Kanduri Sahoo Vs. State of Orissa - 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. - mohapatra the learned counsel for the appellant, has contended that the prosecution having failed to establish that the contraband article recovered from the possession of the appellant was the very same article, sent for chemical examination, the appellant cannot be found guilty for possession of the cannabis (ganja) in question. he has also stated that as he was busy, he could not produse the sample in the drug testing research laboratory bhubneswar, till 17-5-1994. the question that arises for consideration is whether the seized article was in safe custody. state of orissa :1994 (i) olr 80 :(1994)7 ocr 108, took note of the fact that there was no proper explanation in whose custody the seized articles ware kept during a gap of five days and observed as follows :it is for the prosecution to explain that the seized articles were in safe custody from 4-1-1990 till they were produced in court on 9-1-1990. there is absolutely no evidence in this regard. the same has not been done in the present case and there being no evidence, the irresistible conclusion is that the seized articles were not kept in safe custody.dipak misra, j. 1. the appellant stands convicted under section 20(b)(i) of the narcotic drugs and psychotropic substances act, 1985 (in short 'the act') and sentenced to undergo r. i. for five years and to pay a fine of rs. 6, 000/- in default of such payment, to undergo further rigorous imprisonment for six months.2. briefly stated the prosecution case is that at about 7 a. m. on 13-5-1994, the excise sub-inspector, mobile squad no. 1, cuttack, (pw 1) while patrolling with his a. s. i. and constables at gandhipalli area in cuttack city noticed the accused coming with a full gunny-bag being suspicious he retained the accused and searched. him in presence of panch witness (pw 2) he found that the gunny bag contained cannabis (ganja) which weighed 12 kgs. he took. sample of 50 grams which was sent for chemical examination. the chemical examination indicated that it was cannabis (ganja}. after completion of the investigation, the appellant was sent for trial to face charges which was ended in conviction and sentence has been passed as mentioned above.3. the appellant denied the charges in totality.4. in order to bring home the charges, the prosecution examined three witnesses. pw 1 is the excise sub-inspector, mobile squad no. 1, cuttack. pw 2 is a witness to the seizure, pw 3 is the a. s. i. who accompanied pw 1 on patrol duty. it is pertinent to state here that pw 2, the seizure witness, while admitting his signature ext. 1/1 on the seizure-list, has pleaded ignorance about the contents.5. considering the evidence of the prosecution witnesses, the trial judge held that the contraband articles in question were recovered and seized from the possession of the appellant and ho had no authority to possess the same. accordingly, he found the appellant guilty and sentenced him as aforesaid.6. sri s. r. mohapatra the learned counsel for the appellant, has contended that the prosecution having failed to establish that the contraband article recovered from the possession of the appellant was the very same article, sent for chemical examination, the appellant cannot be found guilty for possession of the cannabis (ganja) in question. sri mohapatra has also canvassed with vehemence, there has been non-compliance of section 55 of the act which vitiates the trial.7. sri n. prusty, the learned additional government advocate has strenuousl urged that there is ample material on record to establish the link in regard to the article which was seized and the contraband article which was sent for chemical examination, and in absence of any missing link, it cannot be concluded that the seized article was not sent for chemical examination. for this purpose, he has laid emphasis on the evidence of pw 2. he has also controverted the submission with regard to applicability of section 55 of the act in a case of the present nature.8. let me first deal with the contention whether the centra-band article which was seized form the appellant was the same which was sent for chemical examination. as per the forawarding report, the seized ganja and the sample thereof were produced i. the court. pw 1 has stated that as it was delayed he took back the seized gunny bag and sample as per the direction of the court and deposited in the official excise malkhana at cuttack. he has further stated on 17-5-1934, he sent the sample to the state drug testing research laboratory, bhubaneswar, for chemical examination. in cross-examination, he has indicated that he has entered in the case register that the seized article and sample were kept in excise malkhana till 16-5-1994 but the has not produced the said register in court. he has also stated that as he was busy, he could not produse the sample in the drug testing research laboratory bhubneswar, till 17-5-1994. the question that arises for consideration is whether the seized article was in safe custody. the plea that the sample and the seized bag were taken back by pw 1 as per the direction. of the learned sdjm. cuttack is not reflected in the order sheet dated 13-5-1994, as there is no direction of the aforesaid nature through it has been mentioned by the said witness that he has entered in the register that he had deposited in the excise malkhana, there is no proof of the same as the register has not been brought on record. he has admitted in paragraph 2 of the cross-examination that the saizure m.o.i. has been damaged. there is also no relevant entry in the case diary either on 1 3-5-1994 or on 14-5-1994 or thereafter till 16-5-1994 that the seized article was in official excise malkhana. in absence of any corroborative evidence, it is extremely difficult to believe the stand of the prosecution that the seized article was in excise malkhana for the interregnum period. in this regard, it is profitable to refer to the case of valsala v. state of kerala:(1993) 6 ocr 457, where the apex court was dealing with a case where there was no evidence to show that with whom the seized article was lying. the apex court observed as follows : 'suffice it to say that the article seized appears to have been not 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. there is a big gap and an important missing link.'in view of the aforesaid lacunae of the prosecution, the apex court set aside the order of conviction. this court in the case of laxmidhar mohapatra v. state of orissa : 1994 (i) olr 80 :(1994)7 ocr 108, took note of the fact that there was no proper explanation in whose custody the seized articles ware kept during a gap of five days and observed as follows :'......it is for the prosecution to explain that the seized articles were in safe custody from 4-1-1990 till they were produced in court on 9-1-1990. there is absolutely no evidence in this regard.............as indicated above, in the case at hand, there is no evidence as to in whose custody the seized articles were kept till they were produced before the sub-divisional judicial magistrate. it is for the prosecution to lead evidence and explain it.;....' in another case ajay kumar naik v. state of orissa, reported in 1994 (if) olr 70: (1994)7 ocr 445, the ratio in laxmidhar's case was followed.9. in the instant case, as i have already observed, there is no material to establish that the seized sample was kept in official excise malkhana. the onus, as held in the case of laxmidhar (supra), is on the prosecution and it has to satisfy by leading acceptable evidence. the same has not been done in the present case and there being no evidence, the irresistible conclusion is that the seized articles were not kept in safe custody. thus it is not ascertainable that what was seized only was sent to the chemical examiner. as a vital and decisive link is missing, it is difficult to hold that the article seized from the possession of the appellant was the very article which was sent for chemical examination. the appellant is, therefore, entitled to benefit of doubt. 10. in view of my preceding analysis, the conviction and sentence of the appellant are unsustainable and they are hereby set aside. he is acquitted of the charges. he is to be set at liberty forthwith if his detention is not required in connection with any other case. 11. resultantly, the appeal is allowed.