TaxTMI 
TaxTMI 
2018 (3) TMI 866
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....Substances Act, 1985 (hereafter 'the N.D.P.S. Act') and sections 482/34 of the Indian Penal Code on the accusation that on 06.09.2009 at about 4.00 p.m. at Patrapur bus stand, they were found transporting 595 kgs. 500 grams of contraband ganja in 66 polythene packets through three four wheeler vehicles in contravention of the provisions of section 8(c) of the N.D.P.S. Act and they abetted the commission of offence and were party to criminal conspiracy and used fake number plates in furtherance of their common intention. The learned trial Court vide impugned judgment and order dated 09.01.2012 acquitted all the appellants of the charge under sections 482/34 of the Indian Penal Code and also the appellants namely, Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda of the charge under section 29 of the N.D.P.S. Act and also the appellant Firoz Alli Khan @ Bulu of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. However the appellants namely, Ramakrushna Sahu, Trilochan Sahu, Subash Mahapatra @ Subash Ch. Mahapatra and Kailash Chandra Panda were found guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and each of them was s....
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....ut 3.30 p.m. while the patrolling party members were present at Samuntiapalli Chhak, they found one TATA SUMO, one INDICA Car and one SANTRO Car was coming from B. Nuagaon side in a high speed. Signal was given to stop the vehicles but the drivers of the vehicles did not oblige and drove away towards Patrapur. The patrolling party chased the cars in P.S. Jeep as well as in motor cycles and could be able to detain the vehicles at Patrapur Bus stand. First they guarded the vehicles and it was found that the TATA SUMO, INDICA Car and SANTRO car were bearing Regd. No.OR-05-J-6633, OR-02-Z- 4005 and AP-30-A-7789 respectively. While detaining the vehicles, two persons fled away from the vehicles. Meanwhile Sri Debabrata Sahoo (P.W.11), Tahasildar, Chikiti -cum- Executive Magistrate reached at Patrapur Bazar. They found two persons present inside INDICA Car, two persons inside SANTRO Car and one person inside TATA SUMO vehicle. All the three vehicles were loaded with blue & orange coloured polythene packets. After detaining the vehicles, the patrolling party members along with the Executive Magistrate, Chikiti and witnesses gave their identities and explained the accused persons regarding....
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....da, Bhubaneswar, Cuttack and Puri towns under the leadership of Bulu Khan and Kapila Sahu. They further disclosed that on that day, Bulu Khan (appellant in CRLA No.259 of 2012) was piloting them in one INDICA Car bearing Regn. No. OR-02-X-7803 & transporting ganja from one place to another. Kapil Sahu was driving detained SANTRO Car and Fakir of Nayagarh was driving the detained TATA SUMO and both of them fled away leaving the vehicles. Meanwhile, A.S.I. of police N.C. Pati came with one K Tripati Kumar Patro, S/o-K. Koti Patro of Main road, Patrapur who was dealing in rice business and he came with his electronic weighing machine. P.W.14 brought out twenty four packets from the INDICA Car through the labourers and his staff and opened it in presence of the witnesses and Executive Magistrate, Chikiti and it was found that all those packets were containing ganja. He made homogeneous blending of all ganja and K. Tripati Kumar Patro weighed the ganja and the total ganja came to 186 Kg. 400 grams (One hundred eighty six Kg. and four hundred grams). He prepared two samples of 250 gms each from all the blending ganja and packed the ganja in eight bags and marked the bags as Exts. A to H....
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....nd SANTRO car bearing Regn. Nos. OR-05-J-6633, OR-02- Z-4005 and AP-30-A-7789 respectively and fake number plates in presence of the witnesses, appellants and Executive Magistrate, Chikiti at 9.30 p.m. under proper seizure list. He gave the copy of seizure list to the appellants. The entire process was photographed and video graphed. As the accused persons namely Suchi @ Suchit Sahu, Trilochan Sahu, Subash Mohapatra, Rama Krushna Sahu and Kailash Ch. Panda were in exclusive and conscious possession of contraband ganja and dealing with it illegally, they were arrested by P.W.14 after observing all the formalities of arrest on 06.09.2009 at 10.30 p.m. after explaining them the ground of arrest. P.W.14 verified the engine number and chassis number of the seized vehicles and those were found to have been tampered with. 3. P.W.14 drew up a plain paper first information report at the spot and sent it to Jarada police station for registration. The appellants and the seized properties were brought to the police station and the seized properties were kept inside the police station malkhana after entering the same in the property register vide Mal Item No.51/2009 and in that respect station....
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..... On 28.12.2009 he seized the malkhana register of Baidyanathpur police station relating to the month of September 2009 vide page No.428 to SLNo.16/2009 and prepared the seizure list vide Ext.34. He left the seized malkhana register in the zima of S.I. of Police Lalit Mohan Meher under proper zimanama vide Ext.35. On the same day he received the chemical examination report from the R.F.S.L., Berhampur marked as Ext.36 which indicated that the exhibits marked as no.1, 3 and 5 contained flowering and fruiting tops of cannabis plant commonly known as ganja. On 02.01.2010 P.W.16 submitted charge sheet under sections 20(b)/29 of the N.D.P.S. Act and sections 482/34 of the Indian Penal Code keeping the investigation open for further verification of the seized vehicles by Scientific Officer and arrest of the other accused persons. On 27.04.2010 he submitted the supplementary charge sheet. 4. The defence plea of the appellants is one of denial and it is further pleaded that nothing was seized from their possession and they have been falsely entangled in the case. 5. During course of trial, in order to prove its case, the prosecution examined sixteen witnesses. P.W.1 Raj Gopal Padhi, P.W....
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....ion report. The prosecution also proved forty four material objects. M.O.I to M.O.VI are the sample packets, M.O.VII to XI are the mobile phones, M.O.XII to XLIII are the packets containing ganja and M.O. XLIV is the brass seal. 6. The learned Trial Court formulated the following points for determination:- (I) Whether the accused persons were found in illegal and unauthorized possession of contraband Ganja (cannabis) at the alleged time and place of seizure; (II) Whether the accused persons abetted the commission of offence under Section 20(b)(ii) (C) of the NDPS Act and were the party to a criminal conspiracy to commit such offence in pursuance of such criminal conspiracy at the alleged time and place of seizure; (III) Whether the accused persons used fake number plates in furtherance of their common intention at the alleged time and place of seizure. The learned trial Court after analysing the evidence on record has been pleased to hold that the evidence of P.W.14 is quite clear, consistent, convincing, credible and above reproach and his evidence does not suffer from any inherent infirmity or improbability and therefore, there is no cogent reason or ground to doubt his ....
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....contended that the malkhana registers of the concerned police stations have not been produced during trial by the prosecution to prove the safe custody of contraband ganja before its production in Court and dispatch for chemical analysis. It is further contended that neither the station diary entry nor the dispatch register was also produced during trial. It is further contended that there is no plausible explanation as to why the seized ganja were not produced during Court hours on 07.09.2009 before the learned Special Judge even though the articles were seized on 06.09.2009 and first information report was also lodged on that day. It is further contended that the brass seal which was given on the packets of seized ganja as well as sample packets was not produced in Court at the time of production of the seized ganja for verification and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. Mr. Chita Ranjan Swain, learned Addl. Standing Counsel appearing for the State in all the appeals on the other hand contended that the learned trial Court has not only discussed the evidence of the official witnesses vividly but after analysing the ....
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....- 7803 was seized from the appellant Firoz Alli Khan @ Bulu by P.W.16 as per seizure list Ext.17/3 but the R.C. book of the vehicle in question which was also seized under the same seizure list indicated that such vehicle stood in the name of one Kailash Chandra Panda, son of Baidanath panda of village-Gudum, P.S.- Khurda, Dist-Khurda. The registered owner of the vehicle has not been examined in this case. The other official witnesses like P.W.6 Narayan Chandra Pati, A.S.I. of police, P.W.9 Satyanarayan Mohanty and P.W.10 M. Ramesh Rao, the two home guards attached to Jarada police station, P.W.11 Debabrata Sahu, Tahasildar, Chikiti who were also present at the spot at the time of search and seizure have not stated about any such disclosure made by the five persons present in the vehicles implicating the appellant in the crime. Therefore, the only material available on record against the appellant Firoz Alli Khan @ Bulu is the confessional statement of co-accused persons before P.W.14, the Inspector in Charge of Jarada police station. 9. The object of section 25 of the Evidence Act, wherein it is mentioned that no confession made to a police officer, shall be proved as against a....
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....tion of offences under the Act. xx x x xx xx xx xx 21. For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefor, provides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code..............Any person on whom to investigate under chapter XII is conferred can be said to be a 'police officer', no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a rep....
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....m its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made there under. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him, he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the ....
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....ct. It is clear that a statement made under section 67 of the NDPS Act is not the same as a statement under section 161 of the code, unless made under threat or coercion. It is this vital difference, which allows a statement made under section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of section 24 to 27 of the Evidence Act." In case of Tofan Singh -Vrs.- State of Tamil Nadu reported in 2013 (12) SCALE 552, doubting the correctness of the dicta in Kanhaiyalal case (supra), it was held as follows:- "34. We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the "influence or authority" that an officer is capable of exercising over a person from whom a confession is obtained. The term "police officer" has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion o....
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....esh Rao, P.W.11 Debabrata Sahoo and P.W.14 Trinath Mishra are relevant so far as the presence of the appellant Rama Krushna Sahoo, Trilochan Sahoo, Subash Mohapatra @ Subash Chandra Mohapatra and Kailash Chandra Panda in the offending vehicles as well as seizure of contraband ganja of commercial quantity from those vehicles. (i) P.W.6 Narayan Chandra Pati, A.S.I. of Police stated that he accompanied the patrolling party on the date of occurrence and further stated about the approach of the three vehicles from the side of Andhra Pradesh towards Patrapur and about their detention at Patrapur bus stand. He further stated about the fleeing away of two persons from the vehicles and apprehension of five accused persons from the vehicle. He further stated about the detection of ganja packets in the vehicles, weighment of ganja found in those packets, drawal of sample of ganja and its seizure and sealing of ganja packets with the personal seal of the Inspector in charge in presence of P.W.11, the Tahasildar, Chikiti. It is contention by the learned counsels for the appellants that P.W.6 has not named which of the accused persons were present in which vehicle and he has also not stated ab....
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....ised by the learned counsels for the respective parties as were raised in case of P.W.6. Considering the submissions raised at the Bar by the learned counsels for the respective sides, it is found that the evidence of P.W.9 and P.W.10 are silent regarding presence of any of the appellants in the vehicles in question inasmuch as they have stated that they arrested five accused persons but they have not stated who those five accused persons are. They have not stated as to who was present in which vehicle, about the personal search of the patrolling party members and also of the accused persons present in the vehicles, drawal of sample or sealing of the sample packets and the bulk quantity of ganja. They are also not signatories to the seizure list (Ext.1/11) and therefore, the evidence of P.W.9 and P.W.10 are no way helpful to the prosecution and no reliance can be placed on such evidence. (iii) P.W.11 Debabrata Sahu, the Tahasildar of Chikiti stated to have arrived at the spot where the three vehicles were detained and he found the accused persons were sitting inside the vehicles. He disclosed his identities as Executive Magistrate before the accused persons and the accused person....
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....ul to the prosecution and therefore, not acceptable. (iv) As discussed above, the evidence of the other official witnesses to the search and seizure is found to be not satisfactory. The only evidence in that respect left out is that of P.W.14 Trinath Mishra, the Inspector in charge of Jarada police station. P.W.14 has stated about the receipt of reliable information regarding transportation of ganja in three vehicles from Visakhapatanum side towards Bhubaneswar which he entered in the station diary of the police station as S.D.E. No.120 dated 06.09.2009. He further stated about intimating the fact to Superintendent of Police, Berhampur and S.D.P.O., Chikiti over telephone which he entered in the station diary entries no.121 and 122 and he also submitted the report to those authorities which found mentioned in S.D.E. No.120 as per dispatch register no.1095 and 1096 respectively. He further stated that requesting S.D.M., Berhampur to depute one Executive Magistrate to remain present during search and seizure, he immediately along with other police officials left the police station in police jeep without obtaining any search warrant from the Court as there was no sufficient time to ....
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....d as follows:- "10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of his belief under the proviso to Sub-section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered ....
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.... which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an 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 Baldev 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 Sections 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 ....
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....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." In view of the settled position of law, now it is to be seen whether the contentions raised by the learned counsels for the appellants that there is non-compliance of mandatory provision under section 42(1) and 42(2) of the N.D.P.S. Act is sustainable or not. P.W.14 has come up with a case of compliance of section 42 of the N.D.P.S. Act in his examination in chief but in cross-examination, he has stated that he reduced the information to writing at the police station but he did not remember through whom he sent the written information to his higher authority and that he had not received any information regarding endorsement from his higher authority relating to the receipt of information. He further stated that the office of the S.D.P.O., Chikiti is about 20 kms. from Jarada police station. P.W.16 was the S.D.P.O., Chikiti who took charge of investigation of the case on 07.09.2009 from P.W.14 and he stated....
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....as stated that as there was no sufficient time to obtain search warrant from the Court and there was every possibility of escape of culprits with the contraband articles, he immediately along with other police officers and staff left the police station in the police jeep and in that respect station diary entry no.123 was made. The said station diary entry has not been proved in the case. P.W.14 has not stated about sending the copy of recording of ground of belief to his immediate official superior. Thus mere oral evidence of P.W.14 in absence of proof of corresponding documentary evidence is not sufficient to hold regarding compliance of the mandatory provisions of section 42 of the N.D.P.S. Act. Coming to the contentions raised by the learned counsels for the appellants regarding non-compliance of the provisions under section 55 of the N.D.P.S. Act, the said section mandates an officer in-charge of the police station to take charge and keep in safe custody of articles seized under the Act within the local area of that police station which may be delivered to him and shall allow any officer who may accompany such article to the police station or who may be deputed for the purpose....
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....09.2009 for sending the same for chemical analysis and to produce the seized articles to be kept in Court malkhana. The I.O. was directed to keep the seized articles and the samples drawn in safe custody till then. When the articles were seized on 06.09.2009 and the first information report was lodged on that day itself and P.W.16 took charge of investigation of the case on 07.09.2009 at 8.45 a.m., it is not understood as to why the seized articles along with the sample packets were produced in the night at 10.05 p.m. in the residential office of the learned Special Judge, Berhampur. It was the duty of the prosecution to adduce cogent evidence regarding safe custody of the seized articles along with sample packets in the malkhana of Jarada police station as well as Baidyanathpur police station. Rule 119 of the Orissa Police Rules which deals with malkhana register states, inter alia, that all the articles of which police take charge, shall be entered in detail, with a description of identifying marks on each article, in a register to be kept in P.M. form No. 18 in duplicate, and a receipt shall be obtained whenever any article or property of which the police take charge is made ov....