Sohan Ray @ Rai vs State Of Orissa

P.Patnaik, J

The aforementioned appeals arisen out of the common judgment dated 05.12.2015 have been heard analogously and are being disposed of by this

common judgment.

The aforesaid appeals are directed against the judgment dated 5. 12.2015 passed by learned 1st Additional Sessions Judge,

Sambalpur in T.R. Case No.16/1 of 2014-15 whereby the appellants herein have been convicted for the offences punishable under Section 20(b) (ii)

(c) of the N.D.P.S. Act and have been sentenced to undergo R.I for ten years and fine of Rs.50,000/- each in default of fine, the convicts shall

undergo further period of R.I. for one year each.

The prosecution case, as has been projected on the basis of F.I.R in nutshell is that on 08.08.2014 while Sri B.B. Nayak and other P.S. staff of

Rairakhol Police Station, during patrolling duty in Rairakhol Town with P.S. staff saw one Ambassador Car crossed police vehicle in a high speed with

suspicious manner. So he chased the car and detained near Bobby filling service station Rairkhol and detected the registration number of the car UP-

62-6813 and three persons were in exclusive and conscious position of contraband Ganja in three Polly bags. The P.S.’s staff arranged the local

witnesses, weigh man and other documents for seizure. Since it was chance detection other formalities could not be observed. He seized the Ganja

car and other belonging of the accused persons observing the formalities as laid down in NDPS Act. Being interrogated the accused persons

confessed before witnesses about transportation of Ganja to Banaras for commercial purpose which was procured by one Suryaprakash from Boudh

side. Accordingly, he submitted written report before the Rairakhol Police Station and directed S.I. Sushma Kuanr to take up investigation of the case.

During investigation, the I.O. visited spot, examined witnesses, submitted detail report to the Superintendent of Police, Sambalpur. After investigation

charge-sheet was submitted against the appellants keeping open the investigation against the other accused-Surya Prakash.

During the trial the prosecution in order to bring home the charges examined altogether 13 witnesses.

P.W. 1 is the A.S.I. of police and was present at the time of detection of this case. P.W.5 is the Havildar and also present at the time of detection

of this case. P.Ws.2, 6, 7, 8, 10 and 12 are the seizure witnesses. P.Ws.3, 4 and 9 are other witnesses. P.W.13 is the Investigating Officer. No

witness has been examined on behalf of the defence.

On scrutiny of the evidence of the prosecution witnesses particularly, P.Ws.1, 5, 11 and 13, prosecution has proved that the accused persons were

transporting 72 kgs of ganja in Ambassador Car bearing Registration No.UP-62-6813.

P.W.1 in his evidence deposed that, on 08.08.2014 as per direction of the Inspector-in-charge, he went with S.I. Binod Bihari Naik, Havildar

Ramakanta Sahu, Home Guard Dibakar Bohidar in police jeep for night patrolling in Rairakhol town area. After patrolling they were returning to

Police Station. About 5.30 to 6.00 A.M. at Khadhadipa bridge they found one Ambassador car was coming from Rairakhol side towards Sambalpur in

high speed. S.I. Naik on suspicion chased the vehicle for one K.M. and could stop the vehicle near Bobby Filling Petrol Pump. In the said vehicle

there were three persons two of them were sitting on the back seat. The driver disclosed his name as Baboolal. The two persons sitting on the back

seat disclosed their names as Pravakar Tripathy and Sohan Ray. P.W.1 deposed that, S.I. Naik asked the driver to open the dicky of the car for

checking and after opening of the dickey three polythene bags were found from the dickey. There was smell of ganja from the three polythene bags.

P.W.1 deposed that, the S.I. asked the driver to show authority for possession and transportation of the alleged ganja. Then the S.I. asked the driver

about his option for his personal search and search of the vehicle in presence of a Gazetted Officer or Magistrate, the driver denied for search before

any Gazetted Officer or Magistrate. P.W.1 further deposed that, the S.I. served notice to the driver and the two persons for search of the vehicle and

their personal search. The S.I. sent him to bring two local witnesses and weigh man. The S.I. sent Havildar Ramakanta Sahu to the P.S. to bring

forms and other materials for seizure. P.W.1 deposed that, he called Gourishankar Patra (P.W.6) and Prakash Mukhi (P.W.2) as witnesses and

Ramesh Naik to weigh the property. Havildar Ramkanta Sahu (P.W.5) returned from the Police Station with forms and other documents. P.W.1

deposed that, the three polythene bags were weighed and found 40 kgs, 20 kgs and 12 kg respectively of the alleged ganja in the said three polythene

bags. The I.O. gave identification marks A, B & C to the three bags of ganja and collected two samples of 25 grams of ganja each from each of the

polythene bags and kept the samples in paper envelopes with identification marks A/1, A/2, B/1, B/2 and C/1, C/2 to the sample of ganja. Then the

S.I. sealed all the three polythene bags containing ganja with identification marks A, B & C and all the sample envelopes containing ganja with his

brass seal and prepared seizure list in presence of the accused and witnesses. P.W.1 did not sign in the seizure list of the alleged ganja and the

samples of ganja. P.W.1 further deposed that the S.I. took personal search of driver Baboolal and recovered from his possession two Nokia mobile

phones, voter card and PAN card. The S.I. also took personal search of accused Pravakar Tripathy and recovered from his possession two Samsung

mobile phones, cash of Rs.13,500/- and voter card. The S.I. took personal search of accused Sohan Ray and recovered from his possession two

Nokia mobile phones, cash of Rs.320/-, voter card and PAN card. P.W.1 deposed that the S.I. prepared seizure list at the spot. The S.I. also seized

the Ambassador Car bearing Registration No.UP-62-6813 and prepared seizure list. The S.I. gave in zima the weighing machine and the brass seal to

Ramesh Naik. P.W.2 and other witnesses also did not say anything about seizure of ganja from the possession of the accused person and P.W.2 was

also declared hostile. P.W.3 is an independent witness (having motorcycle garage and did not identify that accused person or knows nothing about the

case). P.W.4 is an independent witness (Business man did not identify the accused persons or knows nothing about the case).

P.W.5 was the Havildar. He deposed that, on 08.08.2014 he accompanied S.I. B.B. Naik, ASI and two Home Guards in night patrolling in Rairakhol

area. At Khandadhipa Chowk one Ambassador Car was going in high speed bearing Registration No.UP-62-6813. They chased the said Ambassador

car about 1 K.M. They detained the said Ambassador car at Rairakhol petrol pump. There were three persons in the Ambassador car who are the

accused. The S.I. asked the accused persons about any contraband property in the vehicle and the accused persons remained silent. The S.I. then

searched the vehicle and found three packets of ganja from the dickey and under the back seat of the car. The S.I. demanded authority for possession

of ganja but they failed to produce any authority. The S.I. sent him to bring two witnesses, forms and other sealing materials from the P.S. He brought

three persons namely; Gouri Shankar Patra (P.W.6), Prakash Mukhi (P.W.2) and Ramesh Chandra Naik (P.W.7) and other sealing materials and

forms from the P.S. The S.I. took weight of ganja of the three packets and found 40kgs, 20 kgs and 12 kgs respectively. The S.I. collected two

samples of 25 grams each from each packet and sealed the samples. The three bags of ganja were kept in cloth bags and sealed. The S.I. prepared

the documents at the spot. After search and seizure and preparation of all the documents they returned to the P.S. with the accused and the seized

properties. P.W.5 did not sign in the seizure list and other documents. P.W.6 did not say anything about the seizure of the ganja from the possession of

the accused and has been declared hostile. P.W.7 is the weigh man. He did not say anything about the case nor taking of zima of brass seal or

weighing machine but, he has proved his signatures in the documents vide Exts.1/4, 1/5, 6, 6/1, 7 and 7/1. P.W.7 has been declared hostile by the

prosecution. P.W.8 is the witness to the seizure of command certificate. He proved seizure list vide Ext.8 and the command certificate vide Ext.9.

P.Ws.9 and 10 are the Home Guards. P.W.9 did not support the prosecution case. P.W.10 only speaks about seizure of a document and register

relating to detection of ganja vide seizure list Ext.10.

P.W.11 is the S.I. of Police, who detected the case. He testified that on 07.08.2014 he was posted as S.I. of police at Rairakhol P.S. On the direction

of the I.I.C., Rairakhol P.S., he conducted night patrolling duty with A.S.I. P.K. Garnaik (P.W.1) and other police officers at Rairakhol town. On the

next morning about 6.00 A.M. they were returning to P.S. At-Khandadhipa bridge one white Ambassador Car bearing Registration No. UP-62-6813

was coming in high speed from Angul side towards Sambalpur. They chased the said Ambassador car for about 1 k.m. and could able to detain the

vehicle at old petrol pump. There were three persons in the vehicle. Accused Baboolal was driving the vehicle and accused Pravakar Tripathy and

Sohan Ray were sitting in the vehicle. P.W.11 identified all the three accused in Court. P.W.11 found one bag on the back seat of the vehicle and two

bags in the dickey of the vehicle. The accused persons admitted before P.W.11 to have been transporting ganja in three bags in the car. P.W.11

asked the three accused whether they want to be searched in presence of any Gazetted Officer or Magistrate and they denied to be searched by

either of them. P.W.11 sent ASI P.K. Garnaik to bring two local witnesses. P.W.11 proved the willingness of the accused vide Ext.11. Ext.11/1 is the

signature of P.W.11 in the Memo of willingness of the accused. Ext.11/2 is the signature of accused Sohan Ray. Ext.11/3 is the signature of accused

Baboolal. Ext.11/4 is the signature of accused Prabakar Tripathy. P.W.11 further deposed that , the A.S.I. came with three persons Gouri Shankar

Patro (P.W.6), Prakash Mukhi (P.W.2) and weigh man Ramesh Chandra Naik (P.W.7). P.W.11 further deposed that in presence of witnesses Gouri

Shankar Patrol (P.W.6) and Prakash Mukhi (P.W.2), he opened the first bag and weigh man Ramesh Chandra Naik (P.W.7) took weight of the ganja

and found 40 kgs. Then the second bag was opened and weighed and found 12 kgs. P.W.11 collected two samples of ganja of 25 grams each from

each bag and kept the samples of ganja in packets and sealed the same in presence of witnesses and the accused. P.W.11 kept the remaining bulk

ganja in the bags and sealed the same in presence of the witnesses and the accused. P.W.11 gave identification mark ‘A’ to the first bulk ganja

and the samples ‘A-1’ ‘A-2’, to the second bag ‘B’ and the samples ‘B-1’ ‘B-2’ and to the third bag ‘C’ and

the samples ‘C-1’, ‘C-2’. P.W.11 has proved in Court one part of sample ganja ‘A-2 vide M.O.I. ‘B-2’ vide M.O.II and ‘C-

2’ vide M.O.III. P.W.11 obtained signatures of the accused, witnesses and weigh man in the M.Os. P.W.11 kept specimen brass seal in another

envelope and gave identification mark ‘D-1’. P.W.11 has proved the envelope containing specimen brass seal in sealed condition vide M.O.IV.

P.W.11 has also proved his signatures in the M.Os. vide M.O.I/1, M.O.II/1, M.O.III/1, and M.O.IV/1.

P.W.11 then took personal search of the accused persons. P.W.11 seized two Nokia Mobile phones, one voter identity card from accused Baboolal

vide seizure list Ext.2/2 and his signature Ext.2/3. He also seized two nokia mobile phones, one voter identity card, one PAN Card and cash of

Rs.320/- from accused Sohan Ray vide seizure list Ext.3/2 and his signature Ext.3/3. He also seized from accused Pravakar Tripathy two Samsung

Mobile Phones, one voter identity card in the name of Surya Prakash and cash of Rs.13,500/- vide seizure list Ext.4/2 and his signature Ext.4/3.

P.W.11 also seized the weighing machine from Ramesh Chandra Naik (P.W.7) vide seizure list Ext.5/3, Ext.5/4 is his signature. P.W.11 left the

weighing machine in zima of Ramesh Chandra Naik (P.W.7) vide Zimanama Ext.7/2, 7/3 is his signature in the zimanama. P.W.11 also seized the

bulks of ganja in three bags with weight 39.950 grams, 19.950 grams and 11.950 grams in presence of the accused and the witnesses and prepared

seizure list vide Ext.1/6, Ext.1/7 is his signature in the seizure list. P.W.11 left the brass seal in zima of Ramesh Chandra Naik (P.W.7) vide Zimanama

Ext.6/2.

P.W.12 is the constable and deposed that S.I. S. Kuanr seized one command certificate from C/736 Dasarathi Meher and prepared seizure list vide

Ext.13. Ext.14 is the command certificate. He also proved that S.I. S. Kuanr also seized one Despatch Register from S.I. Sonia Badek and prepared

seizure list vide Ext.15.

P.W.13 is the I.O. She deposed that during investigation she took charge of the seized properties produced by S.I., B.B. Naik and the accused

persons arrested by S.I. B.B. Naik. P.W.13 examined S.I. B.B. Naik and kept the seized properties in Police Station Malkhana vide Malkhana Entry

no.49/14. She also examined witnesses Prasant Kumar Gannayak, ASI of police, Rairakhol P.S., Ramakanta Sahu, Havildar, Home Guard Dibakar

Bohidar and Tripurari Behera. She deposed that the IIC informed to the S.D.P.O. and the S.P. about detection of ganja. She submitted a detailed

report to the S.P., Sambalpur vide report Ext.16. She visited the spot and prepared spot map vide Ext.17. She also examined accused Baboolal,

Prabhakar Tripathy and Sohan Ray, sent them for their medical examination and arrested them. She forwarded all the three accused to Court. She

made prayer to Court to deposit the seized properties in Court Malkhana. The Special Court directed the S.D.J.M., Samablpur to send sample of

contraband property to the R.F.S.L., Sambalpur for examination vide Ext.18 the forwarding report of the S.D.J.M., Sambalpur regarding sending of

samples of ganja to the R.F.S.L., Sambalpur for examination. P.W.13 also proved the Chemical examination report forwarded to the S.P., Sambalpur

by the Deputy Director, vide Memo No.2434 dated 16.08.2014 which is marked as Ext.19 (with objection as the chemical examination report is the

copy of the original).

After closer of prosecution case, the appellants were questioned under Section 313, Cr.P.C. about the incriminating materials, to which they denied.

Learned Counsel for the appellants submitted vehemently that all the prosecution witnesses have stated that the chemical examination report

produced by the prosecution which was objected by the appellants during course of trial as it is a carbon copy and no original chemical examination

report filed by the prosecution hence it is not admissible in the eye of law which is supported by a case law in view of the ratio laid down in case of

Basant Kumar Pradhan and another v. State of Orissa reported in (2016 (1) OLR 766).

He further submits that if the chemical examination report is taken out of consideration then there is no evidence on record that any kind of test was

conducted by any person having Departmental experience to ascertain that the articles seized was nothing but Ganja and in absence of such oral

evidence that conviction of the appellant for possessing the contraband Ganja of commercial quantity cannot be sustained. In support of his contention

learned counsel for the appellants further submitted that the issue was affirmed by this Hon’ble Court vide judgment dated 07.08.2019 passed in

the case of Jalandhar Singh v. State of Orissa (2019 (II) OLR-665). He further submitted that in the case of Shalimar Chemical Works Ltd. V.

Surendra Oil and Dal Mills (Refineries) & Ors: [(2010) 8 SCC 4231], the Hon’ble Apex Court affirmed the settled position of law that xerox

copies/photocopies are not admissible in evidence.

Learned Additional Standing Counsel for the State has vociferously submitted that the chemical examination report is a carbon copy of original

chemical examination report and is admissible under law since it is a carbon copy and which has been proved by P.W.13. Section 62 Explanation (2)

of the Evidence Act,1872 states that where a number of documents are made by one uniform process, as in the case of printing, lithography, or

photography, each one of is a primary evidence if the contents of the exhibits is not disputed. So, Ext.19 is a primary document as it is made by same

process with the original and the signatures are in original. Therefore, the chemical examination report forwarded to the Superintendent of Police,

Sambalpur by the Deputy Director vide Ext.19 is admissible. He further submitted that Section 74 of the Evidence clearly states that the following

documents are public documents.

Documents forming the acts or records of the acts.

(i) Of the sovereign authority,

(ii) Of the official bodies and Tribunals, and

(iii) Of public officers, legislative, judicial and executive, of (any part of India or of the Commonwealth), or of a foreign country.

The documents prepared by a public official is public documents. So the documents prepared by Forensic Laboratory which is a public institution is

public documents. The document which has been exhibited is a carbon copy of the original copy. The carbon copy is generally prepared at the time of

preparation of original documents. So that is presumed to be as original. Therefore, the chemical examination report vide Ext.19 cannot be discarded

which is admissible. He further submits that while the statement of accused was recorded under Section 313 of Cr.P.C., that time the accused never

disputed before the learned trial court relating to contents of Ext.19 at question no.14. Learned counsel for the State further submitted that P.Ws.1 and

5 categorically deposed that the Ganja was seized, P.W.13 in his deposition at paragraph-5 has categorically stated that he has “found three bags

of ganja in the vehicle with smell of ganja and also categorically stated that it is a fact that I mentioned in the F.I.R. that after recovery of three bags

of ganja with smell of ganjaâ€. He further stated that after observing all formalities under NDPS Act and following due procedure, the Investigating

Officer seized the ganja so also arrested the accused person and also made personal search of the accused persons. The carbon copy of the original

copy is admissible in the eye of law which is supported by a case law in view of ratio laid down in case of Mahinder Singh v. Jasobanta Kaur reported

in 2019 SCC online SC 1617. The most of the witnesses supported the prosecution case and accordingly their evidence was accepted by the trial court

and there is no irregularity, infirmity for conviction of the appellants, hence, the appeals may kindly be dismissed. Learned counsel for the State further

submitted that the learned trial court has rightly found the appellants guilty under Section 20(b)(ii) of the N.D.P.S. Act and in that view of the matter,

the judgment of conviction and order of sentence does not warrant interference by this Court.

Having heard learned counsel for the parties at length and on perusal of the materials available on record, it appears in the present case the original

chemical examination report Ext.19 has not seen the light of the day. Photo copy of the chemical examination report has been proved. P.W.13 has

stated that the original chemical report was directly sent to the Court by RFSL, Sambalpur but such a document is not available in Court record. If the

original chemical examination report was not available on record, then the prosecution should have been led secondary evidence in accordance with

law. Section 65(e) of the Evidence Act states that secondary evidence might be given of the existence, condition or contents of the documents when

the original is a public document within the meaning of Section 74 of the Evidence Act by producing the certified copy of that document but no other

kind of secondary document, is admissible. Section 76 of the Evidence Act states as to who is to give the certified copies of the public documents and

also states that written certificate to be furnished at the foot of such copy that it is a true copy of such document or part thereof and such certificate

shall be dated and scribed by such officer with his name and his official title and shall also the sealed, whenever such officer is authorized by law to

make use of a seal and such copies so certified shall be called certified copies.

The contraband ganja was weighed and seized in presence of P.Ws.2 and 6, but they did not say anything rather turned hostile. P.W.11 is the S.I. of

police detected the case and is informant found one bag on the back side of the vehicle and two bags in the dickey of the vehicle whereas P.W.1,

A.S.I. of police was also present at the time of detection said that after opening the dickey three polythene bags were found from the dickey, there

evidences are not corroborated by oral evidence. P.W.5 is the Havildar and was also present at the time of detection but the brass seal of the samples

of ganja was not properly done and so also P.W.7, who is the weigh man and taken zima of brass seal had denied everything. From the evidence of

P.W.11 and other witnesses it appears that during course of search and seizure that the investigating agency have not complied the mandatory

provisions of Sections 50, 52 and 55 of the N.D.P.S. Act. While the search was made by P.W.11, no gazette officer or any magistrate was present at

the time of search and seizure. From the entire evidence of the prosecution witnesses it appears that no independent and seizure witnesses having

supported the prosecution case but the learned trial court only basing on the evidence of the official witnesses has been pleased to pass the order of

conviction and sentence.

To sum-up; in a case like the present one, where there are serious contradictions in the evidence of the prosecution witnesses and the prosecution

witnesses have contradicted each other on material aspects. Therefore, the appellants are entitled to the benefit of doubt.

To strengthen the view of this Court, it would be profitable to refer the case law enunciated in the case of Bahadur Singh v. State of M.P. &

another reported in 2002 (I) OLR SC 565 wherein the Hon’ble Supreme Court has been pleased to hold that “No conviction will lie on the sole

testimony of police witnesses. Recovery, seizure and deposit of the contraband articles not proved through independent witnesses. Accused is entitled

to benefit of doubt.

In the light of the yardstick for scrutinizing and evaluating the evidence as indicated in the case of Bahadur Singh (supra), when this Court

examined the evidence led by the prosecution for sustaining the charge under Section 20(b)(ii) of the N.D.P.S. Act against the appellants, this Court is

inclined to hold that the appellants are entitled for the benefit of doubt. Accordingly, the impugned judgment dated 05.12.2015 passed by the learned

1st Additional Sessions Judge, Sambalpur convicting the appellants under Section 20(b)(ii) of the N.D.P.S. Act and sentencing them to undergo ten

years R.I and fine of RS.50,000/- each in default to undergo R.I. for one year each in T.R. Case No.16/1 of 2014-15 are hereby set aside.

Accordingly, appellants are directed to be released from custody forthwith, if their detention is not required in any other case.

The CRLAs stand allowed.

Send back the LCRs forthwith.