of Orissa Vs. Rajendra Tripathy & Ors
 Insc 382 (6 May
Raju & Arijit Pasayat. Arijit Pasayat, J.
respondents faced trial for alleged commission of offences punishable under
Sections 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(in short the 'Act') for alleged illegal possession of heroin. The trial court
found the respondents guilty and sentenced each to undergo rigorous
imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- each and in default
to undergo rigorous imprisonment for two years. By the impugned judgment the
High Court set aside the conviction and consequential sentence holding that the
accusations have not been established.
prosecution version in a nutshell is as follows:
6.8.1992 the then Sub-Inspector of Excise of Cuttack Sadar was patrolling with
his staff at Balikuda and Kazipatna area under Cuttack Sadar Police Station.
patrolling he found accused Deba Prasad Barik who was proceeding towards Balikuda
and Gopalpur near the other side of the Level crossing of Balikuda railway
station. His movement was found to be suspicious. So the S.I. of Excise (P.W.5)
along with his staff proceeded in a vehicle and detained him. P.W.5 in presence
of the witnesses who were available at the spot, disclosed his identity and his
intention to search accused Deba as he was suspected to have contraband
articles in his possession. Thereafter P.W.5 gave option to him as to whether
he wanted to go to a Magistrate or a Gazetted Officer for taking his personal
search or he had no objection to be searched by him (P.W.5). As the accused Deba
had no objection to be searched by P.W. 5, his personal search was taken in
presence of the witnesses after observing all requisite formalities. During search,
one polythin white coloured jari packet containing some powder was recovered
from his right side pant pocket. P.W. 5 suspected the powder to be heroin. So
he took 10 ml. of powder from the seized article and tested the same by means
of Drug Testing kit which was carried with him. From the initial test as the colour
of the powder turned to rose and thereafter violet and after doing some other
chemical tests and from his service experience, he suspected the powder to be
heroin. As possession of heroin powder was unlawful, the jari packet (M.O.I.)
was seized in presence of witnesses. Thereafter it was kept in an envelop with
identification mark as 'A'.
envelop was sealed in presence of the witnesses by the personal seal of P.W.5
and by paper seal bearing the signature of the witnesses as well as of the
accused. The same was seized under a seizure list in the presence of the
witnesses also. A copy of the seizure list was handed over to accused Deba, who
interrogation of accused Deba, he disclosed the names of other accused Sitaram Tripathy
of Balikuda to have supplied heroin to him. So P.W.5 immediately proceeded with
accused Deba towards the village Balikuda in search of accused Sitaram Tripathy
along with his staff. They reached near the rented house of accused Rajendra Tripathy
who is the son of accused Sitaram Tripathy on the road close to the house. At
the sight of the Excise staff, accused Rajendra started running towards his
house, but he was chased and was apprehended in front of his house where the
other accused Sitaram was also standing. The witnesses who had attested the
search, seizure for accused Deba also came there. P.W.5 again disclosed his
identity and intention to both accused Rajendra and Sitaram that they are suspected
to be possessing contraband articles and asked them whether they wanted to be
searched before a Gazetted Officer or a Magistrate or they had no objection if
their personal search is taken by P.W.5 himself. Both accused Rajendra and Sitaram
did not choose to go to the Magistrate or Gazetted Officer and consented for
their personal search by P.W.5.
P.W.5 in presence of the witnesses, after observing all formalities of search,
took the personal search of both accused Sitaram and Rajendra. During search
one jari packet containing some powder was recovered from the right side pant
pocket of accused Rajendra which he was wearing. On weighment it came to 5
grams. P.W.5 marked the said jari packet with identification mark as 'B'.
Thereafter during personal search of accused Sitaram similarly one jari packet
containing some powder was recovered from his right side pant pocket and after weighment
it was found to be 11 grams. The said packets was marked with the
identification marks as 'C'. P.W. 5 conducted similar tests which was conducted
earlier in case of accused Deba, by taking 10 ml. from each packets and after
tests he was confirmed that the contents of the jari packets i.e. powder was
heroin. Both the jari packets were seized in presence of the witnesses and
seizure list was prepared and the packets were seized by means of brass and
paper seal. The house of the accused Sitaram was also searched and only one
Balance scale was recovered and no contraband articles were found in the house.
The Balance scale was also seized and thereafter both the accused persons Sitaram
and Rajendra were arrested and forwarded to Court on 7.8.1992 along with other
accused Deba. On that day a prayer was made to the Court for sending the seized
articles for chemical analysis. As the Court was hard pressed for time and
holidays intervened, the Court directed P.W.5 to preserve the seized articles
in safe custody and he (P.W.5) as per the direction of his superior officer
kept the same in safe custody in his office and thereafter by the order of the
Court, it was sent for chemical analysis and it was subsequently confirmed that
the contents of the jari packets were heroin. The accused persons were
prosecuted for having committed an offence punishable under Section 21 of the
Act for unlawful possession of heroin.
accused Sitaram took the plea that because he was an Inspector of Police and
had taken objection to the unlawful dealing of illicit distilled liquor in the
area under the control of main official witness, the investigating officer of
the case i.e. P.W.5, he was falsely implicated. He was forcefully dragged from
the house, put in a vehicle and when his son, accused Rajendra who is a college
student protested, he was also forcibly taken to the vehicle. The other accused
Deba took the plea that he had gone to the level crossing side to attend call
of nature and while he was returning he was detained by P.W. 5 who wanted him
to be a witness in the case against other two persons. Since he refused he was
falsely implicated. To substantiate the accusations, six witnesses were
examined by the prosecution in support of its case. P.W. 1 was the Assistant
Sub-Inspector of Excise who was accompanied with P.W.5 who was the detaining
officer. The accused persons examined three witnesses to substantiate their
plea of innocence. The trial court found the evidence of P.Ws. 1 and 5 to be
credible and held that the plea of accused persons regarding non-compliance of
the provisions of Sections 41, 42 and 50 of the Act were without substance. It
was held that there was compliance of the requirements in law. In appeal, the
High Court observed that the alleged non-compliance of Sections 41,42 and 50
were really of no consequence, as the accused persons were entitled to
acquittal because of two factors; firstly, there was correction in the search
memo regarding the name of the persons from whose custody the contraband
articles were found and secondly regarding the custody of these articles after
the name of one Kasinath Tripathy was written which was subsequently corrected
to be Sitaram Tripathy.
though the seizure was purportedly made on 7.8.1992, till 10.8.1992 the samples
of contraband articles had not been collected. It was not established that the
articles were in safe custody during the intervening period. The order sheet of
the concerned Court does not show that the seized articles were actually
produced. With the aforesaid observation the conviction and consequential
sentence was set aside as noted above.
support of the appeal, learned counsel for the appellant-State submitted that
after having found that the alleged contravention of provisions contained in
Sections 42 and 50 were really of no consequence and in view of categorical
finding that there was no contravention the High Court should not have
interfered with the relevant conviction on untenable grounds.
had clearly indicated as to why the name of Sitaram was required to be
substituted in place of Kasinath Tripathy as was originally written. Further
the evidence on record clearly shows that the contraband articles were produced
before the Court alongwith the remand application. Forwarding report clearly
indicates that the seized articles were produced along with accused persons.
P.W. 5 had also categorically stated that the articles were kept in the safe
custody in the control room. The samples were drawn according to the directions
of the concerned magistrate. That being so the conclusions of the High Court
are clearly unsustainable.
learned counsel for the respondent Nos. 1 and 2 submitted that the High Court
has analysed the factual position and found that the documents were manipulated
and there was no proper explanation regarding the custody of the articles
between 7.8.1992 till 10.8.1992. That being so, the conclusions of the High
court cannot be faulted.
was no appearance on behalf of the respondent No. 3 though he was represented
by counsel in this Court.
to be noticed that before the trial Court and the High Court the stand was
taken by the accused persons alleging non-compliance of Sections 42 and 50 of
the Act. The same was given up by the respondents in this appeal and in our
view rightly. Considering the time when search and seizure was done, and the undisputed
position that the detection was made while the officers were on patrolling
duty, Section 42 has no application. Additionally the evidence of PWs. 1 &
5 clearly shows that the accused persons were given the liberty to be searched
in the presence of the prescribed officer and they did not choose to be
searched by any person other than P.W.5. Therefore the plea related to
non-compliance of Section 50 as raised during trial and before the High Court
in addition to the concession, plea regarding non-applicability of Sections 42
and 50 of the Act is also without any substance. The residual question is
regarding custody of the contraband articles and corrections in seizure memo.
The evidence on record clearly shows that the forwarding report clearly indicated
that the articles were being produced before the Magistrate. The order sheet of
the Magistrate shows that because he was busy he directed that the articles
should be produced on 10.8.1992 for the purpose of collecting samples.
portion of the order reads as follows:
is seen that the Investigating officer prays in his forwarding report to draw
the sample and to send the same for chemical examination. No time today.
put up on 10.8.1992 for the purpose.
Investigating Officer is directed to come ready for drawing of the sample and
for sending the same to F.S.L., Bhubaneswar, for chemical examination."
The High Court seems to have proceeded on the basis that there is nothing in
the order to show that the articles were really produced. The conclusion
appears to have been arrived at without proper reading the order. In the order
itself it has been clearly mentioned that in the forwarding report the
investigating officer had requested to draw the sample for the same being sent
for chemical examination. The Court nowhere records that the articles were not
produced and therefore samples could not be drawn. On the other hand due to
paucity of time, the Court itself adjourned the matter and directed the case
was to be taken up on 10.8.1992 for the purpose of drawing samples. The
evidence of P.W.5 also shows that the articles were kept in the safe custody in
the office of the Excise Department under lock and key till 10.8.1992.
was even no suggestion given to P.W.5 that the articles were not kept in safe
or proper custody. That being so, the decision of the High Court doubting the
safe custody is clearly unsustainable. In almost similar factual backdrop, this
Court had held the High Court's view to be untenable. (See State of Orissa v. Kanduri Sahoo (2004 (1) SCC
other factor which has weighed with the High Court is that there was correction
of name in the seizure memo. P.Ws. 1 & 5 have clarified this aspect.
been categorically stated that initially the name given by accused no. 3 was Kasinath
Tripathy. But on persistent questioning, it was subsequently stated that the
real name was Sitaram Tripathy. That being so, the necessity for the correction
has been clearly explained.
trial court accepted this explanation. But the High Court without any
justifiable reason disbelieved the explanation offered by the witnesses
regarding correction of name.
factors which have weighed with the High Court for directing acquittal do not
have any supportable basis. Inevitable conclusion is that the prosecution has
established the accusation against the respondents, and the trial court had
rightly convicted them. The High Court's judgment reversing the conviction is
appeals are allowed. The judgment of the High Court is set aside and that of
the lower Court is restored. The bail bonds of the respondents-accused persons
shall stand cancelled and they are directed to surrender to custody forthwith
to serve remainder of sentences as imposed by the trial court.