JUDGMENT
P.K. Mohanty, J.
1. This is an appeal against the order of conviction in an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “N.D.P.S. Act”), Sentencing to undergo rigorous ¦ imprisonment for 10 years.
2. The prosecution case, in brief, is that on 25-5-91 on receiving reliable information that one Pravat Kumar Das was in illegal possession of brown sugar in his house, the petrolling party headed by P.W. 3, the Sub-Inspector of Excise attached to E.I. and E.R. Unit- I, Cuttack proceeded to his house in village Damana and on search of his house brown sugar was recovered, the same was seized, people was taken, then the accused was arrested and his statement was recorded. Pravat Kumar Das made a statement that accused Priyabrata Mishra used to supply brown sugar to him and the accused led P.W. 3 and others to B.D. A. Colony, Bhubaneswar and identified the house of accused of Priyabrata, His house was searched, but no contraband article could be recovered. Priyabrata Mishra disclosed that he was procuring brown sugar from accused Satyanarayan Das of village Khandapada and was supplying them to accused Pravat Kumar Das. P.W. 3 arrested accused Priyabrata and he led P.W. 3 and others to the house of accused Satyanarayan Das of village Khandapada and identified his house. Accused-appellant Satyanarayan Das was found present and his house was searched. Brown sugar was recovered from his possession, which was seized, sample collected and was sent for chemical examination and it was found that the seized substance was brown sugar. The defence plea is one of complete denial of the occurrence.
3. The prosecution examined four witnesses of whom P.W. 1 was Ladukishore Panigrahi, Excise Constable, who accompanied P.W. 3 on 15-5-91, P.W. 2 is Niranjan Saiguru, a resident of Khandapada. However, he did not support the prosecution cases and was declared hostile, P.W. 3, Pradipta Ranjan Pattniak is the S. I. of Excise attached to Excise Intelligence and Enforcement Bureau who led the patrolling party and conducted search and seizure and recovered the alleged brown sugar from the house of the appellant, P.W. 4 in Sunil Kumar Poddar, the Inspector-in-charge, E. I. and/E. S. Unit-I, Cuttack who produced the information register of 1991 -92 maintained by the Unit.
4. Sri Brahmananda Panda, learned senior counsel for the appellant, submitted that even though, as per the evidence of P.W. 3, raid was conducted and seizure was made on 15-5-91, but till 20-5-91 the seized articles and samples were kept in the Excise Malkhana. The Inspector-in-charge of Malkhana has not been examined to offer any satisfactory explanation regarding safe-custody, of the seized articles inasmuch as the relevant register indicating that the articles were deposited in the Excise Malkhana having not been produced and proved, it cannot be said that what was seized was sent for chemical examination and in absence of such evidence, it cannot be said that the articles seized from the possession of the appellant was the very article, which was sent for chemical examination. The learned counsel in support of his contention has relied on two decisions of this Court in Rajendra Tripathy v. State of Orissa 1997 (12) OCR 50 and Kanduri Sahoo v. State of Orissa 1997 (1) Crimes 331. Sri Jairaj Mishra, learned Addl. Government Advocate on the other land submitted that P.W. 3, the Excise Sub-Inspector was categorically stated is his cross-examination that the seized properties including rest of the samples were kept in the excise Malkhana in the custody of the Inspector-in-charge of Malkhana till those were produced before the Court along with the Prosecution Report. It is further submitted that P.W. 3 in his evidence has further stated that he had put the personal brass seal over the M.Os. and the samples were sent for chemical examination. He had handed over that seal to the Inspector-in-charge, E.I and E.S., Unit-I, soon thereafter, P.W. 3 has further stated that he has reported regarding search and seizure of the case to his superior authority within 48 hours and that the papers are available in his office to show such report. Sri Behara further contends that it is revealed from the chemical examination report, Ext. 4 that the seals on the sample packets were duly compared with the specimen seal given with the forwarding memo by the sender and found intact and identical. It is submitted that in view of Sections 293 and 294, Cr. P.C., the report of the chemical examination mentioned in Sub-section (4) of Section 293, is admissible in evidence without examining the export as a witness. The learned counsel has relied on several decisions of the apex Court in support of his contention. The learned Addl. Government Advocate further contends that there have been no infraction of the provisions of Section 55 of the N.D.P.S. Act. The powers under Section 53 of the Act have been invested on the officer of the certain department with the powers of Officer-In-Charge of a Police Station. There is absolutely no doubt that P.W. 3 has been empowered to act as an Officer-In-Charge of the Police Station and as such Section 55 of the Act has to be read in conjunction with Section 53. The learned Addl. Government Advocate refers to a decision reported in 1997 (4) Crimes 108 (Utpal Mishra, Air Customs Officer, I.G.I. Airport v. Nicelai Christensen of the Delhi High Court, wherein it has been held that the custom officers having been invested with the powers under Section 53 of the Act, the samples can be legally kept in the Malkhana of the Customs Department and there is no requirement under law that the same should be sent to the local Police Station. In view of the statement of P.W. 3 referred to above, the contention of the learned counsel for the appellant that there has been infraction of Sections 52, 55 and 56 of the Act regarding sealing of the seized articles and custody of the same is of no avail to the appellant.
5. Sri Panda, learned counsel for the appellant further contends that the mandatory provisions of Sections 42(1) and 42(2) of the N.D.P.S. Act have not been complied with. It is contended that the Excise Sub-Inspector, while on petrolling duty, received reliable information from the accused Deba Prasad Barik disclosing that he received the brown sugar from Sitaram Tripathy of village Ralikuda and therefore, such information should have been taken down in writing and the copy of the same should have been sent to the immediate official superior and that having not been done, the infraction of the mandatory provision is apparent and non-compliance with such mandatory provision is fatal to the prosecution. The learned counsel has relied on a decision of this Court reported in (1996) 82 CLT 743 (Surendra Nath Mohanty v. State of Orissa) in support of his contention. Sri Behera, learned Addl. Government Advocate, on the other hand, referring to the evidence of P.W. 3 contends that P.W. 3 has stated in his evidence that while he was performing patrolling duty along with his staff near village-Chandrasekharpur, basing on a credible information regarding the sale of brown sugar in the house of accused Pravat kumar Das is village Damana at about at about 1.30 P.M., he reached the said house with his staff. It is submitted that P.W. 3 in his evidence at page 86 of the paper book has stated thus :
I had no information before the statement made by accused Pravat and Priyabrata that accused Satyanarayan was in possession of brown sugar. I have recorded the statement of accused Pravat implicating the other accused persons. In the information register the information relating to the possession of brown sugar by accused Pravat was recorded. That register is kept in our excise office. There is no other document to show that the information was reduced into writing. I have sent that information register to any higher authority within 24 hours. That register will show that the same was sent to the immediate authority.
It is therefore submitted that when P.W. 3 received information from accused Pravat and Priyabrata that accused Satyanarayan was in possession of brown sugar, the same was recorded in the information register and it was sent to the higher authorities within twenty-four hours and in the aforesaid premises, there has been compliance with the requirement of Section 42(1) and sent to the immediate superior officer. P.W. 4 is the Inspector-In-Charge of E. I. and E.S. Unit-I and he had produced the information register of the year 1991-92 maintained by Unit-I, Cuttack. At page 6 of the register, it is stated that there is an entry dated 15-5-91 regarding the information received about the possession of brown sugar in village Damana in the house of Pravat Kumar Das. This entry is Ext. 9. In view of the evidence of P. Ws. 3 and 4 that the information was reduced to writing in the Register, Ext. 9 and the same was sent to the higher officer, there can be no infraction of the provision of Section 42 of the Act as contended by the learned counsel for the appellant.
6. The learned counsel for the appellant further submitted that P.W. 1 having stated that he has not given any statement before the Sub-Inspector Mr. Patnaik, his evidence in Court ought not to have been considered and relied upon, inasmuch as other independent witnesses to the search and seizure having not been examined, the prosecution case ought to have been disbelieved by the learned trial Judge. The learned Addl. Government Advocate, to counter such argument has submitted that P.W. 3, the Sub-Inspector in his evidence has clearly stated that the other persons present at the search refused to become witnesses and they did not disclose their identity in spite of his request, P.W. 3 has stated in his evidence at page 85 of the paper book :
I also saw him inside the house alone at the relevant time. Pramod Kumar Das and Narasingh Das were the neighbours of accused Satyanarayan. I have not examined then since they were not present in their respective houses.
It is submitted that P.W. 3 is an official witness and he has offered reasonable explanation as to why and under what circumstances, the independent witnesses could not be examined by the prosecution. P.W. 2, who was as independent witness, unfortunately has turned hostile. The learned Addl. Government Advocate relied upon a decision of the Apex Court in Appabhai v. State of Gujarat reported in AIR 1988 SC 696 : 1988 Cri LJ 848 to contend that the non-examination of the independent witnesses at the time of search by the police would not be fatal so as to invalidate the search. The safest course open to the Court is that, it would carefully scrutinise the evidence of the police witnesses and if their evidence is otherwise trustworthy and inspire confidence and they do not have any motive to falsely implicate the accused, there is no reason that they should not be believed. It is further submitted that the officer other than a police officer invested with the powers under Section 53 of the N.D.P.S. Act with the powers of an Officer-In-Charge of the Police Station is not entitled to exercise the powers under Chapter-XII of the Code of Criminal Procedure including the power to submit a report under Section 173 of the Cr. P.C. and therefore, such officer is not a police officer within the meaning of Section 25 of the Evidence Act and as such, P.W. 3 not being a police officer and having not been vested with the power except powers of arrest, search and seizure under Sections 41, 42, 43, 44 and 49 of the N.D.P.S. Act, the statement made by accused persons Pravat and Priyabrata to P.W. 3 arc admissible in evidence inasmuch as the evidence of P.Ws. 1 and 3 with regard to the ownership of the house in question stands unchallenged in the cross-examination. It has further been submitted that the accused has not even taken a plea that the house in question did not belong to him in his statement under Section 313 Cr.P.C. Inasmuch as, apart from the oral evidence of P.Ws. 1 and 3, the report of the Tahasildar and the document Exts. 7 and 8 clearly establishes that accused-appellant was the owner of the house in question and was in exclusive possession of the said house at the time of search and seizure. The learned Add!. Government Advocate further submits that the prosecution version with regard to the search and seizure cannot be thrown out on the ground that there is no independent witness excepting the investigating officer, who recovered the material object even it is convincing and the independent seizure witness do not support the prosecution version. The learned counsel has relied on a decision of the Apex Court in Modan Singh v. State of Rajasthan reported in AIR 1978 SC 1511 : 1978 Cri LJ 1531) and in Aher Raja Khima v. State of Saurashtra reported in AIR 1956 SC 217 : 1956 Cri LJ 426. The Apex Court in the latter case has held that the presumption that a person acts honestly applies as much in favour of the police officer as all other persons and it is not a judicial approach to distrust and suspect him without good grounds therefore. On an appreciation of the evidence on record, there is nothing to disbelieve such statement and as such has to be relied on.
7. In view of the above analysis of the evidence and the submissions of the learned counsel for the parties, I do not find any infirmity or illegality in the order of conviction and sentence recorded by the learned District and Sessions Judge, Khurda convicting the appellant under Section 21 of the N.D.P.S. Act and sentencing him to undergo rigorous imprisonment for ten years.
In the result, the appeal is without any merit and is therefore dismissed.
