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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.