JUDGMENT
P.K. Patra, J.
1. The appellants have preferred this appeal against the order dated 1.12.1998 passed by Smt. M. Patnaik, Sessions Judge- cum-Special Judge, Khurda at Bhubaneswar convicting them Under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and sentencing them to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500.00 each, in default to undergo rigorous imprisonment for five months more in T.R.Case No. 7 of 1998.
2. Prosecution case briefly stated is as follows :
On 17.3.1998 at about 9.30 p.m., S.I. of Badagada Police Station (P.W.3) received reliable information from another S.I. of the said police station (P.W.2), who was performing duty at Siridi Sai Baba Chhak, as to illegal transportation of contraband Ganja in a motor-cycle. Receiving the said information from P.W.3, P.W.7 (I.I.C. of Badagada P.S.) reached there in a police jeep along with a woman constable (P.W. 1) at about 9.50 p.m. and waited there at the check-post. At about 10.05 p.m. one Yamaha motor-cycle bearing registration number OR-02G-0699 driven by appellant No. 1 with appellant No. 2 as the pillion rider, was stopped and checked. After interrogation the appellants gave their option to be searched by a gazetted police officer and hence intimation was sent to the Deputy Superintendent of Police, Bhubaneswar (P.W.4) who arrived there. P.Ws. 5, and 6, two independent witnesses who were passing by that road were called to witness the search and seizure effected on the spot. It is alleged that appellant No. 2 was holding a gunny bag with two packets of contraband Ganja each weighing 900 grams and another packet of contraband Ganja weighing 500 grams was found in the dicky of the motor-cycle. Being asked, the appellants could not produce any authority to carry Ganja and hence three samples each weighing 50 grams were drawn from the three packets and the three sample packets and the remaining quantity of Ganja in the three packets were separately sealed by putting paper slips with signatures of the witnesses and the police officers. The appellants were arrested since they were illegally transporting contraband Ganja and were taken to the police station along with the seized Ganja. At 10.55 p.m. a plain paper FIR (Ext. 10/2) was drawn up at the spot and sent to the police station which was received at 11.30 p.m. by P.W.3 who registered the case. P.W.7 (I.I.C. of the P.S.) himself took up investigation. On the next day the appellants were produced before the S,D.J.M., Bhubaneswar alongwith the seized Ganja and the sample packets and the sample packets were sent for chemical examination. The chemical examiner’s report revealed that the samples were found to be cannabis, as defined Under Section 2(iii)(b) of the Act. After completion of investigation, P.W.7 submitted charge-sheet against the appellants who stood their trial.
The defence plea is one of denial.
3. In order to bring home the charge, prosecution has examined seven P.Ws. in all. P.W.I is the woman constable in whose presence search and seizure were effected, P.W.2 is the S.I. of the Police Station who had been on duty at the spot, P.W.3 is another S.I. of Badagada P.S. who received information from P.W.2, P.W.4 is the Dy. S.P., P.Ws. 5 and 6 are two independent witnesses to the seizure and P.W.7 is the investigating officer. The defence has examined none.
4. Mr. Mohanty, learned counsel for the appellants, and Mr. Pradhan, learned Addl. Standing Counsel for the State, were heard at length. Mr. Mohanty contended that the conviction of the appellants cannot be sustained due to non-compliance of the mandatory provisions of Sections 42, 50 and 55 of the Act and hence the impugned judgment is liable to be set aside. Learned Addl. Standing Counsel supported the impugned judgment refuting the contention of the learned counsel for the appellants.
5. In the present case, the trial Court placed reliance on all the P.Ws. and has arrived at the conclusion that contraband Ganja was being transported by the appellants without any authority and that there was compliance of the provisions of Sections 42, 50 and 55 of the Act. Accordingly, she found the appellants guilty and convicted them of the charge. According to prosecution, the search and seizure were effected between 10.05 p.m. to 10.55 p.m. in the night, i.e. between sunset and sunrise. The proviso to Sub-section (1) of Section 42 of the Act provides as follows :
“Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.”
The investigating officer (P.W.7) has not whispered a word about the reasons for his failure to obtain a search warrant before proceeding to the spot and hence strictly speaking there has been non-compliance of the proviso to Section 42(1) of the Act, which affects the prosecution case and vitiates the trial, as held by the apex Court in the case of 1994 (I) OLR (SC) 327 State of Punjab v. Balbir Singh and others, reported in (1994) 7 OCR (SC) 283.
6. Secondly, the three packets of Ganja contained in M.Os I, II and III, after taking out three samples therefrom each weighing 50 grams, had been sealed with a brass seal (M.O. IV) which was made over to P.W.5, a seizure witness. All the witnesses have stated that M.Os. I, II and III contained Ganja without specifying the contents thereof. The I.O. (P.W.7) has stated in his cross-examination that only fruiting tops (flower) of cannabis plants were found inside the packets and that the same were not mixed with leaves or small branches of cannabis plant. The seizure-list (Ext.5) reveals that two packets each weighing 900 grams of Ganja and one packet weighing 500 grams of Ganja had been seized alongwith a motor-cycle bearing registration number OR-02G-0699. The forwarding report of the S.D.J.M. (Ext. 14) also reveals that three sample packets of Ganja each weighing 50 grams were sent for chemical examination, but there is no mention in it whether the said contraband article contained flowering or fruiting tops of cannabis plant excluding seeds and leaves, when not accompanied by tops, by whatever name they may be known or designated, as defined in Section 2(iii)(b) of the Act. Strangely enough the chemical examiner’s report (Ext. 15) reveals as follows :
"Description : A dried greenish grey compressed
mass with leaves, branches, stems
with flowering and fruiting tops of
cannabis plant (GANJA), with strong
narcotic odour.
The sample gives positive identification
tests for GANJA (cannabis) (Exhibits
A, A-l and A-2)
Remarks : In the opinion of undersigned the
sample, marked as Exhibit'A', A-l
and A-2, are found to be cannabis,
as defined Under Section 2(iii)(b) of
N.D.P. and S. Act, 1985, on the basis of
Physical and chemical examinations."
When the I.O. has denied that leaves and branches or stems were there inside the packets but the sample packets contained the same, it raises a grave doubt as to whether the samples drawn out from the seized packets of Ganja were sent for chemical examination. According to the I.O. (P.W.7) the packets were sealed using the brass seal (M.O.IV) belonging to the Dy. S.P. (P.W.4) and the said seal was kept in the Zima of P.W.5 as per the Zimanama (Ext.6) which has been corroborated by P.Ws. 1, 2, 4 and 5. It was suggested to P.W.5 that the seal (M.O.IV) was not actually handed over to him though he executed the Zimanama (Ext.6) and that it was handed over to him in Court on the date of his deposition for production before the Court, but he has denied the said suggestion. P.W.6 who has stated to have weighed the Ganja and drawn the samples from the packets has denied his knowledge as to who put the seals on the packets and as to which seal was used. P.W.3 has stated that at 1 a.m. in the same night P.Ws. 1, 2 and 7 returned to the police station along with the accused persons and seized the packets of Ganja. He made S.D.Entry No. 288 (Ext. 12) to that effect. He has not stated that the sealed packets were kept in the P.S.Malkhana entering the same in ‘ the Malkhana Register. According to the I.O. (P.W.7) he returned to the police station at 1 a.m. on 18.3.1998. along with the accused persons but has stated that the seized Ganja and samples were kept in safe custody in the P.S.Malkhana under lock and key and by putting his personal seal on the lock which was broken open on the next day while forwarding the same to Court and S.D.E. No. 289 (Ext. 16) was made to that effect which reveals that entry was made in the Malkhana Register vide Mai. No. 7/98. This entry No. 289 appears to have been made at 10 a.m. whereas the previous entry No. 288 appears to have been made at 1 a.m. which does not reveal that the seized Ganja with the samples were kept in the P.S.Malkhana under lock and key and that the same was entered in the Malkhana Register, vide Mal. No. 7/98. The said Malkhana Register has not been produced in Court. The I.O. (P.W.7) has stated that as per order of the Special Judge, Bhubaneswar he produced the seized materials before the S.D.J.M., Bhubaneswar who verified the sample packets and sent the same for chemical examination putting his own seal on the sample packets with specimen impression of that seal affixed to the forwarding letter. The chemical examination report (Ext. 15) reveals that the seals on the sample packets were intact and identical with the specimen impression of the seal received with the forwarding report and there is no mention about the seal put by the I.O. The order of the S.D.J.M. dated 19.3.1998 reveals that the I.I.C. of Badagada P.S. produced there plastic bags in sealed condition and three sample packets in sealed condition said to have contained 50 grams of Ganja each, marked as Exts. A, A-l and A-2 respectively, and that the seals were found intact and were not broken open and that the three sample packets were kept in a big polythene packet and sealed with the seal of the Court of the S.D.J.M. .Bhubaneswar and were sent for chemical examination. There is no mention regarding the gunny bag alleged to have been recovered from appellant No. 2. That apart, the brass seal of the I.O. (P.W.7) has not been utilised to seal the packets, though as per the prosecution case he had been to the spot on prior information of illegal transportation of contraband Ganja and that the brass seal of the Dy. S.P. (P.W.4) has been stated to have been used for sealing the packets, though the same has not been reflected in the seizure-list (Ext.5) and the Dy. S.P. (P.W.4) was a member of the raiding party as is evident from the seizure-list (Ext.5), which reveals that getting information from P.W.2 about illegal transportation of Ganja, P.W.7 accompanied by the Dy. S.P. (P.W.4) went to Tankapani Road and checked the vehicles passing on that road and at that time checked the motor-cycle driven by appellant No. 1 with his wife-appellant No. 2 as the pillion rider and seized the contraband Ganja. It is also incredible that P.W.4 would have gone to the spot carrying his personal brass seal, whereas the I.O. (P.W.7) did not carry his personal brass seal. Therefore, the possibility of tampering with the sample packets cannot be completely ruled out in the present case which will entitle the appellants to an acquittal in view of the decision in the case of Jadumani Sahu v. State, reported in (1997) 3 Crimes 486. in which it has been held that when there was every possibility of tampering with the articles seized and the samples, and the seal remained all through with the seizing authority, it cannot be said that the sample which was sent for chemical analysis was, in fact, the sample drawn from the seized article and that it would be hazardous to convict the accused persons.
7. Learned counsel for theappellants contended that the search and seizure in presence of the Dy. S.P. (P.W.4) who was a member of the raiding party was not in compliance of the provisions contained in Section 50 of the Act as has been held by this Court in the case of Radhakrushna Singari v. State of Orissa, reported in (1995) 8 OCR 395. The contention of the learned counsel has considerable force in view of the statement of the I.O. (P.W.7) that he did not remember in which vehicle he proceeded to the spot which lends support to the defence contention that the I.O. (P.W.7) and the Dy. D.P.(P.W.4) had proceeded together in one vehicle to check the vehicles. Besides, the prosecution allegation that appellant N. 2 was holding a bag containing two packets of Ganja, each weighing 900 grams appears to be incredible, when one packet of Ganja weighing 500 grams was stated to have been found in the dicky of the motor- cycle. The three packets of Ganja (M.Os. I, II and III) could have been kept either in the bag (M.O.V) stated to have been held by appellant No. 2, or could have been kept in the dicky itself. In the seizure-list (Ext.5) the bag (M.O.V) has been described as a gunny bag, whereas P.W.4 who was shown the bag during trial for identification has stated that the same appeared to be of an inferior quality plastic bag and the I.O. (P.W.7) who identified the bag (M.O.V) has not given its description. P.W.I who allegedly searched appellant No. 2 has not identified the bag (M.O.V). So also the two independent witnesses(P.Ws. 5 and 6) have not identified the bag. From the above unsatisfactory evidence on record, recovery of the bag (M.O.V) containing two packets of Ganja from the possession of appellant No. 2 appears to be doubtful. Hence the finding of the trial Court that the bag containing two packets of contraband Ganja was recovered from the possession of appellant No. 2 is found to be erroneous and cannot be sustained. In the case of State of Punjab v. Baldev Singh, reported in (1996) 6 SCC 172, a Constitution Bench of the Apex Court held that whether or not the safeguards provided in Section 50 of the Act have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial and that finding on that issue one way or the other would be relevant for recording an order of conviction or acquittal and that use of evidence collected in breach of the safeguards provided in Section 50 of the Act at the trial would render the trial unfair. It has been further held that failure to inform the person concerned of his right as emanoted in Sub-section (1) of Section 50 of the Act may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.
In the case of Thandiram v. State of Haryana, reported in JT 1999 (3) SC 231, the apex Court referred to the earlier decisions in Mahinder Kumar v. State, Panaji Goa reported in AIR 1995 SC 1157, and 1994 (I) OLR (SC) 327 State of Punjab v. Balbir Singh reported in JT 1994 (2) SC 108, and held that for non-compliance of the provisions of Sections 50, 52, 55 and 57 of the Act a conviction is bad in law and the accused would be entitled to acquittal.
8. In the facts and circumstances of the case and keeping in view the decisions of the apex Court referred to above, the findings of the trial Court holding the appellants guilty of the charge are found to be erroneous and unsustainable and liable to be set aside. The inevitable conclusion will be that the prosecution has not been able to establish beyond all reasonable doubts by cogent, convincing and credible evidence that the appellants were illegally transporting contraband Ganjq and as such they will be entitled to benefit of doubt and cannot be convicted of the charge Under Section 20(b)(i) of the Act and will be entitled to an acquittal.
9. The contention of the learned counsel for the appellants that the seized motor-cycle bearing registration number OR-02G-0699 may be returned to appellant No. 1 in case he is found not guilty of the charge and is acquitted, cannot be sustained in view of the fact that appellant No. 1 is acquitted on benefit of doubt.
10. In the result, the Criminal Appeal is allowed. The impugned judgment dated 1.12.1998 passed by the Sessions Judge-cum-Special Judge, Khurda at Bhubaneswar in T.R. No. 7 of 1998 is set aside and both the appellants are given the benefit of doubt and are acquitted of the charge Under Section 20(b)(i) of the Act. They be set at liberty forthwith if their detention in jail custody is not required in connection with any other case.