Sanatan Mallik Alias Sania Vs. State - Court Judgment

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. - act are mandatory in nature and the failure to comply with it would entail acquittal. the law is too well settled that the provisions of section 50 of the n. s act are mandatory and failure to comply with these provisions would be fatal to the prosecution.s.c. datta, j.1. in this appeal from jail the legality of order of conviction and sentence passed by the learned additional sessions judge, bhubaneswar, has been called in question.2. the accused sanathan mallik alias sania, stood charged under section 22 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter referred to as the 'n.d.p.s. act') for having in his possession 24 grams of brown sugar on 10-8-1992 on the road in front of panda narsing home in unit iii, bhubaneswar.3. the prosecution case, in short, is that on 10-8-1992, sri b.k. singh samant (p.w. 4). sub inspector of excise, bhubaneswar incharge of unit no. ii, was on patrol duty at about 12 a.m. along with his staff. while he was performing . patrol duty in unit no. 3 area, he received information regarding storage and sale of brown sugar by the accused sanatan alias sania mallik. on receipt of this information, he along with his staff proceeded to the place and detailed the accused who was standing in front of panda narsing home in unit no. 3. bhubaneswar. the sub inspector of excise (pw 4) called two witnesses and in their presence, searched the person of the accused after observing all usual formalities and recovered 24 grams of brown sugar from his possession. besides recovery of brown sugar, a sum of rs. 4,513/- representing sale proceeds of brown sugar was also recovered from his possession. the accused was forwarded to the magistrate and eventually on receipt of report of chemical examination of the sample, the accused faced trial before the learned additional sessions judge, bhubaneswar.4. the accused pleaded not guilty to the charge and claimed for trial.5. the prosecution examined five witnesses in all. of the witnesses, pw 2 and pw 5 are witnesses to the seizure of brown sugar and cash money from the possession of the accused but these two witnesses do not support the prosecution case. the other witnesses, viz., pws 1,3 and 4 are official witnesses.6. the defence has examined one witness. she is the wife of the accused. learned trial judge found that the accused was in conscious possession of 24 grams of brown sugar and that he had no authority or licence for possession of the same. accordingly, the trial judge found him guilty of the charge and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of rupees one lakh and in default of payment of fine to undergo rigorous imprisonment for a further period of one year.7. being aggrieved by and dissatisfied with the order of conviction and sentence, the accused has preferred this appeal from jail. the learned counsel appearing for the appellant has assailed the judgment of the trial court on the ground of non-compliance of the mandatory provisions of section 50 of the n.d.p.s. act. he submits that there is no evidence to show that the investigating officer (pw 4) had complied with the mandatory provisions of section 50 of the n.d.p.s. act. he submits also that the provisions of section 50 of the n.d.p.s. act are mandatory in nature and the failure to comply with it would entail acquittal.8. learned counsel for the appellant has taken me through the evidence of the investigating officer to show that at no stage, the investigation officer disclosed his identity to the accused or that the accused was told about his right to be searched either before a gazetted officer or before a nearest magistrate. the sub inspector of excise (pw 4) is one of the empowered officer of the excise department but on a scrutiny of his evidence, it does not reveal that he had told the accused about his right to be searched by a gazetted officer of the department or by a magistrate. it also does not appear that he had disclosed to the accused about his identity. it is in his evidence that he had given his search to the accused and then searched the person of the accused. it is not in his evidence that the accused had given his consent to be searched by him. it is evident, therefore, that there has been non-compliance of the mandatory provisions of section 50 of the n.d.p.s. act. the law is too well settled that the provisions of section 50 of the n.d.p.s act are mandatory and failure to comply with these provisions would be fatal to the prosecution. it appears that the trial judge did not consider these aspects of the matter, nor did anybody, point out this irregularity which goes to the root of the case, to him during trial. learned counsel appearing for the appellant also submits that there have been non-compliance of sub-section (2) of section 42 of the n.d.p.s. act. here again, there is no material on record to show that the investigating officer has complied with the provisions of sub-section (2) of section 42 of the n.d.p.s. act. in face of these irregularities, it is difficult to sustain the conviction. it seems that the trial judge has not considered all the relevant aspects of the matter. hence the order of conviction and sentence passed by the trial judge cannot be sustained.9. in the result, the appeal succeeds, the order of conviction and sentence is set aside. the accused be set at liberty forthwith, if not required in connection with any other cases.