JUDGMENT
P.K. Patra, J.
1. The appellant has challenged the judgment dated 25-7-1998 passed by Shri A.P. Das, Second Additional Sessions Judge, Cuttack in G. R. Case No. 331 of 1997 (T.R. No. 18 of 1997) convicting him under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1935 (for short ‘the Act’) and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. l,00,000/- and in default to undergo rigorous imprisonment for a further period of five years.
2. Briefly stated, the prosecution case is as follows : On 19-3-97 p. w. 2, the Inspector of C.I.D., Crime Branch, Cuttack received reliable information regarding illegal transaction of narcotic drugs at Gopalpur under Cuttack Sadar Police Station and hence he organised raid in the Gopalpur Commercial Gheckgate area and nearby residential houses from 12 30 p.m. to 3.30 p.m. on the same day. The raiding party-consisted of p. w. 2 himself, one S.I., three constables and two women constables of the Department and one A. S. I. of the Cuttack Sadar P. S., During the course of such raid they found the appellant (hereinafter referred to as ‘accused’) carrying on business transaction at the Commercial Checkgate. He was suspected to be a drug peddler and hence he was challenged. He was given option to be searched in presence of a Magistrate or a Gazetted Officer and when he expressed to be searched in presence of a Gazetted Officer, p. w. 2 requested the Superintendent of Police of the Department over phone to requisition the services of a Gazetted Officer and the Deputy Superintendent of Police (p.w.3) of the Department was deputed to the spot and
in his presence p. w. 2 conducted personal search of the accused and recovered one small polythene packet containing brown sugar and cash of Rs. 100/- from the pant pocket of the accused. On weightment, the brown sugar came to 1 gram 950 mgs. Since the accused could not account for the same, the brown sugar and cash were seized in presence of two local witnesses. Two sapmles each weighing 50 miligrams, were drawn from the brown sugar and the sample packets, the polythene packets containing balance brown sugar of 1 gram 850 mgs. and the cash were sealed in separate packets by using the brass seal of the office of the S. P. of the Department. The brass seal was left in zima of a witness. The accused was arrested at 5.06 p.m. for illegal possession of brown sugar and was taken to the Sadar Police Station where p. w. 2 lodged the F.I.R. (Ext. 6) before the Officer-in-charge of the P.S. (p. w. 6) who registered the case and took up investigation. P.w. 6 again sealed the articles and kept the same in police Malkhana. On 19-3-97 he forwarded the .accused to the court of Judicial Magistrate, First Class (Rural), Cuttack in custody and produced the seized articles. “On his prayer the Magistrate drew up 500 miligrams of brown sugat from the packet containing 1 gram 850 miligrams of brown sugar and sealed the packet using his own seal and sent the same fot chemical examination. On 2-5-97 p, w. 6 handed over charge of investigation to another Inspector of the Department (p. w. 4). He received a xerox copy of the chemical examination report which revealed that the sample contained heroin (Diacetyl-morphine). The original chemical examination report was stated to have been sent to the court, but the same was received in court at the time of examination of p. w. 4 and was marked as Ext. 9. After completion of investigation, p. w. 4 submitted charge-sheet against the accused who stood his trial.
The defence plea is one of denial. In his statement u/s. 313, Cr. P. C. the accused has stated that he, was asked to sign in blank papers and nothing was seized from his possession.
3. Mr. R. N. Mohanty, learned counsel for the accused and Shri S. Pradhan, learned Additional Standing Counsel for
the State were heard at length. While Shri Mohanty contended that the impugned judgment is unsustainable in law and is liable to be set aside, the learned Addl. Standing Counsel supported the impugned judgment.
4. In order to bring home the charge against the accused, prosecution has examined six witnesses. P. w. 1 is an independent witness to the seizure. P. w. 2 is the Inspector of the Deparment who detected this case. P. w. 3 is the D. S. P. of the Department in whose presence the seizure was effected. P.w. 4 is the Inspector of the Department who completed investigation. P. w. 5 is the S. I. of the Department who was a member of the raiding party. P. w. 6 is the O. I. C., Cuttack Sadar Police Station who registered the case and took up investigation. The defence has examined none.
5. P. w. 1, the only independent witness examined in this case has turned hostile and has not supported the prosecution case. The learned Additional Sessions Judge found the statements of the official witnesses to be trustworthy and unimpeachable and placed reliance on them and convicted the accused holding that the prosecution has been able to establish the charge against the accused beyond all reasonable doubt. He rejected the argument of the defence counsel that the trial was vitiated due to non-compliance of the mandatory provisions under Sections, 42, 50, 55 and 57 of the Act and that the sample sent for chemical examination was not drawn up from the article allegedly seized from the possession of the accused. Discussing the evidence on record, the trial court negatived the defence contention that the trial was vitiated due to non-compliance of the mandatory provisions of Section 42 of the Act and further held that the provisions of Sections 50, 55 and 57 of the Act have been duly complied with and there was no tamper-ring with the sample in this case.
6. Before entering into a discussion regarding the compliance or non-compliance of the provisions under Section 42 of the Act and further held that the provisions of Sections 50, 55 and 57 of the Act in the present case, it will be expedient to determine whether the sample sent for chemical
examination was drawn from the article seized from the possession qf the accused or whether there was any chance of tampering with the sample and whether the articles were kept in proper custody as provided under the Act.
7. As per the prosecution case as revealed in the F.I.R. (Ext. 6), 1 gram 950 miligrams of brown sugar kept in a polythene packet was recovered from the pant pocket of the accused along with cash of Rs. 100/- and the polythene packet containing brown sugar was marked as Ext. ‘A’ and two Samples each weighing 50 miligrams were drawn up and kept in two packets marked as Exts. A/1 and A/2. The seizurelist Ext. 1/1 reveals that besides polythene packet containing -brown sugar, out of which the two sample packets were drawn, cash of Rs. 100/- (one hundred rupee note) and one ash coloured old full pant (terrycotton) which had been put on by the accused and from which the brown sugar was recovered, has been seized. But the said full pant has not been produced in court for identification. So also the brass seal used for the purpose of sealing the packets and kept in zima of a witness, has not been produced in court. According to the witnesses the seal of the office of the S. P. of the Department had been used for the purpose. The I. O. (p. w, 6) has stated to have resealed the packers using own brass seal which has also not been produced in court. The Order No. 2 dated 21-3-97 passed by the J.M.F.C. (R), Cuttack reveals that the I. O. produced a cotton bag bearing the seal of the I. O. and the seal tallied with the seal affixed on the copy of the S. D. E. (Station Diary Entry) and the seal was opened and three paper packets with seal of the Inspector of the Department (the I. O.) were found in the bag. The packets allegedly contained brown Sugar and there was cash of Rs. 100/-and one full pant. The Magistrate took out 500 miligrams of brown sugar as sample from the packet marked as Ext. ‘A’ and marked the sample packet as Ext, AX which was sealed using his seal and was sent for chemical examination as per his forwarding letter (Ext. 10) dated 21-3-97. The other two sealed packets marked as Exts. A/1 & A/2, cash of Rs. 100/- and full pant were kept in paper packets which was put inside the cotton bag and
after scaling the cotton bag, it, was handed over to the I. O. for production in the Sessions Malkhana. The sample marked as Ext. AX was kept in a small tin diba which was kept inside cloth bag and was sealed affixing the seal of the Magistrate and the same was sent to the Director, State Forensic Scicnce Laboratory, Rasulgarh, Bhubaneswar (for short ‘the Laboratory’) for examination. The chemical examination report (Ext. 9) reveals that the tin diba contained a sealed paper pudia marked as Ext. AX which contained 100 miligrams of some brown powdered substance and had been kept inside a polythene packet and the said exhibit marked AX was found to contain heroin (Diacetylmorphine). It is strange to note that when the order sheet as well as the forwarding letter of the Magistrate reveal that 500 miligrams of the substance was sent for chemical examination, when it reached the office of the Director of the Laboratory, the packet contained only 100 miligrams df the substance. It is unusual on the part of the Magistrate to draw up sample from the packet marked as Ext. A for the purpose of sending the same for chemical examination, instead of sending any of the two sample packets marked as Exts. A/1 and A/2, drawn up by p. w. 2 at the time of seizure. Though it is noted in the order that the seals put by p. w. 2 and the I. O, were found in tact on the paper packets, it is not known what prompted the Magistrate to break open those seals and to draw up another sample of 500 miligrams for the purpose of chemical examination. The shortage of 400 miligrams of brown sugar in the sample sent for chemical examination, has not been explained by the prosecution and it raises grave suspicion about the veracity of the pcosecution case and the conclusion that can be arrived at will be that the sample packet was tampered with or weighment of the brown sugar either before the Magistrate or in the Laboratory, was not correct, The non-production of the brass seal used by p. w. 2 for the purpose of sealing the packets either before the Magistrate or before the trial court and non-examination of the witness who was given zima of the brass seal will be adversely viewed. So also the non-production of the seal used by p. w. 6
for the purpose of resealing the packets either before the Magistrate or before the trial court, is to be adversely viewed. Further as per the forwarding letter (Ext. 10) the sample packet was sent on 21-3-97 and the I. O. (p. w. 6) has made an endorsement in the order-sheet that he received the sealed packet on 21-3-97 and he has stated that he sent the same through constable No. 553 on 21-3-97 to the laboratory but the chemical examination report (Ext. 9) reveals that the sample packet was received on 22-3-97. In his statement in cross-examination p. w. 6 has admitted that he has not mentioned in the case-diary as to where he kept the sealed articles which he received at the P. S. The constable who was directed to deposit the sample packet at the Laboratory has not been examined and there is no evidence on record as to where the sample packet was; kept on 21-3-97 before its production at the Laboratory on 22-3-97. The Malkhana register of the P. S. has also not been produced in court to show that entry was made in it regarding the seized articles. The station diary entry No. 480 made at 6.25 p. m. on 19-3-97, copy of which is marked as Ext. 11, does not reveal that the seized sealed packets marked as Exts. A,. A/1, A/2 and one full pant which was received at the P. S. by p. w. 6 from p. w. 2, were kept in the P. S. Malkhana and that entry was made in the P. S. Makhana register. Thus there is no satisfactory evidence as to where the seized articles were kept by p. w. 6.
8. The learned counsel for the accused placed reliance on the decision in the case of Kanduri Sahoo v. State of Orissa reported in 1997 (1) Crimes 331. In that case the recovery was effected on 13-5-94 and sample was sent to the Laboratory on 17-5-94 and the relevant register showing that the article was. deposited in the excise Malkhana was not produced and it was held that in the absence of corroborative evidence, it was difficult to believe the prosecution case that the seized article.was kept in excise Malkhana in the interregnum period. Reference was made to the case of Valsala v. State of Kerala reported in 1993 (6) O. C. R. 457 in which the Apex court set aside the
conviction for the failure of the prosecution to prove that the, article seized was kept in proper custody and to two father decisions of this court, the conviction of the appellant was set aside. The learned counsel for the accused also placed reliance on the decision in the case of Kambhu v. State of Orissa reported in 1996(1) O.C.R. 101 in which the conviction of the appellant was set aside since the prosecution had failed to prove by adducing cogent, consistent and reliable evidence that the seized contraband article had been kept in proper custody and since there was discrepancy in the weight of the contraband article (brown Sugar) .seized and produced in court. The learned counsel for. the accused also placed reliance on the decision in the case of Nitamani Sahoo v. State of Orissa, reported in 1997 (12) O. C. R. 360. The facts and circumstances of that case are similar to the facts and circumstances of the present case. In that case, the sample as well as the seal remained with the officer-in-charge for about thirteen days whereafter it was sent for chemical analysis and there was discrepancy in the weight of the sample taken and the weight of the sample examined by the Scientific Officer. Observing that in the above circumstances, the possibility of tampering with the sample cannot be ruled out and it was very difficult to hold that the sample which was examined by the Scientific Officer was, in effect, taken from the article seized from the accused, the appellant was given the benefit of doubt and was acquitted of the charge.
9. In the present case, as already discussed earlier, prosecution has not boen able to establish by leading cogent, convincing, consistent and unimpeachable evidence that the contraband article was kept in proper custody before its production in the court and that there is discrepancy in the quantity of the sample sent for chemical analysis and received at the Laboratory for chamical examination and the discrepancy has not been explained.
10. Keeping in view the decisions referred to above, and in the facts and circumstances of the case, conviction of the accused cannot be sustained and the same is liable to be set aside
and the accused will be entitled to the benefit of doubt and resultant acquittal of the charge. In view of the aforesaid finding, a discussion regarding compliance or non-compliance of the provisions under Sections 42 of the Act and further held that the provisions of Sections 50, 55 and 57 of the Act will be merely academical. The trial court failed to appreciate the above aspects and came to the erroneous conclusion of guilt of the accused. For all the reasons discussed above, the impugned judgment is liable to be set aside.
11. In the result, the Criminal Appeal is allowed and the impugned judgment dated 25-7-98 in G. R. Case No. 331/97 (T. R. No. 18/97) passed by the Second Additional Sessions Judge, Cuttack convicting the accused under Section 21 of the Act and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default, to undergo rigorous imprisonment for a further period of five years, is set aside. The accused is given the benefit of doubt and is acquitted of the charge. He be set at liberty forthwith, if his detention is otherwise not required, in any other case.
12. Crl. appeal allowed.
