driven by Sibaram Mohapatra (P.W.6) of Chandragiri Patra Sahi. On verification of the Indica Car, P.W.8 found that apart from the driver, another person was sitting on the front seat of the car and on verification of the car in presence of the witnesses and staff, he found that seven numbers of gunny bags containing ganja were kept on the back side seat of the said car. On being asked, the driver of the Indica Car disclosed his identity as Basanta Kumar Pradhan (appellant No. 1) of village-Sorada, P.S.-Nuagaon, District-Nayagarh and the another person sitting on the front seat of the car disclosed his identity as Susanta Kumar Sahu (appellant No. 2) of village-Lunisara, P.S.-Nuagaon, District-Nayagarh.
On verification of the R.C. book, P.W.8 found that the said car stands in the name of wife of Hemanta Kumar Jena, plot No. 1324/2554, Khalakhia, Baidyanath Lane, Old Town, Bhubaneswar. The driver failed to produce his driving license. Neither the driver nor the occupant of the Indica Car could produce any authority for possession and transportation of ganja. Both the appellants disclosed to have procured the ganja from village Sinkudi padar to deliver it at Bhubaneswar.
It is the further prosecution case that P.W.8 took both the appellants as well as Indica Car with seven bags of ganja to Chandragiri outpost and asked the driver Sibaram Mohapara (P.W.6) of other vehicle to come to the police outpost. Then, he contacted the Inspector-in-charge over the V.H.F. and prepared the first information report (Ext. 6) in the outpost.
On receipt of the written report of P.W.8, Inspector in-charge of Mohana Police Station, Rama Chandra Thamba registered Mohana P.S. Case No. 42 dated 01.05.2008 under section 20 (b) (ii) (C) of the N.D.P.S. Act and sections 177 and 181 of the Motor Vehicles Act and directed P.W.10 Dandapani Behera who was the Sub-Inspector of Police attached to Mohana Police Station to take up investigation of the case. During investigation, P.W.10 asked P.W.8 to arrange two independent witnesses and accordingly, one Jyotiraj Sahu (P.W.4) and Sibaram Mahapatra (P.W.6) were arranged. P.W.10 gave his personal search to the appellants in presence of the witnesses and with a weighing machine which was available in the Chandragiri outpost, the ganja was weighed and the total weight of ganja from seven gunny bags came to 177 kgs. P.W.10 prepared the homogenous mixture of ganja available in each gunny bag in presence of the witnesses and accused persons and from each gunny bag, he collected two samples each of 25 grams and then he seized seven gunny bags of ganja, the entire lot of ganja, car bearing registration No. OR-02-AP-6080, original R.C. book of the vehicle, original Insurance Certificate of the vehicle in presence of the appellants and witnesses and prepared seizure list Ext. 3. P.W.10 examined the seizure witnesses and sealed the seven bags containing ganja by using his personal brass seal and gave the seal in the Zima of Jyotiraj Sahu (P.W.4) who executed a zimanama Ext. 4. P.W.10 visited the spot which is the Government Road situated in front of R.I. Office of Chandragiri and prepared a spot map Ext. 8. He returned back to Chandragiri outpost at about 10.30 p.m. in the night and examined the informant and other witnesses so also the appellants. At about 11.00 p.m. in the night, he arrested both the appellants and came to Mohana Police Station with all the seized articles and the appellants and reached at the Police Station at about 12.15 a.m. in the night. P.W.10 kept the gunny bags containing ganja and sample packets inside police station Malkhana and kept the seized car outside. He entered in the Malkhana register regarding keeping of these seized articles in the Malkhana and also made a station diary entry No. 19 dated 01.05.2008 regarding such keeping of the seized articles in the Malkhana. On 02.05.2008 P.W.10 carried the seized articles and also forwarded both the appellants to the Court of Additional Sessions Judge, Parlakhemundi.
On the prayer made by P.W.10, the Additional Sessions Judge directed the S.D.J.M., Parlakhemundi to send the exhibits to RSFL, Berhampur and accordingly samples were sent. P.W.10 intimated the entire incident by way of a detailed report to S.P., Gajapati. On 02.05.2008 the samples were sent to RSFL, Berhampur and on 03.05.2008 seven bags of ganja (bulk ganja) were deposited in the Court Malkhana. On 13.05.2008 P.W.10 seized the station diary entry Nos. 9, 10, 11, 12, 13 dated 01.05.2008 of Chandragiri outpost as well as command certificate of C/30 Gouranga Charan Pradhan and home guard Radhakanta Baliarsingh. On 13.05.2008 he examined the seizure witnesses and also seized Mohana Police Station S.D. Entry Nos. 14, 15, 17 and 19 dated 01.05.2008. On 14.05.2008 he received information from Nuagoan Police Station that the appellants had no previous criminal antecedents. On 26.07.2008 he received the chemical examination report and also the seven samples from R.S.F.L., Berhampur which were sent to the Court of learned S.D.J.M., Paralakhemundi through constable. After obtaining necessary permission from the Superintendent of Police, Gajapati, P.W.10 submitted charge sheet against both the appellants under section 20 (b) (ii) (C) of the N.D.P.S. Act read with section 34 of the Indian Penal Code and sections 177 and 181 of the Motor Vehicles Act on 28.08.2008.
3. During course of trial, in order to prove its case, the prosecution examined ten witnesses.
P.W.1 Ramesh Chandra Choudhury was the constable attached to Mohana Police Station and he stated about the seizure of ganja at Mohana Police Station and he proved the seizure of one command certificate and station diary entry book of Chandragiri out post under seizure list Ext. 1.
P.W.2 Gouranga Charan Pradhan was the constable attached to Chandragiri outpost under Mohana Police Station. He stated that during checking of different vehicles, seven ganja bags were recovered.
P.W.3 Santosh Kumar Dakua did not support the prosecution case.
P.W.4 Jyotiraj Sahu also did not support the prosecution case. He denied taking the brass seal in his zima.
P.W.5 Radhakanta Baliarsingh did not support the prosecution case.
P.W.6 Sibaram Mohapatra also did not support the prosecution case, for which he was declared hostile.
P.W.7 Hemanta Beherdalai did not support the prosecution case, for which he was declared hostile.
P.W.8 Abhimanyu Parida was the A.S.I. of Police attached to Chandragiri outpost who stated to have detained the offending vehicle wherein the appellants and seven gunny bags containing ganja were found. He is informant in this case.
P.W.9 Brundaban Behera was the constable posted at Mohana Police Station and he accompanied Dandapani Behera (P.W.10) to Chandragiri outpost and found that P.W.8 Abhimanyu Parida had confined two persons and also found seven numbers of jerry bags containing ganja. He also stated about drawing of sample of ganja by P.W.10.
P.W. 10 Dandapani Behera was the S.I. of Police attached to Mohana Police Station who is the Investigating Officer in this case.
The prosecution exhibited seventeen documents. Ext. 1 is the seizure list of command certificate as well as station diary entry book of Chandragiri outpost, Ext. 2 is the seizure list of station diary entry book of Mohana Police Station along with Malkhana register, Ext. 3 is the seizure list of gunny bags containing ganja, samples of ganja and Indica Car bearing Registration No. OR-02-AP-6080, original R.C. book standing in the name of Charulata Biswal, wife of Hemanta Kumar Biwal and original insurance certificate standing in the name of Charulata Biswal, Ext. 4 is the zimanama of the brass seal, Ext. 5 is the sheet of paper containing brass seal impressions, Ext. 6 is the First Information Report, Ext. 7 is the command certificate, Ext. 8 is the spot map, Ext. 9 is the attested copy of Malkhana register, Ext. 10 is the attested copy of station diary entry of Mohana Police Station, Ext. 11 is the xerox attested copy of the chemical examination report, Ext. 12 is the original Malkhana register with reference to Entry No. 14/2008, Ext. 13 is the original station diary entry Nos. 10, 12, 13, 14, 15, 16, 17, 18, 19, 24, 25, 26, 27 dated 02.05.2008 of Mohana Police Station, Ext. 14 is the attested Xerox copy of the letter written by P.W.10 to Superintendent of Police, Gajapati, Ext. 15 is the application for keeping the ganja bags in the Court Malkhana, Ext. 16 is the original registration certificate of the offending vehicle and Ext. 17 is the original Insurance certificate of the offending vehicle.
The prosecution proved number of material objects. M.O.I to M.O.VII are the seized sample packets of ganja, M.O. I/a to M.O. VII/a are the signatures of P.W.6 on M.O.I to M.O.VII, M.O.I/i to M.O.VII/i are the signatures of P.W.10 on M.O.I to M.O. VII, M.O. I/ii to M.O. VII/ii are the signatures of appellant No. 1 and M.O. I/iii to M.O. VII/iii are the signatures of appellant No. 2.
4. The defence plea of the appellants is one of denial and it is pleaded that no ganja was seized from their possession.
5. Mr. Samarendra Mohanty, learned counsel appearing for the appellants contended that the entire prosecution case is shrouded in mystery and everything has been stage managed to falsely implicate the appellants in the crime. He further stated that the relevant documents have not been proved in accordance with law and mandatory provisions of the N.D.P.S. Act have not been complied with. He further submitted that the independent witnesses have not supported the prosecution case relating to search and seizure and therefore the basis of the statements of the official witnesses, the learned Trial Court erred in convicting the appellants and therefore benefit of doubt should be extended in favour of the appellants.
Mr. Dillip Kumar Mishra, learned Addl. Government Advocate on the other hand contended that in view of the settled position of law that the evidence of the official witnesses if acceptable can from the basis of the conviction in a case of this nature and the fact that three of the official witnesses have stated about the seizure of the contraband articles from the possession of the appellants and on chemical examination the same was found be flowering and fruiting tops of cannabis plants commonly known as ganja and all necessary documents like Malkhana register and seizure lists have been duly proved, the learned Trial Court was justified in convicting the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act.
6. Coming to the findings of the learned Trial Court, it is observed by the said Court that in a case of this nature, compliance of section 50 of N.D.P.S. Act is not necessary which is applicable to personal search and not to the search of the vehicle and therefore no illegality has been committed by the Investigating Officer in not informing the appellants about their right to be searched in the presence of one Magistrate or Gazette Officer and in not making any requisition to obtain attendance any such officer or Magistrate. The learned Trial Court further held that in the delayed afternoon during a routine motor vehicle checking on the highway in a remote small town, the contraband articles were seized and it could not be expected that so many persons of the locality would be present there and they should be requested to be witness to the search and seizure. It is further held that the seized articles were produced before the Special Judge and as per the direction of such Court, the S.D.J.M. collected samples and the bulk ganja was kept the in Malkhana and therefore there was nothing to accept that section 43 of the N.D.P.S. Act was not complied with and the evidence of the official witnesses is to be discarded. The learned Trial Court also repelled the contention raised by the learned defence counsel that the original chemical examination report was not produced and only xerox attested copy of the report was exhibited and therefore the chemical examination report should not have been taken into consideration. The learned Trial Court further held that when the official witnesses have deposed in a clear and cogent term that they recovered 177 kgs. of Ganja in seven bags which were found kept in the rear seat of the car under the possession of both the appellants and when the evidence of the I.O. indicates that the seized articles in proper custody were produced in Court and the samples were sent by the Court to R.F.S.L., Berhampur which was found to be containing ganja, it can be said that the prosecution has proved its case beyond all reasonable doubt. The learned Trial Court further held that Ext. 14 which is in compliance of section 57 of the N.D.P.S. Act has been proved and there is no doubt in accepting such a document even though it is an attested true copy by which the informant (P.W.8) immediately informed the higher authorities such as the Inspector-in-Charge of Mohana Police Station. The learned Trial Court further held that the evidence of the I.O. is very clear that right from the beginning of keeping the sealed bulk ganja bags and samples in Mohana P.S. Malkhana till its production before the Special Judge, Parlakhemundi and the dispatch of the samples by the learned S.D.J.M., Parlakhemundi, the seal was intact and it was duly verified by the Court and there is no contrary evidence that the I.O. played mischief with the samples in the intervening.
7. Adverting to the contentions raised at the Bar, the entire case rests upon the acceptability of the evidence of three official witnesses i.e. P.W.8 Abhimanyu Parida, who is the informant in the case, P.W.9 Brundaban Behera, who is the Police Constable attached to Mohana Police Station and P.W.10 Dandapani Behera, who is the S.I. of Police attached to Mohana Police Station and investigating officer of the case.
Coming to the evidence of P.W.8, he has stated that on the date of occurrence i.e. on 01.05.2008 at about 5 p.m., while he along with a constable and homeguard were performing motor vehicle checking near R.I. Office on Mohana Paralakhemundi road (S.H.34), he found one Indica Car bearing Registration No. OR-02-AP-6080 coming from Dadiamba village side and at that time he was checking another vehicle bearing Registration No. OR-07-F-7181 and he stopped the Indica Car and found one person driving the car and another person sitting on the front seat and on search of the vehicle, seven numbers of gunny bags were found in the backside seat. He further stated that the appellants disclosed their names and addresses and when he asked the accused driver to produce the documents of the vehicle, he could not produce the same and the accused persons admitted that they were transporting those seven gunny bags of ganja without any authority which were collected from village Sinkudipadar and transporting to Bhubaneswar and thereafter he took the appellants as well as the Indica Car with seven bags of ganja to the outpost and then he prepared the report regarding Ext. 6.
Admittedly, no entries from the Chandragiri out post have been proved in this case and even though P.W.8 stated to have searched the offending vehicle and detected seven members of gunny bags, no document of such search is available on record.
P.W.9 who was the constable attached to Mohana Police Station and accompanied P.W.10 to Chandragiri outpost has stated that when they reached the outpost, the accused persons were found confined inside the lock up and seven bags of ganja were kept on the verandah of the police outpost. P.W.8 has not stated that he detained the appellants inside the lock up or took out the gunny bags containing ganja from the car and kept it on the verandah of the police outpost. There is also no document to that effect. In absence of any documentary evidence of the concerned outpost and in absence of any statement of P.W.8 to that effect, the statement of P.W.9 creates a doubt as to how the seven bags of ganja were found on the verandah of the police outpost and how the appellants were found inside the lock up. The appellants have taken a plea that though they were arrested and the car was seized but the ganja was not there in the car. Specific replies to that effect have given by the appellants to question No. 13 put by the learned Trial Court under section 313 Cr.P.C. statement.
P.W.8 is the only witness who has stated about the seizure of the gunny bags containing ganja from the car and also about the fact that the appellants were found inside the car in which the gunny bags were also there. The statement of P.W.9 creates a doubt about the entire episode of the prosecution case.
P.W.10 is the Investigating Officer who has stated that he gave personal search to the accused persons before conducting the search and seizure but no search list is available on record. He stated that the weight of the ganja was taken by a machine which was available in the outpost but no weighment chart has been proved in the case. P.W.10 further stated that he sealed the seven gunny bags containing ganja and 14 numbers of sample packets and gave the zima of the brass seal to Jyotiraj Sahoo (P.W.4) who executed zimanama. P.W.4 has not supported such aspect of the prosecution case. The seizure list of the ganja bags, samples, car, R.C. Book and Insurance Certificate which has been marked as Ext. 3 does not indicate that the gunny bags were there in the offending vehicle. In the column No. 2, the place of seizure has been mentioned to be in front of Chandragiri Police outpost from the exclusive possession of the appellants which is contrary to the evidence of P.W.9. P.W.10 has stated that he has not directed the zimadar of the brass seal to produce the same before the learned S.D.J.M., Parlakhemundi on 02.05.2008 when he produced the seized articles. In fact the specimen seal was not produced before the Court when the samples were produced for the purpose of sending the same to the Chemical Examiner.
In a case of this nature, where stringent punishment has been prescribed, it is the duty of the Court to see that the articles which were seized were the very articles those were produced in Court for sending them for chemical examination and for that purpose it should be proved by leading cogent, reliable and unimpeachable evidence that the articles after seizure were properly sealed and it was kept in safe custody till it was produced before the Court and dispatched for the chemical examination. To ensure safety, it is one of the requirements that the reliable person in whose favour the seal is given in zima should produce it before the concerned Court at the time of production of seized articles and the Court has to verify not only that the seal was intact but also the seal impression that was given in the seized articles matches with the seal which was produced by the reliable person in whose favour the brass seal was given. There is no such evidence available in the present case rather the order sheet dated 02.05.2008 of the learned Special Judge, Parlakhemundi before whom the seized articles were produced indicate that the specimen seal was not produced and the specimen impression seal was also not produced by the I.O.
8. Section 57 of the N.D.P.S. Act states that whenever any person makes any arrest or seizure under the Act, he shall, make a full report of all the particulars of such arrest of seizure to his immediate official superior officer within forty-eight hours next after such arrest and seizure.
In the present case, the prosecution has proved Ext. 14 which is stated to be the true copy of the report submitted by P.W.10 to the Superintendent of Police, Gajapati. Ext. 14 is a xerox copy with endorsement of Inspector of Police, D.C.R.B. as true copy which was marked with objection. The Inspector of Police who has signed it as a true copy has not been examined. Though DR No. 534 dated 02.05.2008 has been mentioned on the xerox copy, the diary entry has also not been proved in original. The Superintendent of Police, Gajapati has not been examined to prove that such a report was sent to him. The original report has not been produced from the office of Superintendent of Police. In such circumstances, I am of the view that basing on Ext. 14 which was marked with objection, it cannot be said that section 57 of the N.D.P.S. Act has been duly complied with.
Law is well settled that when there is total non-compliance of statutory provisions of the N.D.P.S. Act, that will per se amount to prejudice. Provisions have been provided to protect a suspect against false implication and fair investigation and trial. Sections 42 and 57 of the N.D.P.S. Act are the separate rights and protections available to an accused. They are neither interlinked nor interdependent so as to dispense compliance of one with compliance of another. These two provisions operate in different fields and at different stages.
In case of Gurbax Singh v. State of Haryana reported in , AIR 2001 SC 1002, it is held that the provision under section 57 of the N.D.P.S. Act is directory and violation of this provision would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore this provision and such failure will have a bearing on the appreciation of evidence regarding arrest of the accused or seizure of the article.
9. In the present case, the original chemical examination report has not been proved. A xerox copy of the chemical examination report has been proved. P.W.10 has stated that the original chemical report was directly sent to the Court of S.D.J.M., Parlakhemundi by R.F.S.L., Berhampur but such a document is not available in Court record. If the original chemical examination report was not available on record, then the prosecution should have led secondary evidence in accordance with law. Section 65(e) of the Evidence Act states that secondary evidence might be given of the existence, condition or contents of the documents when the original is a public document within the meaning of section 74 of the Evidence Act by producing the certified copy of that document but no other kind of secondary document, is admissible. Section 76 of the Evidence Act states as to who is to give the certified copies of the public documents and also states that written certificate to be furnished at the foot of such copy that it is a true copy of such document or part thereof and such certificate shall be dated and scribed by such officer with his name and his official title and shall also the sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called ''certified copies''. Section 77 of the Evidence Act states that such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. The xerox copy of the chemical examination report which has been marked in this case as Ext. 11 with objection contains no endorsement that it is the true copy of the original. The name of the officer who had endorsed it as true copy attested has not been reflected. The competent person from the R.F.S.L., Berhampur who could have proved such document has also not been examined. Therefore, such a report cannot be taken into consideration at all in spite of the provision under section 293 Cr.P.C. None of the official witnesses have stated that they tested the sample and from their departmental experience, it was found to be ganja.
In view of the aforesaid discussion, it is clear that the independent witnesses have not supported the prosecution case. Even the evidence of the official witnesses are found to be discrepant in nature. The search and seizure appears to be doubtful. The relevant documents have not been proved in accordance in law and there is also absence of cogent evidence that the sample which were produced before the Court have not been tampered with. In view of such discrepancies and lacunas in the prosecution case, I am of the view that the prosecution has failed to establish its case beyond all reasonable doubt against the appellants and accordingly the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act is hereby set aside.
So far as the conviction of the appellant Susanta Kumar Sahu under section 181 of the Motor Vehicle Act is concerned, it is to be taken note of that right from the beginning as mentioned in the F.I.R., it is the prosecution case that the appellant Basanta Kumar Pradhan was the driver of the vehicle and the appellant Susanta Kumar Sahu was sitting on the front seat. The learned Trial Court has committed illegality in convicting the appellant Susanta Kumar Sahu under section 181 of the Motor Vehicle Act for having no driving licence. Therefore, the conviction of the appellant Susanta Kumar Sahu under section 181 of the M.V. Act is also liable to be set aside.
10. In the result, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence of R.I. for ten years and fine of Rs. 1,00,000/-, in default, to undergo R.I. for two years more so also the conviction of the appellant Susanta Kumar Sahu under section 181 of M.V. Act and direction to pay fine of Rs. 500/-, in default, to undergo S.I. for one month is hereby set aside.
The appellants are in jail custody since 02.05.2008 in connection with the case and they have not been granted bail either by the Trial Court or by this Court during pendency of the appeal. The appellants shall be released forthwith, if their detention is not otherwise required in any other case.
Lower Court records along with a copy of this judgment be sent down to the learned Trial Court for necessary action.
Accordingly, the Criminal Appeal is allowed.
