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Judgment
The present criminal appeal has been preferred against the order dated 04.05.2016 passed by the Court of the learned Additional Sessions-cum-
Special Judge, Angul in Special Case Number 20 of 2014 arising out of Handapa P.S Case Number 14/24.1.2014.
The prosecution story hinges on the fact that on 24.01.2014 the informant-Police Officer named Mahendra Dehury (P.W.8), the erstwhile S.I. of
Police, Handapa P.S on receipt of some confidential information with respect to alleged transport of contraband ganja by an unknown person in a
Honda Shine motorcycle bearing Registration Number OR-05-K-3718 which was heading from Patrapada towards Handapa. He entered the said fact
in the Station Diary vide Entry Number 474 dated 24.01.2014 and commanded A.S.I. of Police, P.N. Sahu, Home Guard Laxman Sahu, Home Guard
Kamadev Naik, Home Guard Duryodhan Dehury and Home Guard Krupasindhu Pradhan to verify the said information. Accordingly, they proceeded
to the spot immediately on 24.1.2014. Around 9.00 A.M. while the police surveillance party were waiting near “Jharana Nalaâ€, they found one
person coming on a motorcycle and proceeding towards Handapa and the registration number of the motorcycle bearing same registration number i.e.
OR-05-K-3718 and 2 plastic bags were found loaded on the same. The above person was detained with the motorcycle near the aforesaid
“Jharana Nalaâ€. On being asked, the accused gave his identity as Sanjay Kumar Behera son of Dasarathi Behera of village Laxmipriyapur and
admitted to be carrying two bags weighing nearly 50 Kgs. On being asked he stated that on the request of some unknown person, he was carrying the
aforesaid load of ganja so as to deliver the same at Handapa to a certain person. Then the S.I.-Sri Dehury telephonically informed the P.W.11, I.I.C,
Handapa P.S. regarding detention of the said accused along with the suspected contraband. He then guarded the accused along with the contraband
bags as well as the motorcycle and sent a requisition to the Sub-Divisional Magistrate, Athamalik for deputation of one Executive Magistrate to remain
present at the search site. Then he arranged two independent witnesses, namely, Saheb Behera (P.W.1) and Madan Naik (P.W.4) after securing their
willingness for the same, he then requested one Kalindi Sahu (P.W. 3) of Handapa Chhak to weigh the contents of the suspected bags and also
arranged for materials for sealing of the same. Around 12.00 A.M. the Executive Magistrate one Prabodh Kumar Rout (P.W. 10) who was Addl.
Tahasildar, Kishorenagar, arrived at the spot and in the presence of the Executive Magistrate, the official witnesses as well as the two independent
witnesses, the loaded bags were unloaded from the motorcycle and on verification, it was found that the first bag contained 21 smaller polythene
packets of suspected contraband goods and on measurement of the same, the total weight came to 20 Kgs. and 100gms. The second bag was found
to contain 30 numbers of smaller polythene packets and on the measurement of the same, the weight came to be 28 Kgs. and 700 gms. Then the
ganja bags along with the motorcycle were seized from the conscious and exclusive possession of the accused in the presence of the Executive
Magistrate. The S.I., Shri Dehury drew 25 gms. of ganja in duplicate from the first bag which was marked as Exhibit-A and another 25 gms. of ganja
in duplicate from the second bag and the bulk ganja bag was marked as Exhibit-B. The sample packets were marked as Exhibits-A/1, A/2, B/1 and
B/2. The specimen seal impression of Sri Dehury was used in sealing the bulk ganja bag and sample packets of the entire process of search and
sampling was done in the presence of the accused, the witnesses and the Executive Magistrate. A seizure list was prepared seizing the weighing scale
and the device which were forwarded to the custody of the weighman Kalandi Sahu. The brass seal was handed over to the custody of the Executive
Magistrate under zimanama. Then he drew up a plain paper FIR and presented the same to Handapa P.S. and handed over the sealed contraband
articles, the accused and the motorcycle. The I.I.C, Handapa P.S. (P.W.11) then took up the investigation, visited the spot, examined the witnesses,
prepared the spot map and produced the seized contraband articles, sample packets and the accused before the Special Judge, Angul who directed for
drawal of sample by the S.D.J.M, Angul. Later on the sample packets were sealed and sent to the S.F.S.L, Rasulgarh on the next day. The relevant
Station Diary entry, dispatch register and malkhana register were also seized. Subsequently, upon transfer of the erstwhile I.I.C, Handapa P.S., the
charge of the investigation was handed over to one Smrutiprava Pradhan, (P.W.12), who is SI, Handapa PS, who caused seizure of the detailed report
and intimation report in connection with the case. The chemical examination report was received with reference to the Handapa P.S. Case
No.14/24.01.2014 which revealed that the contents of the said packets were the fruiting and flowering tops of ganja. On conclusion of the
investigation, the said Smrutiprava Pradhan, S.I. submitted the charge sheet leading to the trial.
The trial commenced before the court of the learned Special Judge, Angul on 26.09.2014 and on 09.01.2015 charges were framed against the
accused under Section 20(b)(ii)(C) of the NDPS Act. The accused in his statement under Section 313 of the Cr.P.C refuted the charges and claimed
that he has been falsely implicated in the present case. In order to prove the charges, the prosecution relied on the evidence of 12 witnesses, out of
whom P.W. 1-Saheb Behera and P.W. 4-Madan Naik were independent witnesses to the search and seizure operation. P.W.2-Rasananda Biswal is
stated to be a witness to seizure. P.W. 3 is the weighman Kalandi Sahu. Thus, P.W.1 to P.W.4, are all independent witnesses and P.W.5 to P.W.12
are also independent witnesses. P.W. 5 is one police constable- Ashok Kumar Sahu, in whose presence, the detailed report and intimation report were
seized by the Investigating Police Officer. P.W. 6 is P.N. Sahu who is a witness to the search and seizure. P.W. 7 is one Sashibhushan Dehury who
is an A.S.I. of police and a witness to seizure of station diary, malkhana register etc. P.W.8 is the informant-Mahendra Dehury, who also led and
conducted the raid. P.W.9 is one Sukant Kumar Dash who is a stenographer in the office of S.P., Angul who produced the intimation report and the
detailed report before the Investigating Police Officer. P.W. 10 is the Executive Magistrate, P.K. Rout. P.W.11 is the erstwhile I.I.C., Ramesh
Chandra Dash of Handapa P.S. who initially took charge of the investigation of the case. P.W.12-Smrutiprava Pradhan S.I. of police Handapa P.S,
subsequently took over the investigation and filed the charge sheet in the instant case. Besides oral evidence, the prosecution has also relied on
Exhibits-1 to 29 in support of its case as well as M.Os. I to VI.
Mr. S.K. Patra, learned counsel appearing for the accused- Appellant submitted that in the instant case, there was complete go by to the
compliance of statutory requirements of law which assumed greater proportion in non-corroboration in the testimony of independent witnesses for
which aforesaid charge is not proved against the accused. Hence, the accused should be given the benefit of doubt and be acquitted. Further, he also
submitted that there was no compliance of the provisions of Sections 42, 50 and 55 of the NDPS Act which is evident from the inconsistent and
conflicting testimony of the official witnesses.
On the contrary, the learned Special Public Prosecutor, Sk. Zafarulla submitted that the charge against the accused has been proved in the
testimony of official witnesses which was further fortified in the testimony of the Executive Magistrate and production of material objects. Therefore,
the charge against the accused has been proved beyond reasonable doubt.
The learned counsel for the Appellant herein has taken this Court through the evidence on record and made multi pronged legal submissions to
defend his case. The first contention made by the counsel for the Appellant is that the compliance of the mandatory provisions of Sections 42, 50 and
55 of the NDPS Act have not been made in the present case. It is settled law that non-compliance of these essential provisions go to the root of the
matter and would cast serious aspersions and doubts on the veracity of the prosecution case and that the same might result in vitiating the trial.
Learned counsel for the Appellant further submitted that there was no evidence on record to show that the information was communicated to the
superior officer as mandated under the Act even after an elapse of 72 hours from the date and time of entry of the station diary on 24.01.2014. In the
instant case, the prosecution has not been able to produce the Station Diary book in the court during the course of the trial which clearly indicates
suppressing behaviour. He further submitted that the prosecution has also not examined the messenger who carried the information report to the
superior officer that is the Superintendent of Police, Angul and S.D.P.O, Athamalik. He further contended that in the instant case, the mandatory
provision of Section 42 of the Act has not been duly complied with by P.W. 10 which casts a serious doubt on the veracity of the prosecution case. It
is further submitted that as per the version of the prosecution, P.W.-8 went to the spot and apprehended the accused person, but admittedly, at that
point of time, the accused was not served any notice or verbally informed about his statutory right to be searched in the presence of gazetted officer.
P.W.8 in his cross-examination in Para- 8 of his deposition has specifically stated that “there is no reference in Exhibit-13 regarding the
Constitutional right of the accused to be searched in presence of an Executive Magistrate. The Executive Magistrate, (PW-10) Pramod Kumar Rout
stated “in my presence accused was not asked to be searched before Magistrateâ€. The P.W.- 10 has also not affirmed in his Examination-in-
Chief that prior to the search, the accused was informed of his statutory right to be searched in the presence of a gazetted officer. He submitted that
the law is clear that an officer acting on prior information and exercising his powers under Sections 41 (1) and 42 of the Act must comply with the
provision of Section 50 of the said Act before search of the accused person is made. Further, the accused should be informed of his statutory right to
be searched in the presence of a Gazetted Officer/Executive Magistrate. However, in the instant case prior to the search and seizure, admittedly, as
borne out from the evidence on record and the depositions of P.W.8 and P.W.10 clear that the statutory rights were not explained to the accused and
therefore, there is a brazen violation of the mandatory provision of Section 50 of the Act. To support the said proposition of law, the learned counsel
heavily relied on State Of Punjab vs. Balbir Singh AIR 1994 SC 1872. He further submitted that the independent witnesses i.e. P.W.1 and P.W.4
have turned hostile and not corroborated the prosecution case, which is an important fact that the Trial court ought to have taken notice of the said
fact, as they are said to be the witnesses to the search of the accused and seizure of the contraband goods. He further submitted that the safe custody
of the seized articles was also shrouded in mystery in the light of the evidence of P.W.11-Ramesh Chandra Das (I.O.) who has stated in Para-20 of
his evidence that Mahendra Dehury (P.W.8) was in-charge of the Malkhana register on the date of the incident but he had not taken charge of the
said register on 24.01.2014. The seal used for sealing the contraband goods has also not been produced before the Trial Court during the trial and
therefore, the safe custody of the seized articles also sparks suspicion. He further submitted that the prosecution is legally bound to prove the safe and
untampered custody of the contraband articles in question from the point of seizure till the time it reaches to the laboratory for its examination. The
prosecution, however, has miserably failed to prove the same and also failed to examine the constable who carried the sample to S.F.S.L,
Bhubaneswar, nor is there any evidence on record regarding the custody of the sample packet in question on the night of 24.01.2014 since the samples
in question were handed over to the constable. Admittedly, on 25.01.2014 at 7.10 A.M. by the Investigating Officer to deposit the same at S.F.S.L,
Bhubaneswar. He further submitted that as per the evidence of the Investigating Officer, the sample of the seized contraband was kept in the
malkhana, which is rightly reflected in the Station Diary vide Entry No.474 dated 24.01.2014. However, no such entry could be shown from the
records of the case despite the fact that the requirement of entry of contraband being deposited in the malkhana for safe custody and a corresponding
entry in the register to that effect is a mandatory requirement. The non- compliance of the same throws the story of prosecution out of gear. He
further pointed out that non-entry of the deposit of contraband in the malkhana register creates great deal of suspicion regarding the origin of the
sample sent to S.F.S.L., Bhubaneswar for testing. He further submitted that the learned Special Court never directed the S.D.J.M, Angul to draw
sample rather, directed the S.D.J.M., Angul to send the sample as revealed from the prayer made by the Investigating Officer vide Exhibit-18 and the
order of the Special Court exhibited as Exhibit-20. However, the Investigating Officer has deposed to the contrary and has stated that as per the
direction of the Special Court, the S.D.J.M., Angul had drawn a sample. The said sample packets were received along with a forwarding report. He
has further reiterated that the said witness has been examined as P.W.6 in this case but, he has not stated anything about receipt of such sample
packet or any forwarding report to that effect. He further submits that a bare perusal of the Chemical Examination Report exhibited as Exhibit-26, it
reveals that the chemical examiner has received a parcel consisting of one cloth packet, which was sealed with the impression of the seal
corresponding to the seal impression forwarded. However, there is no evidence on record, to suggest that the said sample packets were covered with
a cloth packet.
Heard learned counsel for the parties. For better appreciation of the submissions, it is imperative that the evidence of witnesses must be gone into in
some detail. P.W.1-Saheb Behera is said to be an eyewitness who has been examined by the prosecution with regard to the search of the accused for
the contraband goods as well as the seizure of the said goods which were found in the motorcycle. The said witness has turned completely hostile and
has denied every fact attributed to him by the prosecution. The prosecution states that he was an independent witness brought to the crime spot to
observe the search and seizure operation. Therefore, this witness brought by the prosecution has been presented as an independent witness. Under
the Act, such an independent witness is an important safeguard against arbitrariness or even a possible misadvanterous fabrication on the part of the
prosecution. This witness has denied his physical presence at the spot which undermines the strict compliance of Section 50 of the Act. He further
states that his signatures have been merely obtained by the prosecution, hence the question of compliance of Section 42 was also not supported or
corroborated by this witness since this witness has completely turned hostile which could be the only reliable evidence having the propensity to support
the prosecution case. Therefore, from the facts of the case, it emerges that this witness has merely identified his signatures which were put on
different exhibits (Exhibits-1 to 6).
P.W.2-Rasananda Biswal is a hostile witness who has again completely denied the version of prosecution. He has only admitted the facts about his
signatures that have been obtained on various documents and were marked as Exhibit-1/1, Exhibit-2/2 and Exhibit-3/1, Exhibit-4/1, Exhibit-5/1 and
Exhibit-6/1. When this witness was cross-examined by the defence, he has clarified that he was working as a labourer in the said locality and when he
had visited the police station to serve tea to the officers present in the police station, he was asked to put his signatures on certain papers and being
scared of police personnel, he put his signatures on the documents which were shown to him but he was completely unaware of the contents of the
papers which were never read over and explained to him. P.W. 3-Kalandi Sahu has been presented by the prosecution as a witness to the seizure
operation. This witness has also turned hostile and has denied the entire prosecution version.
P.W. 4-Madan Naik is allegedly an eyewitness to the search and seizure operation conducted by the prosecution. This witness has also turned
hostile and has denied the entire prosecution case in its entirety. However, he has admitted his signatures at Exhibit-1/3, Exhibit-2/3, Exhibit-3/3,
Exhibit-4/3, Exhibit-5/3, and Exhibit- 6/3.
P.W. 5-Ashok Kumar Sahu is a Havildar attached to the District Police Office, Angul. He has stated that Smrutiprava Pradhan S.I. of police of
Handapa P.S. had caused production of intimation report, detailed detection report in his presence and in the presence of one Srikanta Kumar Dash,
constable on being produced by stenographer, Sukanta Kumar Dash. He has further stated that a seizure list was prepared in his presence by the S.I.
which is marked as Exhibit-8 and Exhibit-8/1, which are his signatures.
P.W. 6-Panchunath Sahu working as A.S.I at Handapa P.S. He is a formal witness and was a member of the raiding party conducting the
operation. In his Examination-in-Chief, he has given a testimony which is consistent with the prosecution version. However, in his cross-examination
he states that the accused was searched within half an hour of his detention. He further states that the independent witnesses had arrived before
unloading of seizure bags. He further admits that he has not told the name of the accompanying police officers who were members of the raiding
party during his examination earlier. Another inconsistent aspect is that he has named the raiding party members during his Examination-in-Chief.
However in his cross- examination, he names one Kamadev Behera, who has not been named as the member of the raiding party.
P.W. 7-Shashibhushan Dehury was working as A.S.I at Handapa P.S on 24.1.2014. He is a formal witness. In his Examination-in- Chief, this
witness who is a seizure witness, testifies that a seizure list was prepared in his presence which has been marked as Exhibit-9 and Exhibit-9/1
whereupon his signatures are present. He states that on the said day at about 11.00 A.M., P.W.-11 caused seizure of the Station Diary book of the
police station, one dispatch register and the malkhana register of the police station in his presence. He also states that he is a witness to the requisition
sent for the deputation of an Executive Magistrate. In his cross-examination, this witness states that the dispatch register extract was only one page
long and with regard to the other documents, he states that he does not remember about the number of pages.
P.W.8-Mahendra Dehury on 24.01.2014 was working as S.I. Handapa P.S. This witness was leading the raiding party which allegedly conducted
the raid and seizure operation on the said day. In his Examination-in-Chief, he has more or less outlined the prosecution version as put forth in the FIR.
However, this witness during the cross-examination has admitted some facts which do have a material bearing on the aspects of statutory
compliances which will be dealt with later. He states that he was not present when the I.I.C. made station diary entry upon receipt of confidential
information. He further states that the I.I.C. did not instruct him the exact place where he was supposed to go. He also admitted that he did not inform
the matter or sought prior sanction from the Superintendent of Police and S.D.P.O., Angul. He further admits that there is no reference either in the
FIR or in his statement recorded under Section 161 of the Cr.P.C. as to whom he had deputed for bringing the weighman Kalindi Sahu along with the
weighing balance. He further admits that there is no reference in Exhibit-13 with regard to the right of the accused to be searched in the presence of
an Executive Magistrate or whether the fact that the same was made known to the accused before his search. Another aspect which is amply clear
from his deposition that the contraband goods were being transported in polythene packets and there is no mention of cloth bags.
P.W.9-Sukanta Kumar Dash was working as Stenographer on 24.01.2014 in the Police Department. He has admitted his signature on Exhibit-8/2
in the seizure list. He further states that the seizure of the intimation report was caused by one Smrutiprava Pradhan, S.I. Handapa PS. It is
worthwhile to mention here that the aforesaid Smrutiprava Pradhan has not been examined as a witness who otherwise seems to be a material
witness to establish the prosecution’s case.
P.W.10-Prabodh Kumar Rout (Executive Magistrate) on 24.01.2014 was working as Addl. Tahasildar, in the office of the Tahasildar,
Kishorenagar. In his Examination-in-Chief, he states that he received one letter from the office of the Sub-Divisional Magistrate, Athamallik vide
Letter No.184 dated 24.01.2014 to remain present at the time of raid and seizure of contraband goods and the said letter has been marked as Exhibit-
He states that he proceeded to the spot at Jharana Nala where the accused was present and holding two loaded polythene packets. He has further
described that out of the first polythene packet, there were 21 small packets looking yellow colour and in the second polythene packet, there were 30
such packets. He states that the samples were drawn in his presence and were seized by P.W.8. He states that about 3 to 4 independent witnesses
were present at the time of search and seizure whose names he could not recall. In his cross-examination, he states a material aspect which goes to
the root of the matter with regard to statutory compliance. He, admittedly, states that the accused was not asked in his presence, if he intended to be
searched before a Magistrate. He further stated that one polythene packet was spread on the ground near the bridge Jharana Nala and the said
polythene packets were opened up and measured. The colour of two polythene packets was described to be creamy white on the outside and were
yellow coloured inside the pockets.
P.W.11-I.O.-Ramesh Chandra Das was working as the then Inspector-in-charge (I.I.C.) of Handapa P.S. This witness is the Investigating
Officer (I.O.) who in his Examination-in-Chief has outlined the prosecution’s version and has stated that upon his transfer from Handapa P.S. he
handed over charge of the investigation of this case to Smrutiprava Pradhan (P.W.12) of Handapa P.S. In his cross-examination, he has not made it
clear and becomes unambiguous as to who was in-charge of the Malkhana on the said date. He makes a categoric admission that “re-sealing†of
the seized contraband was done for which he had not secured the signatures of the Executive Magistrate or the witnesses at the time of re-sealing
and depositing the exhibits in the malkhana. This aspect of the matter has been verified by the trial court and was being seriously noted. He further
states that there is no corresponding entry in the malkahana register to indicate that the sealed exhibits received from the court, were deposited in the
malkhana but there is a corresponding Station Diary entry made to that effect. He further denies that the accused was not informed of his rights to be
searched in the presence of an Executive Magistrate or the said rights were not made aware to the accused.
P.W.12-Smrutiprava Pradhan took charge from P.W.11 as the Investigating Officer in the present case. She has supported the prosecution’s
version to the extent of her participation in the case. This witness after completing investigation on 19.07.2014 submitted the charge sheet. In her
cross-examination, she admits that she was not aware of this fact because the seizure of the dispatch register or the receipt register of the S.P. Office
everything took place prior to her taking charge. She further admits that even a carbon copy of the requisition sent by her predecessor to the office of
the S.P. was not available.
Now, in so far as the first limb of the submission made by the counsel for the Appellant is concerned, the thrust of the argument was squarely on
the issue of non-compliance of the statutory requirements of law the same must be viewed at the backdrop of the non-corroboration in the testimony
of the independent witnesses. The submission made at the bar is that there was no substantial compliance of the provisions of the Act in so far as
Sections 42, 50 and 55 are concerned.
The second limb of submission made by the learned counsel for the Appellant is that all the independent witnesses in the instant case have turned
hostile. The collective outcome of their deposition is that the signatures were lent by them under coercion by the prosecution and inside the Handapa
Police Station. They have even denied their presence at the seizure spot. Therefore, they have categorically stated that they have nothing to do insofar
as the prosecution version is concerned. However, the only element for support to the prosecution version is that their admission to the signatures on
the exhibits which are shown as evidences. However, while doing so, they have clarified that they had put their signatures under threat or coercion by
the prosecution and that they did not know about the contents thereof.
In the instant case, there are two types of witnesses present, namely, P.W.1 to P.W.4 are independent witnesses who have turned hostile and
have not supported the prosecution case at all. On the other hand, they have clarified that the signatures which they have been put on the exhibits
have been taken threat and coercion by the prosecution. The other categories of witnesses are P.W. 5 to P.W. 12, who are formal witnesses, who
have colluded with each other to make out a false case against the petitioner. Another submission made is that since the official witnesses can be said
to be interested witnesses in this type of cases, the Act requires that the testimony must be scrutinized properly especially at the backdrop of the
requirement of independent witnesses. But those independent witnesses have denied the prosecution version in entirety.
The next submission made with regard to the material contradictions, improvements and embellishments that are found in the version of the
prosecution witnesses (P.W.5 to P.W. 12). It is stated that there are material contradictions with regard to the manner in which the accused was
apprehended. The evidence of P.W.8, who is the informant in the instant case, has stated in his deposition that “we saw one person riding Honda
motorcycle bearing Regd. No. OR-05-K-3718 and the motorcycle was loaded with two numbers of bags. The rider and on being asked to disclose his
name as Sanjay Kumar Beheraâ€. On the contrary, the evidence of P.W.6 Panchunath Sahu who has categorically stated that “we chased the
motorcycle and apprehended that person while was trying to escapeâ€. It is clear from the perusal of the depositions made by the aforesaid witnesses
that the manner in which the accused was apprehended casts serious doubts as to how and where the accused was actually apprehended and the
manner thereof. It is to be noted here that these embellishments or material contradictions in the prosecution’s case are being gone into in great
detail, given the fact that the independent witnesses who are important safety valve under the scheme of the Act have denied the prosecution’s
version in unison. Also given the fact that these independent witnesses (P.W.1 to P.W.4) have categorically stated that either the signatures were
obtained by the police inside the police station under threat or coercion. They might have merely been asked to put the signatures on some documents
inside the Police Station by the said raiding police party. It is in this backdrop, the court will be constrained to look at all sorts of contradictions and
embellishments which are found in the instant case. In so far as P.W.3 the weighman is concerned, he has not supported the prosecution case too.
The deposition of this witness is material and has an important bearing on the fact that the contraband articles were neither seized in his presence nor
has the measurement of weight of the same been done on the spot. He has disowned the preparation of documents and expressions. However, he has
admitted his signatures on Exhibits-1/2, 2/2, 3/2, 4/2, 5/2 and 6/2. He has further denied the prosecution’s version which stated that the spring
balance and the weighing device used by him were released in his zima.
In so far as the P.W.10, the Executive Magistrate is concerned he has not supported the facts stated by the versions of P.W.6 and the P.W.8 to
the extent that the P.W.6 has stated that “personal search of the accused was taken in presence of executed magistrate†and the P.W.8, the
informant, has stated that “we searched the person of the accused in the presence of the Magistrateâ€. The fact that both these witnesses seem to
suggest that the accused was informed of his rights to be searched in the presence of a gazetted officer or Executive Magistrate. However, this
witness has categorically stated in his evidence that the members of the raiding party have not informed the accused in his presence about his right to
be searched in the presence of a gazetted officer or Executive Magistrate which ought to have been done as the same was a statutory requirement
under the Act.
In the instant case, the admitted and consistent version of the prosecution is that the contraband goods were loaded on a motorcycle which has
been seized. The prosecution has neither led evidence nor made any investigation with regard to the fact as to who was the owner of the motorcycle.
This aspect assumes greater importance because the Hon’ble Supreme Court while dealing with the connotation of “person†as mentioned
under Section 50 of the Act has held that in cases where contraband goods have been transported using a vehicle not only does the question of search
of the person assume importance but also a mandatory enquiry must be done with regard to the vehicle in question which was transporting the
contraband goods. On this account also the prosecution has failed miserably in so far as investigation of this aspect is concerned. This sort of an
approach shows a callous and casual approach on the part of the prosecution.
Another important aspect of the matter has been brought to the notice of this Court is that under Section 55 of the Act a solemn duty has been
cast upon the Officer-in-Charge of the Police Station to receive and keep the seized contraband goods in safe custody. There is a need for affixing a
seal package so as to ensure that all samples obtained are not changed and non-compliance with the same is a serious and vital infraction of the
stipulations contained under the said provision. In the instant case P.W.11-Ramesh Chandra Das who is the investigating officer has stated in his
evidence that “as S.I. Mahendra Dehury was in charge of Malkhana on the date of the incident… I have not taken over the charge of the
Malkhana Register on 24.1.2014â€. This ambiguous and incoherent statement on such a vital issue on the part of the witness casts a serious shadow
on the question of the safe custody of the seized articles. Thus, the question of keeping the allegedly seized ganja by the I.I.C after making a
Malkhana Entry No.8/2014 is completely doubtful as this witness seems to suggest at one point, during the cross-examination, the S.I. was in-charge
of the malkhana as well as the Malkhana Register. Another critical and suspicious aspect of the matter is that P.W.11 has also admittedly stated that
the samples had been opened at some stage and that a “re-sealing†of the same had been done. This witness has neither explained as to why
opening of the samples, already deposited in the malkhana, was necessary. This dubious fact has vital bearing on sanctity of the samples in question.
The aforesaid Entry No.8/2014 is painfully silent on this aspect and a closer examination of the issue screams and shouts for judicial attention. It is for
this very reason why the Act has provided various inbuilt safeguards and mechanisms to protect the rights of the accused at various stages starting
from the search of the accused which has been dealt with and taking care of under Section 50 of the Act, seizure of the contraband goods which has
been provided under Section 42 of the Act which strictly postulates the manner in which the same has to be done and Section 55 of the Act which
provides for stringent and mandatory safe keeping of the contraband goods seized. Apart from the inbuilt failsafe mechanisms and safeguards under
the Act the Hon’ble Supreme Court of India in a series of judicial decisions has interpreted and clarified with great clarity that the aforesaid
provisions are not merely procedural requirements but these are substantive provisions which affect the right of the accused. Especially, at the
backdrop of this, otherwise skewed Act where there is a reverse burden of proof which is contradistinct from other Acts under the umbrella of
criminal law.
A shocking aspect of the matter also comes to the fore when the cross-examination of P.W.11 is perused. The prosecution’s case is that the
sealed contraband goods and the polythene packets containing them were sealed in a cloth cover and marked as M.O.-VI. It has been said that it is
this cloth bag which was sent to the forensic laboratory for testing. The fact that cloth packets containing the contraband goods were received is
evident from the report of the laboratory. The witness is forced to state that the clothes packet has been destroyed by white ants inside the malkhana.
This sort of distortions not only casts a serious doubt regarding the contents of the originally seized contraband articles and sent to the forensic
laboratory, but also tells rather a sordid and troubling tale of the horrendous manner in which the “safe keeping†of the seized articles were done.
The fact that no command certificate has been issued in the instant case also casts a shadow of doubt with regard to the fact as to whether the
P.W.6 and one Laxman Sahu, Home Guard (who has not been examined by the prosecution) had indeed taken the sealed packets and 4 paper
envelopes allegedly drawn as samples for causing production in the court of the learned Special Judge, Angul. Furthermore, admittedly, the empty
packets were not sent to court along with the seized property. The handling of the seized goods leaves much to be desired even at an anterior stage
i.e. when the samples drawn by the S.D.M., Athamallik (Executive Magistrate) were allegedly brought to the police station and deposited in the
malkhana for which there is no corresponding entry in the Malkhana Register which has also been admitted by P.W. 11 in his cross-examination. In
fact, the said witness tries to unsuccessfully explain the said lapse by stating that an entry therefore has been made in the station diary.
The right of an accused under the scheme of the present Act has been explained in the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299 :
1994 SCC (Cri) 634 where then Hon’ble Apex Court while dealing with a matter arising out of the NDPS Act has relied on American
jurisprudence as held as under:
“19. The author Lewis Mayers in his book titled “Shall We Amend the 5th Amendment†p. 228 stated as under:
“To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and
injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the year has
swung to the right. Even as long ago as the opening of the twentieth century, Justice Holmes declared that ‘at the present time in this
country there is more danger that criminals will escape justice than that they will be subject to tyranny’. As the century has unfolded the
danger has increased.
Conspiracies to defeat the law have in recent decades become more widely and powerfully organized and have been able to use modern
advances in communication and movement to make detection more difficult. Law breaking tends to increase. During the same period an
increasing awareness of the potentialities of abuse of power by law- enforcement officials have resulted, in both the judicial and the
legislative spheres, in a tendency to tighten restrictions on such officials, and to safeguard even more jealously the rights of the accused,
the subject, and the witness. It is not too much to say that at mid-century we confront a real dilemma in law enforcement.
In Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)] the Court, considering the question whether the accused be apprised of
his right not to answer and keep silent while being interrogated by the police, observed thus:
“At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he
has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it â€" the threshold
requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the
inherent pressures of the interrogation atmosphere.â€
It was further observed thus:
“The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the
individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing
it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of
the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary
system â€" that he is not in the presence of persons acting solely in his interest.â€
When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under
Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the
officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a
Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory.â€
These rights which popularly came to known as the Miranda rights which dealt with the right of the accused, have since been jealously guarded under
the American legal system. In fact, the Hon’ble Supreme Court of India have also reiterated the sanctity and the need to protect the rights of the
accused, especially in matters under the Act in question where a reverse burden of proof has been provided.
The Hon’ble Supreme while dealing with the issue of importance and significance of statutory compliance under Section 50 of the Act has
held that the same is an issue which goes to the root of the matter and that there is a indefeasible right vested in the accused insofar as the issue of
intimating the accused of his right is concerned. In the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299 : 1994 SCC (Cri) 634, the
Hon’ble Supreme Court has held as follows:
“16. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section
50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision
(Section 50) lays down that any officer duly authorized under Section 42, who is about to search any person under the provisions of
Sections 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the
departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the
authorised officer concerned can detain him until he can produce him before such Gazetted Officer or the Magistrate. After such
production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he
shall direct that the search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a
female.
The words “if the person to be searched so desires†are important. One of the submissions is whether the person who is about to be
searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such
person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be
conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer
to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it
appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so
requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an
important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can
be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the
authorised officer to inform the person to be searched of his right.â€(emphasis supplied)
A constitution bench of the Hon’ble Supreme Court in the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 : (2009) 3 SCC (Cri)
887 has dealt with the legislative background of the present enactment. The Statement of Objects and Reasons of the NDPS Act makes it clear that
to make the scheme of penalties sufficiently deterrent to meet the challenge of well-organised gangs of smugglers, and to provide the officers of a
number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences with
regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national Governments, this
comprehensive law was enacted by Parliament enabling exercise of control over psychotropic substances in India in the manner as envisaged in the
Convention on Psychotropic Substances, 1971 to which India has also acceded, consolidating and amending the then existing laws. However, while
doing so the Hon’ble Apex Court has employed a word of caution that since under the enactment there is a reversed burden of proof the courts
need to have that aspect at the back of their mind while dealing with evidence in such cases.
In the case of Kishan Chand v. State of Haryana (2013) 2 SCC 502, the Hon’ble Supreme Court has again cautioned the courts and advised
them to act meticulously while dealing with evidence in such matters. The Hon’ble court has held:
“16. We are unable to contribute to this interpretation and approach of the trial court and the High Court in relation to the provisions of
sub-sections (1) and (2) of Section 42 of the Act. The language of Section 42 does not admit of any ambiguity. These are penal provisions
and prescribe very harsh punishments for the offender. The question of substantial compliance with these provisions would amount to
misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher
punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial
compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases
where the language of the provision strictly or by necessary implication admits of such compliance.â€
The Hon’ble Supreme Court has also held that compliance of Section 42 of the Act is so cardinal in the matter that a total compliance of that
one in the case of Rajinder Singh v. State of Haryana (2011) 8 SCC 130 : (2011) 3 SCC (Cri) 366, has held that:
“11. It is therefore clear that the total non-compliance with the provisions sub-sections (1) and (2) of Section 42 is impermissible but
delayed compliance with a satisfactory explanation for the delay can, however, be countenanced. We have gone through the evidence of
PW 6 Kuldip Singh. He clearly admitted in his cross- examination that he had not prepared any record about the secret information
received by him in writing and had not sent any such information to the higher authorities. Likewise, PW 5 DSP Charanjit Singh did not
utter a single word about the receipt of any written information from his junior officer, Inspector Kuldip Singh. It is, therefore, clear that
there has been complete non-compliance with the provisions of Section 42(2) of the Act which vitiates the conviction.â€
The Hon’ble Supreme Court has emphasised that in a prosecution relating to the Act the question as to how and where the samples had been
stored or as to when they had been dispatched or received in the laboratory is a matter of great importance and a non-compliance thereof could also
result in the trial being vitiated. In the case of State of Gujarat v. Ismail U Haji Patel (2003) 12 SCC 291 the Hon’ble Supreme Court has held as
follows:
“5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after
analysing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not
established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. State of
Kerala [1993 Supp (3) SCC 665 : 1993 SCC (Cri) 1082] the view of the High Court is in order. It is not the delay in sending the samples
which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the
Chemical Analyst related to the seized articles.
Further, there was nothing brought on record to show as to under whose directions the samples were sent for chemical examination. The
High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act
provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of
the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept,
and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in
order. Judgment of the High Court does not warrant any interference in our hands and the appeal is dismissed.â€
The issue of safe custody of contraband goods assumes significant and seminal importance which has been appropriately dealt in State of
Rajasthan v. Tara Singh (2011) 11 SCC 559 : (2011) 3 SCC (Cri) 407 where the Hon’ble Supreme Court has succinctly put as under:
“6. We must emphasise that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to
when they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in
these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised
which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no
interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged.â€
The Hon’ble Supreme Court in a catena of judgments has held that in cases of prosecution under the Act in question where most of the
witnesses are formal in nature, the testimony of the independent witnesses must be used as a barometer and be looked at carefully in order to
ascertain the trustworthiness of the prosecution case as well as the evidence given by the formal/official witnesses. The reason behind giving
credence to the evidence of the independent witnesses in such cases is due to the fact that it is commonly found that the search and seizure operations
are normally conducted at isolated places where no other witnesses are likely to be found. In such situations the evidence of the independent
witnesses who are common persons which give a quick peek into the trustworthiness of the prosecution’s case. It has also been held that in cases
where the independent witnesses have turned hostile, as in the present case where PW1 to P.W. 4 have turned hostile, the evidence of all the other
official/formal witnesses must be looked at with greater scrutiny due to the fact that once the independent witnesses turned hostile the
prosecution’s case comes under a cloud of suspicion. Furthermore, not only have the independent witnesses turned hostile but have rather gone on
to state that they have given the signatures on the documents shown to them under threat and coercion. In this context it gives an impression that the
prosecution has browbeaten such independent witnesses into giving their signatures. What is more telling is the fact that the independent witnesses
have corroborated each other’s version that the prosecution has obtained their signatures under threat and coercion. Therefore, in all such cases,
normally, courts have inclined in favour of acquittal if it is coupled with other material inconsistencies and non-compliance as provided under the Act.
In some of the landmark judgments where the Hon’ble Supreme Court has dealt with such situations are Union of India v. Jarooparam (2018) 4
SCC 334, Bhola Ram Kushwaha v. State of M.P (2001) 1 SCC 35., and in the case of Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321
The leaned Trial Court has failed to appreciate the submissions made before it and also failed to appreciate the legal position in such cases which
require a great degree of scrutiny to be made. The court below has mostly relied on the evidence of the PW8, PW 10, and PW 11 which have been
reiterated the prosecution’s case and have justified in their Examination-in-Chief stating that necessary statutory compliances have been made
during the search and seizure stage. The trial court ought to have taken note of the other facts and circumstances of the case which have the quality
of a deafening silence and point unerringly at another probability. It is settled law that in cases where the legislation provides for stringent and harsh
punishments, when there is a possibility that another view may be possible, where a benefit of doubt might accrue to the accused, in such case it is
imperative that those should be examined with extra care and caution. It is therefore held that the trial court below has proceeded on a single track
and merely relied upon the evidence of the witnesses aforesaid in order to reach a quick conclusion and render a guilty verdict.
In the light of the aforesaid discussions, submissions made, perusal of evidence, this Court is of the view that keeping in mind the material irregularities
conducted during the search and seizure operation and inconsistencies in the prosecution’s case go deep to the root of the matter and have caused
non-compliance of the statutory safeguards as provided under Sections 42, 50 and 55 of the Act. Resultantly, the instant appeal is allowed.
Accordingly, the conviction and sentence of the appellant vide judgment dated 4.05.2016 passed by the learned Addl. Session Judge- cum-Special
Judge, Angul in Special Case No. 20 of 2014 is hereby set aside. The appellant- Sanjay Kumar Behera be set at liberty forthwith, if his detention is not
required in any other case. L.C.R be returned forthwith.