Ajaya Kumar Naik vs State of Orissa

D.M. Patnaik, J.—On information that the appellant was allegedly trafficking in brown sugar, the police raiding party nabbed him in his residence situate in Dhannkuti Sahi in Puri town on 9-4-1990 around 10 a. m. and recovered from his pant pocket ten grams of heroin in a paper packet.

On trial he was convicted u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (for short, the ''Act'') and sentenced him to undergo R.I. for ten years with a fine of rupees one lakh which he assails in this appeal.

The appellant denied the indictment.

Mr. Deepak Mishra, the learned counsel for the appellant did not challenge the recovery of that particular quantity of brown sugar and that too rightly, since though the two independent witnesses did not support the prosecution case, this Court, after going through the evidence of the rest of the witnesses who were police personnel is satisfied that there is no infirmity in their evidence to disbelieve the fact of recovery. The chemical report containing the substance to be brown sugar also goes unchallenged. His main argument was that the entire trial was vitiated for non-compliance of the statutory provisions under Sections 41, 42, 43, 50 and 53 of the Act and, therefore, according to him, the conviction should be set aside.

More heinous is the crime, stricter is the provisions of law prescribed for the same. So do the provisions of the Act in question. Realising the graveness of the penal provisions, Legislature provided a number of safeguards before and after such search, seizure and arrest so that, the liberty of a man, a constitutional guarantee, would not be thwarted by an unscrupulous investigating agency.

The effect of such violation of the statutory safeguards being the main thrust of argument, the fate of this case, as it stood on the date of such argument, depended mainly on the ratio decided in the case of Banka v. State of Orissa, a Full Bench decision of this Court reported in Banka Das, Rambalak Das, Birendra Kumar Behera and Soumitri Behera Vs. State of Orissa, . But the views expressed by the apex Court as is found in a recent case before it reported in (1994) 7 OCR 283 State of Punjab v. Balbir Singh and Ors., run counter to the views exprsssed by the majority view in the case of Banka (supra).

To appreciate the case of the appellant, it is necessary to have a comparative analysis of the two views and find out if the appellant can succeed on the basis of the law laid down by the apex Court.

Sections 41 and 42 and the other sections up to Section 68 of the Act are under Chapter V which chapter deals with procedure for search, seizure, arrest etc. Presently, we are concerned with Sections 41 and 42 of the Act.

It may be kept in mind that the house was searched not under any warrant from any Magistrate.

Section 41, Sub-section (2) prescribes that any such officer empowered in that behalf either by the Central Government or by the State Government, as the case may be, by general or special order if he has reason to believe that an offence punishable under Chapter IV of the Act has been committed, may authorise any officer subordinate to him, to search any place and arrest such person whether day or night or himself arrest a person or search a building, conveyance or a place.

Section 42(1) (a) and (d) prescribes such officer as specially empowered may, between sunrise and sunset, enter into and search any building or place, seize any materials or articles and detain or arrest any such person whom he has reason to believe to have committed an offence punishable under Chapter IV of the Act relating to such drug or substance.

Therefore, the question is whether in the absence of any such expressed statutory authority in favour of the officer either himself conducting the search, seizure etc. or directing his subordinate to conduct the same, the said search, seizure etc. and the proceeding to follow should be vitiated or this would amount to a mere irregularity not affecting the merit of the case.

In my view absence of statutory sanction authorising such search etc. would render the act of the officer illegal and would vitiate the proceeding, Question of mere irregularity not affecting the merit in a given case would arise where the Officer having the statutory authority to conduct the search etc. does not comply with the statutory provisions of the Act relating to such search, seizure etc.

In Banka''s case (supra), before the Full Bench perhaps the matter as to whether the particular officer had the statutory authority being either generally or specially empowered by the State Government as prescribed under Sacs 41 and 42 of the Act to conduct such search, seizure etc. was not for decision. Therefore, the majority view expressed by brother Justice Pasayat, J. in para 5 of the judgment touching the provisions of Sections 41, 42, .43, 45, 50 and 57 of the Act after relying on the two decisions of the Suprsme Court reported in Radhakishan Vs. State of U.P., and Khandu Sonu Dhobi and Another Vs. State of Maharashtra, , holding that procedural infirmity in search and seizure would not by itself be sufficient to vitiate the conviction and the same cannot be assailed if recovery of the prohibited articles is proved and if no prejudice or failure of justice has occasioned, is in conformity with the settled proposition of law over which there can be no second opinion.

In the present case at hand prosecution has not come forward that PW 5, the officer-in-charge of the Puri Town Police Station who authorised PW 7. the I.O., was either generally or specially empowered by the State Government to himself investigate or direct another to investigate as provided under Sections 41 and 42 of the Act, No notification of the Government has been proved.

No doubt, PW 7 in para 5 of the examination-in-chief stated that he was vested with the power to conduct search. But then he could not say number or date of the notification.

A bald statement of PW 7 cannot be accepted for proving his authority to the search and seizure in such a grave case, This alone cannot be said to be sufficient to discharge the burden of proving the statutory authority in favour of PW 7 when such an authority empowers the officer to take drastic steps like search and seizure and also arrest a person thereby depriving him of his personal liberty guaranteed under the Constitution. If this solitary statement is accepted that would virtually shift the onus to the defence to prove the negative fact that there was no such notifination, which would amount to asking the defence to comply with an impossibility and secondly it will amount to placing the initial burden to prove a case on the defence which the prosecution Is obliged to discharge and in that case it would be against the fundamental rule of evidence.

That apart, it such a notification would have been there, question of PW No. 5 directing PW 7 to conduct the search would not have arisen. For this reason, I hold that there was no authorisation in compliance with Sections 41 and 42 of the Act. The legality of such absence of authorisation and its effect may be judged in the light of following discussion.

This Court in an earlier occasion in the case of Sk. Sakaout and Others Vs. State of Orissa, . following the decisions reported in 1987 CriLJ 689Nandalal v. State, 1988 Rajasthan Criminal Cases 113. Umrao v. State, and 1989 (1) Crimes 276, Santilal v. State, in para 3 of the judgment held that in the absence of a notification required under Sections 41 and 42 by the State Government under the Act in favour of the officer who conducted the investigation the entire proceeding was vitiated.

In the case of Banka (supra). brother Rath, J.re affirmed his earlier view what ha observed in Bidyadhar''s case (1992) 5 OCR 31 and following the views of the other High Courts as indicated in 14 of the judgment, accepting the views expressed in the cases of Nandalal Umrao and Santilal (supra) held as follows:

"Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised it would per se be illegal and would affect the prosecution case and consequently vitiate the trial."

10 It could be argued that PW 7 on the direction of PW 5 was exercising the powers under Sections 100/165 of the Criminal Procedure Code and, therefore, no authority was needed under the NDPS Act. The apex Court in the case of Balbir (supra) has also taken note of such situation and observed in para 8 of the judgment that while acting under the provisions of the Cr PC and exercising the powers of surveillance or investigating into other offences, they have to carry out search and arrest as per the provisions of the Cr PC. At this stage, the apex Court observed, if there is any non-comoliance of the provisions of Section 100 or 165, Cr PC that itself cannot be a ground to reject the prosecution case outright. There its effect on the main case would depend on the facts and circumstances of each case. But situation may arise while carrying out such search under the Code they come across any substance covered under the NDPS Act and the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband article is seized during such search then the search and arrest attracts the provisions of the NDPS Act and then from that stags the remaining relevant provisions of the NDPS Act would be attracted and further steps have to be taken in accordance with the provisions of the said Act. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, than in such a case, the Magistrate or the Officer so empowered has to proceed and act under the provisions of Sections 41 and 42 of the Act.

To appreciate the case at hand, I may point out that the FIR lodged by PW 7 with the Officer-in-charge of Puri Town P.S. (PW 5) shows that PW 7 was specifically directed by PW 5 to cerry on a raid for heroin/brown sugar in the Dhanakuti Sahi, This is also corroborated by PWs 3 and 4, the S. I. and the A. S. I. of Police respectively who stated in the evidence that PW 5, the Officer-in-charge had received a reliable information that the appellant had stored and was selling brown sugar.

Therefore, it i6 amply proved that the raiding party had prior information about the appellant dealing with brown sugar. Such prior information made it obligatory on the part of the investigating agency to have been armed with either a general or special power or authority enshrined in Sections 41 and 42 of the Act. This having not been done the entire proceeding is vitiated.

Then I proceed to examine the effect of non-compliance of the provisions of Section 50 of the Act which predicates that the person arrested by the officer if he so requires shall be taken by the said officer without unnecessary delay to the nearest Gazetted Officer of the Departments mentioned in Section 42 or to the nearest Magistrate. In the case of Banka (supra) the majority view held that, Sub-section (1) of Section 50 does not cast any obligation on the concerned official to inform the person to be searched that he has the action to be searched before any Gazetted Officer or the Magistrate. The majority view was that the plea that person concerned should be made aware such of his right is ''without substance. It was concluded by observing that even if such information had not been given it would not amount to any infraction of the provision.

But the apex Court in the case of Balbir (supra) took the contrary view and held as follows :

"...To afford such an opportunity to the person to be searched he must be aware of his right and that, can be. done only by the authorised officer informing him."

At another place in para 22 of the judgment the Court held as follows :

"......Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses he will be searched in presence of a Gazetted Officer or a Magistrate. Thus provisions of Section 50 are mandatory.''''

Relying on the cases of Jang Singh v. State of Haryana, reported in 1988 (1) Crimes 446, and State of Himachal Pradesh v. Sudarsan Kumar, reported in 1989(3) Crimes 608, the Court ultimately held that violation of such mandatory provision per se would be fatal to the prosecution case.

The decision rendered in the case of Banka (supra) so far as this point is concerned is overruled by the decision of the apex Court as indicated above.

Keeping the above propostions of law laid down by the Supreme Court in the case of Balbir (supra) the present case against the appellant would also fail on that ground because, the prosecution tailed to prove that PW 7 in fact had asked the appellant whether he wanted to be searched before a Gazetted Officer or a Magistrate. No doubt PW 7, the I. O. stated in the examination-in-chief that he had so asked the appellant to which the appellant, denied. This evidence of PW 7 cannot be believed since he admitted in para-6 of his cross- examination not to have mentioned this fact in the case diary. On going through the case diary also I do not find this to have been mentioned therein. The omission to mention such an important aspect of the case in the case diary goes a long way in casting a doubt in the version of PW 7 in this regard.

Therefore, for violating the mandatory provisions of Section 50 of the NDPS Act renders the search in petitioner''s case vulnerable.

13 Next let me deal with yet another important aspect of the case with regard to the sealing and custody of the seized article, a contention which is made rather the crux of the argument of Mr. Mishra, learned counsel for the appellant.

Undoubtedly in our system of judicial administration, in cases of grave offences like the one at hand, search and seizure form an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject-matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the more necessary and imperative on the part of the investigating agency to seal it in such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered with before it could reach the public analyst. To support such a view reference may be made to the case reported in AIR 1930 SC 1314, State of Rajasthan v. Daulatram.

PW 3, the S. I. of Town Police Station, Puri stated in his cross-examination that the personal seal of the Town Inspector was used by PW 7 while sealing the article. The Town Inspector was not examined to corroborate this. Though PW 7 stated this, surprisingly PW 5, the Officer-in charge who authorised PW 7 to investigate did not testify whether the seal of the Town Inspector was used in sealing the packet, nor he identified the sealed packet in the Court. PW 4, the A. S. I. stated to have been present from the beginning to the end of the investigation. But astonishingly he did not say anything about the sealing. PW 6, the A.S.I, did not corroborate the evidence of PW 7 that personal seal of the Town Inspector was used in sealing the article except only saying that the seal was kept with the I.O. When PW 3 stated that the personal seal of the Town Inspector was used, PW 7, the I. O. stated in para 2 of his examination-in-chief that the personal seal of the Officer-in-charge (PW 5) was used. This fact is also not corroborated by PW 5 that his personal seal was used in sealing the packet.

For all these inconsistencies as indicated above, the prosecution case about sealing at the spot becomes doubtful. Such a doubt is further strengthened because the forwarding report (Ext. 3) addressed to the Chemical Analyst indicates that one packet containing 10 smalt packets of heroin was forwarded tor chemical examination under the signature of the Sub-Divisional Judicial Magistrate on 4-5-1990. But surprisingly the chemical examination report (Ext. 4) shows that the Chemical Examiner received one tin Diba with sealed cloth cover. PW 7 admitted in para-5 of the cross-examination that no tin Diba was seized from the possession of the appellant, but explained it by saying that he had used it for sending the article for chemical examination. If this explanation of PW 7 is accepted and in fact, a tin Diba containing the article was despatched for chemical examination it would have been so mentioned in forwarding report (Ext. 3) but instead it was mentioned that a packet was sent. This creates a doubt as to whether the substance seized in fact was the substance which was sent for chemical examination.

In this connection reference may be made to the case of Laxmikanta Mohapatra v. State of Orissa, reported in (1994) 7 OCR 108 where this Court following the decision of the apex Court reported in (1993) 6 OCR (SC) 457 Vasala v. State, held that it could not be said that the article seized was kept in proper custody to that the Court could be assured as to what was seized was only the article which was sent for chemical examination and this was considered as a big gap and an important missing link.

Next with regard to the custody of the seized article, Section 55 of the NDPS Act mandates that an officer in charge of a police station shall take charge of and keep in safe custody all articles seized under the Act which may be delivered to him.

In para 3 of the examination-in-chief the I.O. stated that after reaching the police station he made over the seized articles kept in the sealed packet to the Officer-in-charge ''for proper prospective. PW 6, the Officer in charge did not state anything about his taking charge of custody of the seized article. There is no corrssponding entry in the case diary indicating that the custody of the seized article was given to the Officer-in-charge. Therefore, there is no material to hold that the mandatory provisions of Section 55 of the Act that the seized article must be kept with the Officer-in-charge of the police station to have been complied with. As held by the Supreme Court, such non- compliance of mandatory provisions will affect the case as a whole.

In the result, the appeal is allowed. The conviction and sentence of the appellant are set aside and he be set at liberty forthwith. The other articles except the contraband article seized from the appellant be returned to him. The brown sugar seized be destroyed if not already so done.