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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.