Adikanda Nayak vs State of Orissa

R.K. Dash, J.—The appellant assails the order of conviction u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (''the Act'' for short) and sentece of 10 years rigorous imprisonment and fine of rupees one lakh, in default, to undergo further period of 3 years R. I. awarded to him by Assistant Sessions Judge, Kendrapara.

The prosecution case shotly stated is that on 29-7-1989, night Sesadeb Samal (PW 2), S. I. of Excise, Pattamundai while performing patrol duty along with constables (PWs 1, 4 and 5) received information about the appellant having in his possession contraband opium. Later, finding the appellant coming from Pattamundai side with a bicycle. PW 2 detained him and recovered a packet from his possession which contained opium. The total weight of the opium was 40 grams out of which, the kept 10 grams as a sample for chemical analysis. Thereafter he sealed both the sample as well as the remaining opium in presence of the witnesses, he sent the sample for chemical analysis and after having obtained the report launched prosecution against the appellant to stand his trial.

When examined u/s 313, Cr PC, the appellant denied to have opium in his possession as alleged by the prosecution. In order to substantiate the charge, the prosecution examined six witnesses whereas the defence examined one. The learned Assistant Sessions Judge on an analysis of the evidence of the PWs accepted the prosecution version, convicted and sentenced the appellant as hereinbefore stated.

Learned counsel appearing for the appellant strenuously urged that mandatory provisions of Section 50 of the Act having not been strictly complied with, the conviction and sentence recorded against the appellant cannot be sustained. He would further urge that there was delay of one and half months from the date of seizure till the date of despatch of the alleged Contraband for chemical analysis. Therefore, a serious doubt arises as to whether what was seized was actually sent for chemical examination. On the other hand, learned counsel appearing for the State contended that there is no set rule of law that in all cases the procedure prescribed for seizure as envisaged in Section 50 should be strictly followed. In support of his such contention, he relies upon certain observation of the Apex Court in the case of State of Punjab v. Balbir Singh and Ors. (1994) 7 OCR 183.

As would be seen from the evidence of PW 2, he detained the appellant on the way and on search recovered contraband opium from his possession. Admittedly, the appellant was not asked as to whether he desired to be searched in presence of Gazetted Officer or a Magistrate as required in Section 50 of the Act. In Balbir Singh''s case (supra), it has been authoritatively held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a Gazetted Officer or a Magistrate since because Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he requires and the failure to provide that option to the accused vitiates his conviction. However, compliance to Section 50 can be avoided in certain circumstances. When a police officer carrying an investigation including search, seizure and arrest under the provisions of the Cr PC comes across a person being in possession of the narcotic drugs or psychotropic substances, question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer would not arise, because by then, search would have been over. As laid down in Section 50, steps contemplated thereunder, viz., informing and taking him to a Gazetted Officer should be done before the search. The aforesaid view of the Supreme Court has been followed in a recent decision in the case of Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, . Since the dictum enunciated in Balbir Singh''s case (supra) applies to the present case in full force. I would unhesitatingly hold that there was infraction of mandatory provision of Section 50 while making search of the appellant.

Apart from what has been stated above, serious doubt also arises as to whether the article that was seized from the appellant was actually sent for chemical analysis. According to PW 2, seizure was made on 29-7-1889 and on 11-9-1989 sample was sent for chemical examination. This evidence of his is contradicted by Chemical Analyser''s report Ext. 3, wherein, it is stated that S. I. of Excise, Pattamundai, sent one packet of opium-like substance under his Office Letter No. 247 dated 18-8-1989. When, according to PW 2 the sample was despatched on 11-9-1989, it is strange how the Chemical Analyser received the same on 18-8-1989. Evidently therefore, the packet that was received by the Chemical Analyser did not contain the very same article that was said to have been seized from the appellant''s possession. Added to it, there is no convincing evidence that the sample was sealed with the seal of PW 2 and the specimen of the seal had been sent to the Analyser for comparison. In view of such glaring defect, it cannot be said with certainty that what was seized from the appellant''s possession was actually analysed. Furthermore, trial held by the Assistant Sessions Judge is vitiated since because an Assistant Sessions Judge does not have power to try such cases. Section 36D which is a transitory provision empowers the Court of Session to try any offence under the Act until Special Court is constituted u/s 36. The Act provides punishment of 20 years imprisonment and for certain offences, death penalty u/s 31A. In view of this, trial can only be held by the Sessions Judge or Additional Sessions Judge, but in no circumstance by an Assistant Sessions Judge. I would have considered to remand the case to the Court of Session for re-trial in accordance with law, but in view of serious irregularities and illegalities as pointed out above which go to the very root of the prosecution case entitling the appellant to an order of acquittal, no useful purposes would be served if the case is remanded for fresh trial.

Before parting with, I may observe that due to apathy and callousness of the law enforcing agencies offences under the Act are not investigated in right direction to bring the real culprits to book. Narcotic drug which stands as a global challenge has taken a heavy toll of the society and that is the reason why the Law-Makers in their anxiety to check infilteration of such drugs have enacted the Act providing deterrent punishment. Therefore, unless the authorities entrusted with the duties to eradicate the drug trafficking work with jest and zeal the very intent and purpose of the Parliament would be frustrated. It need be mentioned that due to half-hearted investigation, people lose faith in investigative agencies and, if this is allowed to continue, it may lead to disastrous consequences. We cannot blame the people commenting that ''Law governs the poor rich and influentials govern the law''. So, before the situation goes out of control, Higher-Ups in the administration of law and order should bestow their attention for giving effect to the law by apprehending drug peddlers and for doing so, investigation should be made in strict compliance with the mandatory provisions of the Act.

In the result, the appeal is allowed and the order of conviction and sentence recorded by the trial Court is set aside. The appellant, if in custody, be set at liberty forthwith and the fine amount if realised fee refunded to him.