| SooperKanoon Citation | sooperkanoon.com/533319 |
| Subject | Criminal |
| Court | Orissa High Court |
| Decided On | Jul-07-1995 |
| Case Number | Criminal Appeal No. 333 of 1993 and Jail Criminal Appeal No. 344 of 1993 |
| Judge | A. Pasayat, J. |
| Reported in | 1995(II)OLR399 |
| Acts | Narcotic Drugs And Psychotropic Substances Act, 1985 - Sections 55 |
| Appellant | Bhagaban SwaIn and Bishnu Harapal |
| Respondent | State |
| Appellant Advocate | S.K. Mohanty, Adv. in Crl. A. No. 333/93 and ;R.C. Misra, Adv. in J. Crl. A. No. 344/93 |
| Respondent Advocate | N. Prusty, Addl. Government Adv. and ;S. Jena, Addl. Standing Counsel |
| Disposition | Appeal allowed |
| Cases Referred | In Laxmidhar Mohapatra v. State of Orissa
|
Excerpt:
- labour & services
pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules.
- state of orissa :1994 (i) olr 90 if was observed that if a vital and decisive link is missing regarding safe custody of the seized article, it has to be held that the prosecution has failed to establish that the seized article was the very same article which was sent for chemical examination.a. pasayat, j.1. these two appeals are interlined being directed against the judgment of conviction and sentence passed by the learned additional sessions judge, jeypore in s.c. no. 86 of 1992. bhagaban swain (appellant in crl. a. no. 333 of 1993) and bishnu harpal (appellant in jail crl. a. no.344 of 1993), hereinafter referred to as the 'accused', by name faced trial on the accusation of having committed an offence punishable under section 20(b)(i) of the narcotic drugs and psychotropic substances act, 1985 (in short, 'the act') for allegedly possessing and transporting 1.25 quintals of ganja.2. sans unnecessary details, prosecution case as unfolded during trial is as follows :on the early hours of 15-6-1992, shri s.c. mallik (pw 4), officer-in-charge of chitrakonda police station while performing patrol duty along with sub-inspector shri n. c. barik (pw 1) and other constables found a car bearing registration no. atv 1260 coming from sileru side. on suspicion, pw 4 detained the said car on sileru-chitrakonda road near chitrakonda guest house. the accused persons were found to be sitting in the vehicle with some ganja packets. on demand by pw 4, they could not produce any permit or licence for possessing and transporting the ganja in the said vehicle. witnesses were called, and in presence of tahasildar. chitrakonda (pw 5) the alleged contraband articles 37packets containing 1.25 quintals of ganja were recovered from the car. the ganja packets were seized, the car, cash and knife were also seized, and a seizure list was prepared, plain paper fir was drawn, and a case was registered under chitrakonda police station. the accused persons were forwarded to the court along with the seized ganja packets and samples were collected from the seized ganja. on completion of investigation charge-sheet was placed and the accused persons faced trial.3. the accused persons denied their complicity with the offence in question.4. in order to further its case prosecution examined five witnesses. two witnesses were examined by accused bhagaban in support of his plea that he had come to the house of his brother at chitrakonda. on 15-6-1992 while he was waiting at chitrakonda to catch a bus, he was apprehended by the police when he went to a nearby place on seeing a gathering.5. on evaluation of materials and the evidence on record, the learned trial judge found the accused persons guilty, convicted and sentenced each one of them to undergo rigorous imprisonment for four years, and to pay a fine of rs. 2,000/-, with default sentence of three months.6. mr. s. k. mohanty, learned counsel appearing for the accused-appellants submitted that the prosecution version had many gaping holes which rendered it improbable. the main plank of his argument was that the samples from seized articles allegedly collected were not sealed as is evident from the evidence of witnesses and as rightly observed by the learned trial judge. according to him, after having come to the conclusion that there was no proper sealing, the learned trial judge should not have treated that lightly and directed conviction. mr. n. prusty, learned counsel appearing for the state on the other hand submitted that section 55 of the act is directory in nature and not mandatory, and even if there was doubt relating to manner of sealing, that has caused no prejudice to the accused and they have been rightly convicted.7. following conclusion of the learned trial judge is really relevant:'............thus, there is no legal evidence on record regarding sealing of sample ganja kept in a separate packet, xxx xxx therefore, it must be held that m. os. ii to xxxviii (ganja packets) and the sample packets of ganja were not sealed at all after seizure vide seizure lists exts. 1 and 2 respectively in contravention of the provisions made in section 55 of the n. d. p.s. act.'this being the finding, untrammelled by the controversy whether section 55 is directory or mandatory, there is reason to hold that the evidence adduced is wholly insufficient to conclude that what was seized from the accused alone was sent to the chemical examiner. though this is purely a question of fact, it has an important link. the articles seized appear to have not been kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the chemical examiner. the fact situation is almost similar to that in valsala v. state of kerala : air 1994 sc 117. trafficking in narcotic drugs is a menace to the society, but in the absence of satisfactory proof it would be hazardous to convict a person. in laxmidhar mohapatra v. state of orissa : 1994 (i) olr 90 if was observed that if a vital and decisive link is missing regarding safe custody of the seized article, it has to be held that the prosecution has failed to establish that the seized article was the very same article which was sent for chemical examination. in that view of the matter, the appellants are entitled to the benefit of doubt.8. in the result, the appeals are allowed and the judgment of conviction and sentence passed by the learned additional sessions judge, jeypore in respect of each of the appellants in sessions case no. 86 of 1992 (s.c. no. 206 of 1992 of sessions judge, jeypore) is set aside. if any or both of them are in jail, he or they be set at liberty forthwith, unless he or they are required to be in custody in connection with any other case.
Judgment:A. Pasayat, J.
1. These two appeals are interlined being directed against the Judgment of conviction and sentence passed by the learned Additional Sessions Judge, Jeypore in S.C. No. 86 of 1992. Bhagaban Swain (appellant in Crl. A. No. 333 of 1993) and Bishnu Harpal (appellant in Jail Crl. A. No.344 of 1993), hereinafter referred to as the 'accused', by name faced trial on the accusation of having committed an offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') for allegedly possessing and transporting 1.25 quintals of ganja.
2. Sans unnecessary details, prosecution case as unfolded during trial is as follows :
On the early hours of 15-6-1992, Shri S.C. Mallik (PW 4), Officer-in-charge of Chitrakonda Police Station while performing patrol duty along with Sub-Inspector Shri N. C. Barik (PW 1) and other constables found a car bearing registration No. ATV 1260 coming from Sileru side. On suspicion, PW 4 detained the said car on Sileru-Chitrakonda road near Chitrakonda Guest House. The accused persons were found to be sitting in the vehicle with some ganja packets. On demand by PW 4, they could not produce any permit or licence for possessing and transporting the ganja in the said vehicle. Witnesses were called, and in presence of Tahasildar. Chitrakonda (PW 5) the alleged contraband Articles 37packets containing 1.25 quintals of ganja were recovered from the car. The ganja packets were seized, the car, cash and knife were also seized, and a seizure list was prepared, plain paper FIR was drawn, and a case was registered Under Chitrakonda Police Station. The accused persons were forwarded to the Court along with the seized ganja packets and samples were collected from the seized ganja. On completion of investigation charge-sheet was placed and the accused persons faced trial.
3. The accused persons denied their complicity with the offence in question.
4. In order to further its case prosecution examined five witnesses. Two witnesses were examined by accused Bhagaban in support of his plea that he had come to the house of his brother at Chitrakonda. On 15-6-1992 while he was waiting at Chitrakonda to catch a bus, he was apprehended by the Police when he went to a nearby place on seeing a gathering.
5. On evaluation of materials and the evidence on record, the learned trial Judge found the accused persons guilty, convicted and sentenced each one of them to undergo rigorous imprisonment for four years, and to pay a fine of Rs. 2,000/-, with default sentence of three months.
6. Mr. S. K. Mohanty, learned counsel appearing for the accused-appellants submitted that the prosecution version had many gaping holes which rendered it improbable. The main plank of his argument was that the samples from seized articles allegedly collected were not sealed as is evident from the evidence of witnesses and as rightly observed by the learned trial Judge. According to him, after having come to the conclusion that there was no proper sealing, the learned trial Judge should not have treated that lightly and directed conviction. Mr. N. Prusty, learned counsel appearing for the State on the other hand submitted that Section 55 of the Act is directory in nature and not mandatory, and even if there was doubt relating to manner of sealing, that has caused no prejudice to the accused and they have been rightly convicted.
7. Following conclusion of the learned trial Judge is really relevant:
'............Thus, there is no legal evidence on record regarding sealing of sample ganja kept in a separate packet, xxx xxx Therefore, it must be held that M. Os. II to XXXVIII (ganja packets) and the sample packets of ganja were not sealed at all after seizure vide seizure lists Exts. 1 and 2 respectively in contravention of the provisions made in Section 55 of the N. D. P.S. Act.'
This being the finding, untrammelled by the controversy whether Section 55 is directory or mandatory, there is reason to hold that the evidence adduced is wholly insufficient to conclude that what was seized from the accused alone was sent to the chemical examiner. Though this is purely a question of fact, it has an important link. The articles seized appear to have not been kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the Chemical Examiner. The fact situation is almost similar to that in Valsala v. State of Kerala : AIR 1994 SC 117. Trafficking in narcotic drugs is a menace to the society, but in the absence of satisfactory proof it would be hazardous to convict a person. In Laxmidhar Mohapatra v. State of Orissa : 1994 (I) OLR 90 if was observed that if a vital and decisive link is missing regarding safe custody of the seized article, it has to be held that the prosecution has failed to establish that the seized article was the very same article which was sent for chemical examination. In that view of the matter, the appellants are entitled to the benefit of doubt.
8. In the result, the appeals are allowed and the Judgment of conviction and sentence passed by the learned Additional Sessions Judge, Jeypore in respect of each of the appellants in Sessions Case No. 86 of 1992 (S.C. No. 206 of 1992 of Sessions Judge, Jeypore) is set aside. If any or both of them are in jail, he or they be set at liberty forthwith, unless he or they are required to be in custody in connection with any other case.