Ram Chandra Mohanty Vs. State of Orissa - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - the appellant, as alleged made efforts to put the four packets in his mouth but he failed in his attempt and the police personnel seized four packets. after completing all other formalities, charge sheet was failed in court. 50 of the act and the said provision being mandatory, such non-compliance vitiated the trial and further, there has been delay in sending the seized articles for chemical examination and the prosecution has failed to explain the safe custody of the articles between the date of seizure and the date of despatch for chemical examination. he has also emphatically urged that mere delay in sending the seized articles for chemical examination would not enure to the benefit of the accused as the teal controversy which calls for adjudication is with regard to safe custody and the prosecution has successfully established that the seized article was in safe custody during the interregnum period. very relevant in this behalf is the testimony of the officer conducting the search that he bad informed the preson to be searched that he was entitled to demand that the search be carried out in the presence of a gazetted officer or a magistrate and that the person had not chosen to so demand. state of orissa has expressed thus :it is now well-settled that under section 50(1) of the ndps act, the empowered officer is obliged to inform the person to be searched of his right if he so requires to be searched before the nearest gezetted officer or the nearest magistrate and non-compliance of such mandatory provision would affect prosecution case. it is also equally well-settled that burden is on the prosecution to prove due compliance of the aforesaid provision and there is no question of presuming that such requirement of section 50(1) of the ndps act was complied with. 10. the second submission of sri acharya is with regard to the absence of evidence, in relation to safe custody of the seized article. now the question falls for determination is whether there is evidence on record to arrive at a conclusion that from 13-7-1990 till 17-10-1990, the seized articles were in safe custody. , that the seized articles were kept in safe custody in proper form. ' section 55 of the act mandates that an officer-in-charge of the police-station shall take charge and keep it in safe custody. section 55 of the ndps act mandates that an officer-in-charge of a police station shall take charge of and keep in safe custody all articles seized under the act which may be delivered to him. state of orissa, reported in (1994) 7 ocr 108. 12. on the aforesaid analysis of the facts and law, there is no room for doubt that the seized articles were not kept in safe custody.dipak misra, j.1. the appellant has been convicted under sec. 21 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter referred to as ('the act') for being in possession four packets of heroin in violation of the provisions of the act and has been sentenced to undergo r. i. for ten years and to pay a fine of rupees one lakh, in? default to undergo further. r. i. for two years.2. the prosecution case, in brief, is that on 30th july, 1930 the sub-inspector of police, town police station, puri (pw 6) having received secret information about the illegal sale of heroin near the southern gate of temple of lord jagannath, proceeded in a jeep along with his staff and after a short chase, brought the accused under control. the appellant, as alleged made efforts to put the four packets in his mouth but he failed in his attempt and the police personnel seized four packets. finding the seized articles to be heroin, the same was weighed and a seizure-list was prepared in presence of witnesses and appellant was forwarded to the court along with the cash of rs. 97/-which was also recovered from his custody. the seized article was sent for chemical examination. after completing all other formalities, charge sheet was failed in court.3. the plea of accused-appellant was one of complete denial.4. to bring home the charges, the prosecution examined six witnessas and number of documents were brought on record as exhibits. the defence chose not to adduce any evidence.5. the learned trial judge on consideration of the oral and documentary evidence on record, convicted the appellant as indicated above. 6. sri manoranjan acharya the learned counsel attacked the judgment on two grounds, namely, there has been non-compliance of the provisions enjoined under sec. 50 of the act and the said provision being mandatory, such non-compliance vitiated the trial and further, there has been delay in sending the seized articles for chemical examination and the prosecution has failed to explain the safe custody of the articles between the date of seizure and the date of despatch for chemical examination. such non-explanation, as submitted by sri acharya gives rise to suspicion entitling the accused to the benefit of doubt.7. sri sangram das, the learned additional standing counsel in his turn supports the judgment of the court below. submission of sri das is, section 50 of the act is not attracted in the present case, inasmuch as no proper foundation has been laid down by the appellant during cross-examination. he has also emphatically urged that mere delay in sending the seized articles for chemical examination would not enure to the benefit of the accused as the teal controversy which calls for adjudication is with regard to safe custody and the prosecution has successfully established that the seized article was in safe custody during the interregnum period.8. admittedly, the provision of section 50 of the act is attracted to the case of the present nature as pw 6, the sub-inspector of police, had categorically stated that he had received secret information about illegal sale of heroin near the southern gate of the temple. fact of prior information having been admitted there is no iota of doubt, the provision of section 50 is attracted. the question that falls for consideration is whether there has been any foundation by suggestion in the cross-examination. needless to say, the burden is on the prosecution to establish that section 50 has been complied with. however, dealing with the contention of sri das, 1 notice that in paragraph 14 of the cross-examination of pw 6, the sub-inspector has stated that he has not mentioned in the case diary that the accused was asked to exercise his option to be searched in presence of a gazetted officer or a magistrate. in his evidence, he has not stated anywhere that he has apprised the accused with regard to his right of being examined either before a gazetted officer or a magistrate. in absence of the same and without indication of the same in any contemporaneous documents and the candid admission of the investigating officer that he has not mentioned in the case diary, it is crystal clear that there has been non-compliance of the mandatory requirement as envisaged in the aforesaid provision. the apex court in the case of state of punjab v. balbir singh, reported in air 1934 sc 1872 has held that section 50 of the act is mandatory and non-compliance of it vitiates the trial. relying on the ratio of the aforesaid decision, a three judge bench of the apex court in the case of saiyad mohd. saiyad umar saiyad v. state of gujarat reported in (1995) 3 scc 610, has expressed thus :'having regard to the object for which the provisions of section 50 have been introduced into the ndps act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a gazetted officer or a magistrate, there is no room for drawing a presumption under section 114, illustration (e) of the indian evidence act, 1872. by reason of section 114 a court 'may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in there 'relation to facts of the particular case'. it may presume '(e) that judicial and official acts have been regularly performed'. there is no room for such presumption because the possession of illicit articles under the ndps act has to satisfactorily established before the court. the fact of seizure thereof after a search has to be proved. when evidence of the search is given all that transpired in its connection must be stated. very relevant in this behalf is the testimony of the officer conducting the search that he bad informed the preson to be searched that he was entitled to demand that the search be carried out in the presence of a gazetted officer or a magistrate and that the person had not chosen to so demand. if no evidence to this effect is given the court must assume that the person to be searched was not informed, of the protection the law gave him and must find that the possession of illicit articles under the ndps act, was not established.' 9. recently, this court in the case of surendranath mohanty and another v. state of orissa has expressed thus :'...it is now well-settled that under section 50(1) of the ndps act, the empowered officer is obliged to inform the person to be searched of his right if he so requires to be searched before the nearest gezetted officer or the nearest magistrate and non-compliance of such mandatory provision would affect prosecution case. it is also equally well-settled that burden is on the prosecution to prove due compliance of the aforesaid provision and there is no question of presuming that such requirement of section 50(1) of the ndps act was complied with.' in the aforesaid case, though it was stated by the investigating officer in court that despite the accused person being made aware, the right granted under section so was not availed by the accused, the . said fact was not mentioned in the forwarding report and there was no contemporaneous document. the court took the view there had been non-compliance of the aforesaid provision and accordingly, set aside the order of convicton. in the case in hand in absence of any proof and in view of the candid admission of the investigating officer, i am of the considered view that the mandatory provision as contemplated under section 50(1) of the act has not beer complied with. on that ground alone the order of conviction becomes unsustainable.10. the second submission of sri acharya is with regard to the absence of evidence, in relation to safe custody of the seized article. pw 6 in paragraph 10 of his evidence has stated that he had forwarded the accused with original seizure first. on 17-10-1990, he made a prayer for sending the seized articles for chemical examination for testing and accordingly, the same was sent. as it appears from the evidence of pw 6 in paragraph 9, he has stated the seized article was handed over in a sealed condition to the officer-in-charge of the police-station. the seized article was not produced in court on (31-7-1990. there is no mentioning of the same in the forwarding report and the order dated 31-7-1990 passed by the learned sub-divisional judicial magistrate, puri is silent in that regard. in fact, the seized packets, were produced before the sdjm on 17-10-1.990 and that has been so records by the said court. now the question falls for determination is whether there is evidence on record to arrive at a conclusion that from 13-7-1990 till 17-10-1990, the seized articles were in safe custody. though pw 6 has slated that it was with the i. o. the i. o. has not been examined. it is difficult to accept, in absence of positive evidence by the i. o., that the seized articles were kept in safe custody in proper form. it cannot be accepted for certain that the article which was seized was in actuality sent for chemical examination. in the case of valsala v. state of kerala reported in air1994 sc 117, the apex court had as follows :'suffice it to say that the article seized appears to have been not kept in custody in proper custody and proper form so that the court can be sure that what was seized only was sent to the chemical examiner.' section 55 of the act mandates that an officer-in-charge of the police-station shall take charge and keep it in safe custody. in the case of ajaya kumar naik v. state of orissa: 11:08 am 12/15/04, while dealing with section 55 of the act after narrating fact situation, this court ruled thus :'...next with regard to the custody of the seized article. section 55 of the ndps act mandates that an officer-in-charge of a police station shall take charge of and keep in safe custody all articles seized under the act which may be delivered to him. in para 3 of the examination-in-chief the i. 0. stated that after reaching the police station he made over the seized articles kept in the sealed packet to the officer-in-charge for proper prospective, pw 5. the officer-in-charge did not state anything about his taking charge of custody of the seized article. there is no corresponding entry in the case diary indicating that the custody of the seized article was given to the officer-in-charge, therefore, there is no material to hold that the mandatory provisions of section 55 of the act that the seized article must be kept with the officer-in-charge of the police station to have been complied with. as held by the supreme court, such non-compliance of mandatory provisions will affect the case as a whole.'11. the same view has also been taken in the caste of laxmi dhar mohapatra v. state of orissa, reported in (1994) 7 ocr 108.12. on the aforesaid analysis of the facts and law, there is no room for doubt that the seized articles were not kept in safe custody.13. in view of my preceding analysis, both the contentions raised by sri acharya are to be accepted and the judgment of conviction and the order of sentence are liable to be set aside and accordingly, i do so. the appellant be set at liberty forthwith if his detention is not required in connection with any other case.14. in the result the appeal is allowed.