Raghu Sahu Alias Raghu Nath Sahoo Vs. State - Court Judgment

SooperKanoon Citationsooperkanoon.com/534529
SubjectCriminal
CourtOrissa High Court
Decided OnSep-19-1996
Case NumberCriminal Appeal No. 43 of 1994
JudgeDipak Misra, J.
Reported in1997(1)ALT(Cri)21; 83(1997)CLT373; 1996(II)OLR607
ActsNarcotic Drugs and Psychotropic Substances Act, 1985- Sections 50
AppellantRaghu Sahu Alias Raghu Nath Sahoo
RespondentState
Appellant AdvocateGaneswar Rath, Adv.
Respondent AdvocateN. Prusty, Addl. Govt. Adv.
DispositionAppeal allowed
Cases ReferredSurendranath Mohanty 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. - the court expressed thus :compliance of section 50(1) of the ndps act being mandatory, he could not have failed to mention such any important aspect in the report which was filed four months after the search.dipak misra, j.1. the appellant has been convicted under section 18 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter referred to as 'the act') for being in unlawful possession of 2 kgs. of opium without any authority in contravention of the-provision of section 8 of the act, he has been sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of rs. 1,00,000/- in default, further rigorous imprisonment for 2 years more.2. briefly stated the prosecution case is that on 21-12-1992 kishore chandra panda, inspector of excise, eib, berhampur (pw 2) during his visit to aska was intimated by laxmidhar das, asi of excise, eib, aska (pw i) regarding transportation of opium by the appellant. the said inspector alongwith the asi and other staff proceeded and near jhagadei-cave spotted the accused waiting beside the road to avail bus holding a jerry beg in his hand. pw 2 disclosed his identify and searched the jerry bag held by the appellant in presence of witnesses after observing the formalities of search and found the bag contained 2 kgs. of opium. he prepared the seizure list, took sample packets of opium, recorded the statement of the witnesses and forwarded the accused to the judicial magistrate, first class, aska on the said date. after making necessary investigation prosecution report was submitted against the appellant and ultimately the judgment of conviction has been passed.3. the plea of the appellant was one of complete denial. while advancing the plea of complete denial the appellant had also stated that on the, alleged date of occurrence at about 10 a. m. he was brought by the asi from the spot form the tea stall where he was taking his tea and a bag was kept underneath the bench where he was sitting. later on in the evening the inspector came from berhampur and he was booked under the alleged offence.4. in order to prove its case the prosecution examined 4 witnesses on its behalf. pw 1 is the asi of excise, eib, aska : pw 2 is the inspector of excise, eib, berhampur, who conducted the search and seizure ; pws 3 and 4 are the seizure witnesses who did not support the case of the prosecution and were declared hostile and cross-examined under section 154 of the evidence act. chemical examination report, seizure list and number of documents were brought on record to bring home the charges. the sample packets. jerry bag and metal sheets were also produced as m. os, repelling the submissions of the defence in regard to impropriety and procedural irregularity in search and seizure the missing link between the time of the seizure and forwarding of articles for chemical examination and the receipt thereof the factum of non-corroboration of seizure by independent witnesses; non-intimation of the factum of seizure to the higher authorities as contemplated under the act, the learned trial judge found the appellant guilty and sentenced him as indicated above.5. shri ganeswar rath, learned counsel for the appellant has contended that there has been non-compliance of the mandatory provisions enjoined under section 50(1) of the act and that alone vitiates the entire trial. his further submission is that there has been no proper proof in regard to intimation of search and seizure to his immediate officer and such non-intimation goes to the very root of the proceeding. he has also strenuously urged that the only two sample packets of 50 cms. each were taken as samples for chemical examination which is against the prescript of law. apart from this submission, mr. rath has also canvassed with regard to the competency of pw 2 to investigate into the matter.6. refuting the submissions of shri rath, shri n. prusty, learned addl. government advocate has supported the judgment of the learned trial judge. he has contended that pws 3 and 4 have turned hostile, but they have put their signature to the seizure list and their evidence having been considered in proper perspective keeping in view the unimpeachable evidence of pws 1 and 2 the trial court has not found any fault with search and seizure and the said finding being based on proper appreciation of evidence does not call for interference by this court. with regard to non-compliance of; mandatory requirement of section 50 of the act, the submission of mr. prusty is that the investigating officer has stated in categorical terms that he had apprised the appellant in regard to his right to be searched in presence of a gazetted officer. but as the accused person refused to avail the privilege/opportunity, it is to be deemed that there is due compliance of the aforesaid requirement. in regard to intimation to the higher authorities it has been canvassed by mr. prusty that pw 2 immediately after search and seizure reported the matter to his higher authorities vide ext. 9 and there is no reason to disbelieve the same. he has also placed; reliance on the chemical report which establishes beyond doubt that the seized articles is opium. with the aforesaid submissions mr. prusty has urged with vehemence for dismissal of the appeal.7. it is apparent from the prosecution case that on receipt of the information from the asi (pw 1) with regard to illegal transportation of opium by the appellant, the excise inspector proceeded to the spot with pw 1 and two constables. in view of the prior knowledge of the investigating agency the ratio of the decision in the case of state of punjab v. balbir singh : jt (1994 (1) sc 108 : (1994) 7 ocr sc 283 in regard to the applicability of section 50 of the act cannot be disputed. the apex court in paragraph-22 of the judgment held as follows : 'therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that he so chooses he will be searched in presence of a gazetted officer or a magistrate.'8. now it is to be seen whether this provision has been complied with or not. in this regard, it is worthwhile to refer to the evidence of pw 2, the inspector of eib, berhampur who in his cross-examination stated that he has not mentioned in the seizure list that he had pressed the accused with regard to his right to be searched in presence of a gazetted officer. he has also not stated that there is any other contemporaneous documents which could indicate to the said effect. there is no material on record from which it can be inferred that the accused had in fact waived his right except a bald statement by the said witness that he actually asked the accused whether he was desirous of being searched before a gazetted officer. . in absence of any entry anywhere or writing in any contemporaneous document it is difficult to accept the oral statement during trial. in absence of any contemporaneous entries in any of the documents it is difficult to accept that the accused-appellant was given the offer of search in presence of a gazetted officer. if pw 2 had really asked the appellant by indicating the officer that normally should have found place in the seizure list or in the forwarding report or in the case diary but such fact has not been brought in the evidence though a foundation has been laid in the cross-examination by the appellant. in a recent case, the apex court which dealing with an order of acquittal under this act held in the case of state of punjab v. jasbir singh reported in jt 1995 (9) sc 308 as follows : 'protection given by this section is available right to the offender and compliance thereto intended to be mandatory, in case the police officer had prior knowledge that illegal transport of the contraband is a movement and persons are in unlawful possession and intend to intercept it conduct, search and consequentially to seize the contraband, they are required to inform the offender that he has right that search will be conducted in presence of a gazetted officer or a magistrate. therefore, on their agreeing to be searched by the police officers, the search and seizure of the contraband from their unlawful possession would become illegal and violative.' in another case in state of punjab v. labh singh reported in (1996) 11 ocr sc 294 the apex court after referring to the case of jasbir (supra) reiterated as follows :'the question was considered in state of funjab v. belbir singh jt 1994 (1) sc 427 : 1994 (3) scc 299 . subsequently, another bench of this court in state of punjab v. jasbir singh [jt 1995 (9) sc 308 : 1996 (1) scc 288] has pointed out that it would be open to the search officer to inform the suspect at the time of search, that he is entitled to be searched in the presence of a gazetted officer and also to take in writing from the accused that he has been so informed and that the accused has waived that right. thus it would form part of the record as contemporaneous evidence. thereafter, it may not be open to the accused to take the plea of non-compliance of section 50, it would be for the court to consider, at the trial, whether the officer who conducted the search, had, as a fact, informed the accused of that right and whether the accused had waived that right of being searched only in the presence of a gazetted officer. this court held that: 'the matter of appreciation of evidence and the totality of the facts and circumstances have to be considered by the trial court on the facts in that case, it was held that since the additional sessions judge was not inclined to accept the prosecution casein the absence of anything in writing, this court confirmed the acquittal.' '......the court has to, consider each case on its own setting.in view ' of ..,.. the. absence of any writing from the accused to the effect that the accused was informed of his right and that the same was. waived taken by the officer who conducted the search and seized the contraband, and in view of the long delay that has taken place, we think that these may not be cases warranting interference with the order of. acquittal at this distance of time.'recently, this court in the case of surendranath mohanty v. state of orissa, (1996) 11 ocr 130 emphasising on the non-compliance of the mandatory provision of section 50(1) of the act held that the empowered officer is obliged to inform the person of his right if he so requires to be searched, before, the nearest gazetted officer or nearest magistrate. in the said case it was brought on oral evidence that the accused was informed of his right. the said fact was not mentioned in the forwarding report. the court expressed thus :'compliance of section 50(1) of the ndps act being mandatory, he could not have failed to mention such any important aspect in the report which was filed four months after the search. in view of what has been stated above, i am not inclined to accept the uncorroborated statement of pw 6 that he asked the appellants prasanna kumar and tara prasad if they wanted to be searched before the nearest gazetted officer or the nearest magistrate. there is thus non-compliance of the mandatory provision of section 50(1) of the ndps act which has affected the prosecution case.'9. in the case in hand except a bald statement in court during trial nothing has been brought on record that the accused was made aware of his right. on scrutiny of the evidence on record and other materials including the seizure list, forwarding report and the case diary i do not find any contemporaneous document to show that an offer was made to the accused to exercise his right and he waived his right by denial. in absence of the same, the irresistible conclusion is that there has been non-compliance of the aforesaid mandatory provision;10. the submission with regard to the report to the higher authorities, has no force. i find the same was intimated by annexure-9 and was duly received by the concerned junior clerk and there is endorsement vide ext. 9/2. there is no reason to disbelieve this clinching evidence,. the facts being such i am of the considered view that the submission of mr. rath in this regard has no merit. 11. the last submission of the learned counsel for the appellant relates to despatch of sample packets for chemical examination. there are materials on record to indicate that two packets were taken from the jerry bag. it is not a case where many packets were seized and only two were sent. sample being taken from the bag in question and formalities having been complied with in accordance with law i am not persuaded to accept the submission of the learned counsel for the appellant. 12. as i have already held that there is non-compliance of the provision of section 50(1) of the act and the same being mandatory, the conviction and sentence of the appellant cannot be sustained in law which are hereby set aside. as a consequence the appellant is acquitted of the charge. he is to be set at liberty forthwith if his detention is not required in connection with any other case.13. the criminal appeal is accordingly allowed.
Judgment:

Dipak Misra, J.

1. The appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') for being in unlawful possession of 2 Kgs. of opium without any authority in contravention of the-provision of Section 8 of the Act, He has been sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/- in default, further rigorous imprisonment for 2 years more.

2. Briefly stated the prosecution case is that on 21-12-1992 Kishore Chandra Panda, Inspector of Excise, EIB, Berhampur (PW 2) during his visit to Aska was intimated by Laxmidhar Das, ASI of Excise, EIB, Aska (PW I) regarding transportation of opium by the appellant. The said Inspector alongwith the ASI and other staff proceeded and near Jhagadei-cave spotted the accused waiting beside the road to avail bus holding a jerry beg in his hand. PW 2 disclosed his identify and searched the jerry bag held by the appellant in presence of witnesses after observing the formalities of search and found the bag contained 2 Kgs. of opium. He prepared the seizure list, took sample packets of opium, recorded the statement of the witnesses and forwarded the accused to the Judicial Magistrate, First Class, Aska on the said date. After making necessary investigation prosecution report was submitted against the appellant and ultimately the judgment of conviction has been passed.

3. The plea of the appellant was one of complete denial. While advancing the plea of complete denial the appellant had also stated that on the, alleged date of occurrence at about 10 a. m. he was brought by the ASI from the spot form the tea stall where he was taking his tea and a bag was kept underneath the bench where he was sitting. Later on in the evening the Inspector came from Berhampur and he was booked under the alleged offence.

4. In order to prove its case the prosecution examined 4 witnesses on its behalf. PW 1 is the ASI of Excise, EIB, Aska : PW 2 is the Inspector of Excise, EIB, Berhampur, who conducted the search and seizure ; PWs 3 and 4 are the seizure witnesses who did not support the case of the prosecution and were declared hostile and cross-examined under Section 154 of the Evidence Act. Chemical examination report, seizure list and number of documents were brought on record to bring home the charges. The sample packets. jerry bag and metal sheets were also produced as M. Os, Repelling the submissions of the defence in regard to impropriety and procedural irregularity in search and seizure the missing link between the time of the seizure and forwarding of articles for chemical examination and the receipt thereof the factum of non-corroboration of seizure by independent witnesses; non-intimation of the factum of seizure to the higher authorities as contemplated under the Act, the learned trial Judge found the appellant guilty and sentenced him as indicated above.

5. Shri Ganeswar Rath, learned counsel for the appellant has contended that there has been non-compliance of the mandatory provisions enjoined under Section 50(1) of the Act and that alone vitiates the entire trial. His further submission is that there has been no proper proof in regard to intimation of search and seizure to his immediate officer and such non-intimation goes to the very root of the proceeding. He has also strenuously urged that the only two sample packets of 50 cms. each were taken as samples for chemical examination which is against the prescript of law. Apart from this submission, Mr. Rath has also canvassed with regard to the competency of PW 2 to investigate into the matter.

6. Refuting the submissions of Shri Rath, Shri N. Prusty, learned Addl. Government Advocate has supported the judgment of the learned trial Judge. He has contended that PWs 3 and 4 have turned hostile, but they have put their signature to the seizure list and their evidence having been considered in proper perspective keeping in view the unimpeachable evidence of PWs 1 and 2 the trial Court has not found any fault with search and seizure and the said finding being based on proper appreciation of evidence does not call for interference by this Court. With regard to non-compliance of; mandatory requirement of Section 50 of the Act, the submission of Mr. Prusty is that the Investigating Officer has stated in categorical terms that he had apprised the appellant in regard to his right to be searched in presence of a Gazetted Officer. But as the accused person refused to avail the privilege/opportunity, it is to be deemed that there is due compliance of the aforesaid requirement. In regard to intimation to the higher authorities it has been canvassed by Mr. Prusty that PW 2 immediately after search and seizure reported the matter to his higher authorities vide Ext. 9 and there is no reason to disbelieve the same. He has also placed; reliance on the chemical report which establishes beyond doubt that the seized articles is opium. With the aforesaid submissions Mr. Prusty has urged with vehemence for dismissal of the appeal.

7. It is apparent from the prosecution case that on receipt of the information from the ASI (PW 1) with regard to illegal transportation of opium by the appellant, the Excise Inspector proceeded to the spot with PW 1 and two constables. In view of the prior knowledge of the Investigating Agency the ratio of the decision in the case of State of Punjab v. Balbir Singh : JT (1994 (1) SC 108 : (1994) 7 OCR SC 283 in regard to the applicability of Section 50 of the Act cannot be disputed. The apex Court in paragraph-22 of the judgment held as follows :

'Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that he so chooses he will be searched in presence of a Gazetted Officer or a Magistrate.'

8. Now it is to be seen whether this provision has been complied with or not. In this regard, it is worthwhile to refer to the evidence of PW 2, the Inspector of EIB, Berhampur who in his cross-examination stated that he has not mentioned in the seizure list that he had pressed the accused with regard to his right to be searched in presence of a Gazetted Officer. He has also not stated that there is any other contemporaneous documents which could indicate to the said effect. There is no material on record from which it can be inferred that the accused had in fact waived his right except a bald statement by the said witness that he actually asked the accused whether he was desirous of being searched before a Gazetted Officer. . In absence of any entry anywhere or writing in any contemporaneous document it is difficult to accept the oral statement during trial. In absence of any contemporaneous entries in any of the documents it is difficult to accept that the accused-appellant was given the offer of search in presence of a Gazetted Officer. If PW 2 had really asked the appellant by indicating the officer that normally should have found place in the seizure list or in the forwarding report or in the case diary but such fact has not been brought in the evidence though a foundation has been laid in the cross-examination by the appellant. In a recent case, the apex Court which dealing with an order of acquittal under this Act held in the case of State of Punjab v. Jasbir Singh reported in JT 1995 (9) SC 308 as follows :

'Protection given by this section is available right to the offender and compliance thereto intended to be mandatory, in case the Police Officer had prior knowledge that illegal transport of the contraband is a movement and persons are in unlawful possession and intend to intercept it conduct, search and consequentially to seize the contraband, they are required to inform the offender that he has right that search will be conducted in presence of a Gazetted Officer or a Magistrate. Therefore, on their agreeing to be searched by the Police Officers, the search and seizure of the contraband from their unlawful possession would become illegal and violative.'

In another case in State of Punjab v. Labh Singh reported in (1996) 11 OCR SC 294 the apex Court after referring to the case of Jasbir (supra) reiterated as follows :

'The question was considered in State of Funjab v. Belbir Singh JT 1994 (1) SC 427 : 1994 (3) SCC 299 . Subsequently, another Bench of this Court in State of Punjab v. Jasbir Singh [JT 1995 (9) SC 308 : 1996 (1) SCC 288] has pointed out that it would be open to the search officer to inform the suspect at the time of search, that he is entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been so informed and that the accused has waived that right. Thus it would form part of the record as contemporaneous evidence. Thereafter, it may not be open to the accused to take the plea of non-compliance of Section 50, It would be for the Court to consider, at the trial, whether the officer who conducted the search, had, as a fact, informed the accused of that right and whether the accused had waived that right of being searched only in the presence of a Gazetted Officer. This Court held that: 'The matter of appreciation of evidence and the totality of the facts and circumstances have to be considered by the trial Court On the facts in that case, it was held that since the Additional Sessions Judge was not inclined to accept the prosecution casein the absence of anything in writing, this Court confirmed the acquittal.'

'......The Court has to, consider each case on its own setting.In view ' of ..,.. the. absence of any writing from the accused to the effect that the accused was informed of his right and that the same was. waived taken by the officer who conducted the search and seized the contraband, and in view of the long delay that has taken place, we think that these may not be cases warranting interference with the order of. acquittal at this distance of time.'

Recently, this Court in the case of Surendranath Mohanty v. State of Orissa, (1996) 11 OCR 130 emphasising on the non-compliance Of the mandatory provision of Section 50(1) of the Act held that the empowered officer is obliged to inform the person of his right if he so requires to be searched, before, the nearest Gazetted Officer or nearest Magistrate. In the said case it was brought on oral evidence that the accused was informed of his right. The said fact was not mentioned in the forwarding report. The Court expressed thus :

'Compliance of Section 50(1) of the NDPS Act being mandatory, he could not have failed to mention such any important aspect in the report which was filed four months after the search. In view of what has been stated above, I am not inclined to accept the uncorroborated statement of PW 6 that he asked the appellants Prasanna Kumar and Tara prasad if they wanted to be searched before the nearest Gazetted Officer or the nearest Magistrate. There is thus non-compliance of the mandatory provision of Section 50(1) of the NDPS Act which has affected the prosecution case.'

9. In the case in hand except a bald statement in Court during trial nothing has been brought on record that the accused was made aware of his right. On scrutiny of the evidence on record and other materials including the seizure list, forwarding report and the case diary I do not find any contemporaneous document to show that an offer was made to the accused to exercise his right and he waived his right by denial. In absence of the same, the irresistible conclusion is that there has been non-compliance of the aforesaid mandatory provision;

10. The submission with regard to the report to the higher authorities, has no force. I find the same was intimated by Annexure-9 and was duly received by the concerned junior clerk and there is endorsement vide Ext. 9/2. There is no reason to disbelieve this clinching evidence,. The facts being such I am of the considered view that the submission of Mr. Rath in this regard has no merit.

11. The last submission of the learned counsel for the appellant relates to despatch of sample packets for chemical examination. There are materials on record to indicate that two packets were taken from the jerry bag. It is not a case where many packets were seized and only two were sent. Sample being taken from the bag in question and formalities having been complied with in accordance with law I am not persuaded to accept the submission of the learned counsel for the appellant.

12. As I have already held that there is non-compliance of the provision of Section 50(1) of the Act and the same being mandatory, the conviction and sentence of the appellant cannot be sustained in law which are hereby set aside. As a consequence the appellant is acquitted of the charge. He is to be set at liberty forthwith if his detention is not required in connection with any other case.

13. The Criminal Appeal is accordingly allowed.