HIGH COURT OF ORISSA: CUTTACK. CRLA Nos.66 and 90 of 2003 From the judgment and order dated 28.02.2003 passed by Shri J.P. Mishra, Sessions Judge-Cum-Special Judge, Ganjam-Gajapati, Berhampur in 2(a)C.C. No.1/2002(N). --------- In CRLA No.66 of 2003 Sk. Faiyaz …… Appellant - Versus- State of Orissa …… Respondent For Appellant : M/s. Dr. G.D. Tripathy, B. Jalli, S. Satpathy, B. Pasayat, Mrs.S. Pradhan M/s. D.P. Dhal, S.K. Tripathy, P.K. Routray, R. Rout and D.K. Pattnayak For Respondent : Government Advocate In CRLA No.90 of 2003 Laxman Pradhan …… Appellant - Versus- State of Orissa …… Respondent For Appellant : M/s. S.R. Mulia, R.C. Moharana, M. Mulia, H.K. Singh and R.R. Nayak For Respondent : Government Advocate PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 16.12.2009 : Date of judgment – 5.5.2010 B.K. PATEL, J. By the impugned judgment dated 28.02.2003 passed by the learned Sessions Judge-Cum-Special Judge, Ganjam-Gajapati, Berhampur in 2(a).C.C. No.1/2002(N), the appellants in both CRLA Nos.66 and 90 of 2003 have been convicted under Section 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for short the ‘N.D.P.S. Act’) and each of them has been directed to undergo rigorous imprisonment for twenty years and to pay fine of Rupees Two Lakhs, in default to undergo further period of rigorous imprisonment for five years. 2. During the period of occurrence P.Ws.1 and 2 were working as Sub-Inspector and Constable of Excise respectively at Chatrapur. Prosecution case is that on 28.03.2002 P.W.1, while performing patrolling duty with other excise staff including P.W.2 on the National Highway No.5, stopped a white Maruti Van bearing registration No.DL-20-D-8972 moving towards Ganjam village from Chatrapur side on suspicion. The vehicle was being driven by the appellant in Criminal Appeal No.66 of 2003. Appellant in Criminal Appeal No.90 of 2003 was the occupant of the vehicle. On being asked by P.W.1, both the appellants gave their consent for search of the vehicle. Accordingly, in presence of P.W.2 and an independent witness-P.W.3, the vehicle was searched by P.W.1. On search, 16 Jari bags-M.Os. II to XVII containing Ganja and Ganja dust were recovered from the vehicle. P.W.1 collected two samples weighing 50 grams each from each of the Jari bags and packed the same in 32 tin containers. The tin containers were sealed by P.W.1 by using his personal brass seal. He also sealed the 16 recovered Jari bags containing Ganja and 2 Ganja dust. Paper slips containing signatures of the witnesses, appellants and P.W.1 were pasted on M.Os.II to XVII as well as on the 32 tin containers. P.W.1 prepared seizure list Ext.1 and kept his personal brass seal in the custody of P.W.3 upon execution of Zimanama Ext.2 by him. At 10.00 P.M. on the same day, P.W.1 produced the appellants as well as seized articles before the learned Sessions Judge-Cum-Special Judge, Ganjam Gajapati, Berhampur who remanded the appellants to custody and directed P.W.1 to produce the seized articles in the court Malkhana on 02.04.2002 instructing that till then the seized properties be kept in the Excise Malkhana. P.W.1 sent one of the samples extracted from each of the seized Jari bags for chemical examination to the Deputy Drugs Controller, Bhubaneswar under his forwarding letter Ext.5. As there was delay in receipt of the chemical examination report despatched from the Laboratory by post, P.W.1 procured duplicate copy of the chemical examination reports Ext.3 to 3/3 from the Laboratory on 27.05.2002. He also received Jari bag M.O. I containing remnants of the samples in the 16 tin containers from the Laboratory. Thereafter, P.W.1 submitted prosecution report against the appellants as well as co-accused Laxminarayan Pati against whom case was split up. 3. Both the appellants took the plea of denial. 4. In order to substantiate the charge against the appellant, prosecution examined three witnesses P.Ws.1 to 3 and also relied upon documents marked Exts.1 to 5 and material exhibits M.Os. I to XVII. No defence evidence was adduced. 3 5. P.W.3, the independent witness did not support the prosecution and was declared to be a hostile witness. However, relying on evidence of the two official witnesses P.Ws.1 and 2, learned trial court held the prosecution to have proved the charge against both the appellants beyond reasonable doubt and accordingly convicted and sentenced them as stated supra. 6. In assailing the impugned judgment it was submitted by learned counsel for the appellants that there is no dispute to the settled principle of law that an order of conviction in a criminal trial can be based solely on the evidence of official witness. If the same is not that of the interested witness, and if the evidence is consistent and credible, such evidence can be relied upon even in the absence of independent corroboration and, even if the independent seizure witness has turned hostile to the prosecution. However, it was contended that evidence of P.Ws.1 and 2 is not at all consistent and credible. P.W.1 contradicts himself while deposing in court and also is not corroborated by P.W.2 in respect of material particulars. It was further argued that the evidence of P.W.1 exhibits a tendency to depose false-hold in as much as he makes prevaricating statements with regard to the manner in which allegedly seized contraband was handled. There being no evidence that the seized contraband was properly sealed and kept in safe custody, there is no basis to conclude that what was examined in the laboratory, was seized from the possession of the appellants, as alleged. It was strenuously contended that the learned trial court has failed to take note of non-compliance by P.W.1 4 of provisions under N.D.P.S. Act, which renders the prosecution vulnerable, In support of his contentions, learned counsel for the appellants cited a number of decisions of this Court. 7. In reply, while supporting and defending the impugned judgment, it was argued by learned counsel for the State that in the absence of any circumstance indicating any motive on the part of the official witness to falsely implicate the appellants, there is absolutely no reason not to accept their evidence and to find fault with the prosecution case. 8. Both P.Ws.1 and 2 depose that in the early morning of 27.3.2002 they detained a Maruti Car near Rushikulya Bridge. Appellant in Crl.Appeal No.66 of 2003 was the driver and appellant in Crl.Appeal No.90 of 2003 was the occupant of the vehicle. On search, in presence of P.W.2, other Excise Staff and P.W.3, P.W.1 recovered 16 Jari bags containing Ganja and Ganja dust from the Maruti Van. Both P.Ws. 1 and 2 say that P.W.1 took two samples from each of the Jari bags and, thereafter, sealed the sample packets and the recovered Jari bags. Thereafter seizure list Ext.1 was prepared. P.W.2 does not depose regarding the manner in which sample packets and recovered Jari bags were sealed nor does he say that personal brass seal used by P.W.1 for the purpose of sealing was kept with P.W.3, on execution of zimanama Ext.2. P.W.3 categorically states in his cross examination that he has not taken any brass seal on zima. 5 9. Apart from factum of recovery of contraband, it is for the prosecution to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets during the retention of those packets by the investigating agency and the same was the very articles produced before the Magistrate for sending them to the Chemical Examiner. Prosecution has to establish proper sealing and safe custody of the seized articles so that articles examined in the Laboratory shall be relatable to the article seized. It is the burden of the prosecution to prove that the seized article was sent for chemical analysis by adducing unimpeachable evidence and no scope for suspicion should be left in the matter. Criminal trial does not admit any gap or missing link. In this connection, decisions in Valsala –vrs- State of Kerala : (1993) 6 OCR (SC) 457, Sinic Patricia –vrs- State : (1994) 7 OCR 277, Bhimasen Sahoo –vrs- State of Orissa : (1997) 12 OCR 443 and Rama Bahadur Pandey v. State of Orissa : 2009 (I) O.J.R.884 may be referred to. 10. P.W.1 is the sole witness to depose the manner of sealing and safe custody of the sample packets and recovered Jari bags. He testifies that he pasted paper slips containing signatures of witnesses and accused on each of the sample packets and recovered Jari bags. Thereafter he affixed the impression of his personal brass seal on the paper slips and handed over the brass seal to P.W.3. Not only P.W.3 denies to have taken zima of any brass seal, but also there is no evidence on record to indicate that the brass seal was ever produced in Court. At paragraph-3 of his 6 deposition, P.W.1 asserts that on 28.3.2002 itself he arrested the appellants and forwarded them to Court along with sample packets and seized Jari bags containing ganja. It appears that appellants were produced before the learned Sessions Judge-cum-Special Judge, Berhampur at 10.P.M. on 28.3.2002. In the order sheet it has been mentioned that as the Court was closed due to Dola festival, the I.O. was directed to deposit the seized properties in the court Malkhana on 2.4.2002. Till then, the I.O. was directed to keep the seized property in the Excise Malkhana. In paragraph-4 of deposition of P.W.1 says that in accordance with the order of the Court, he produced all the seized articles before Special Judge on 2.4.2002. However, such assertion is not borne out by record. There is no mention in the order sheet that any article was produced in Court on 2.4.2002. Also the testimony of P.W.1 himself falsifies such assertion. It appears that P.W.1 did not at all involve the Court in the process of forwarding the sample packets for chemical examination to the Laboratory. P.W.1 deposes that on 4.4.2002 he himself proceeded to Bhubaneswar and handed over 16 sample packets, i.e. one from each Jari bag for chemical examination. Also, P.W.1 deposes to have personally collected 16 remnants tin dibas of the samples and duplicate copies of chemical examination reports from the Laboratory. In course of cross examination, P.W.1 vitally contradicts himself when he deposes at paragraph-11 that he had not brought 32 samples along with the seized ganja to the Court on 28.3.2002. He admits that the samples were kept with him till 4.4.2002. It is admitted by P.W.1 that there is no mention in 7 his diary that he had kept the sample packets in the Excise Malkhana. It is also curious to note that P.W.1 had not sent the copy of the forwarding report with which the samples were produced for chemical examination to Court. It is categorically admitted by P.W.1 that he did not produce the seized articles in any Police Station. In course of his re-examination only P.W.1 appears to have produced the copy of the forwarding report of the sample packets. 11. Thus, there is no evidence on record that the brass seal alleged to have been used by P.W.1 at the spot was not available with P.W.1 during the period when the allegedly seized articles and sample packets were in his custody. Though specific direction was made by the Court to produce the articles in court on 2.4.2002, P.W.1 appears to have dealt with the sample packets on his own till 4.4.2002. Sections 52 and 55 of the N.D.P.S. Act provide for safe custody of the seized articles in the Police Station. There is no explanation for non-compliance of said provisions. P.W.1 has also not whispered a word regarding compliance of provision under Section 57 of the N.D.P.S. Act relating to submission of report regarding particulars of arrest and seizure made under the Act within 48 hours to his immediate superior officer. 12. In Rama Chandra Mohanty v. State of Orissa : 2007 (I) OLR 522 in view of lack of evidence regarding keeping the brass seal used for sealing in the custody of the independent witness as well as non- production of the brass seal in Court, it was held that possibility of tampering with the seal put on the sample packet could not be ruled out. It 8 CRLA 66-03 was further held that non-compliance of the provision under Section 52 of the N.D.P.S. Act in not depositing the seized articles with the Officer- in-Charge of the nearest Police Station also creates suspicion. In Kanduri Charan Mohanty v. State of Orissa : CLT 2003 (Supp.) (Crl.) 210 it was held by this Court that non-production of the seized articles before the Officer-in-Charge of the nearest Police Station in contravention of Section 52 (3) of the N.D.P.S. Act, non-production of the seal for comparison during trial and failure the report regarding detection the superior authority without any explanation created doubt relating to detection and genuineness of the case. In Kanduri Sahoo v. State of Orissa : 83 (1997) C.L.T. 126 it was held by this Court that in absence of material to establish that the seized articles were kept in safe custody, it is difficult to hold that the article seized from the possession of the accused was the very same article which was sent for chemical examination. In Siba Bahadur Thapa v. State of Orissa : 1997 CRI.L.J.3487 it was held that non-compliance of the provisions under Section 57 of the N.D.P.S. Act to send a full report within 48 hours to the immediate official superior by the officer effecting the search and seizure affects the veracity of such officer adversely. 13. In view of above, prosecution has failed to establish proper sealing and safe custody of the seized articles so as to establish beyond reasonable doubt that articles recovered from the appellants were subject matter of chemical examination under examination reports Ext.3 to Ext.3/3. Also veracity of P.W.1, as a reliable witness, has been materially 9 corroded due to non-compliance of procedure provided under the Act under Sections 52, 55 and 57 of the N.D.P.S. Act. Therefore, there is no basis to sustain the charge against appellants. They are entitled to be acquitted. 14. In the result, both the appeals are allowed. Impugned judgment dated 28.2.2003 passed by learned Sessions Judge-Cum- Special Judge, Ganjam-Gajapati, Berhampur in 2(a)C.C. No.1/2002(N) is set aside. The appellants be set at liberty forthwith, if they are not required to be detained otherwise. …………………. B.K. Patel, J. Orissa High Court, Cuttack, Dated the 5th May, 2010/B. Jhankar. 10