Somanath Das vs State Of Orissa

D. Dash, J

The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 6th December, 2021 passed by the learned Special Judge, CBI, Court No.1-cum-Additional Sessions Judge, Bhubaneswar in T.R. Case No.16 of 2019 arising out of PR Case No.212 of 2018 of E.I. & E.B. Unit-1, Cuttack.

By the impugned judgment of conviction and order of sentence, the Appellant (accused) has been convicted for commission of the offence under section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for eleven (11) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) for commission of the said offence in default to undergo rigorous imprisonment for one year with a direction to get the benefit of usual set off.

The prosecution case, in short, is that on 16.11.2018 when Sub-Inspector (S.I.) of Excise, E.I. & E.B., Unit-1, Cuttack (P.W.3) with other Excise Officials was conducting patrolling duty in Bhubaneswar in between Jayadev Vihar and Nandankanan Road, it was around 7 a.m., he received credible information that on the road at Mayfair Hotel Square, in front of Loyola School of Salia Sahi, one boy aged about 22 years wearing a check half pant and cement colour T-Shirt was selling Heroine. Receiving such information, P.W.3 recorded the same and informed to his immediate superior, i.e., Inspector-in-Charge (IIC-Sarat Chandra Bhanja) over mobile phone. He also sent a copy of the said recorded information through an Excise Constable in compliance of sub-section (2) of Section 42 of the NDPS Act. Arriving at the site, as stated above, P.W.3 could notice that person wearing the same dress as earlier informed. He (P.W.3) then detained that person at the spot in presence of other members of the raiding party. That person being asked stated his name to be Somanath Das (accused). P.W.3 then told the accused about the grounds of belief that he was suspected to be in possession of Heroin. He then asked him that if he so desired, he had the right of being searched in presence of Executive Magistrate or Gazetted Officer. The said right of the accused being intimated by P.W.3 in writing, the accused responded in stating that the search be made by P.W.3 in presence of witnesses of which he had no objection. Thereafter P.W.3 searched the accused and recovered a transparent polythene pouch containing light gray colour powder and some sale money from the front side pocket of the half pant worn by the accused. The pouch then was opened and a small quantity of powder kept inside being taken, a preliminary test was conducted by P.W.3 with the help of the Narcotic Drugs Kits which he was carrying. Upon such test and out of his departmental experience, he confirmed the same to be Heroine (Diacetylmorphine). The contents of the pouch were then weighed which came to 85 grams. The said pouch thereafter was kept in a yellow colour envelop which was seized by using paper slip containing signatures of accused, witnesses and P.W.3. The envelop was also sealed by Wax using personal brass seal of P.W.3 in presence of the witnesses and thereafter the seal was given in Zima of Debasis Patra (P.W.1) who executed the Zimanama that he would produce the same as and when so required. P.W.3 then prepared the seizure list in respect of the pouch containing 85 grams of Heroin (Diacetylmorphine) and cash of Rs.1900/- The contents of the seizure list was read over and explained to the accused and he as also the witnesses put their signatures after understanding that all those whatever have been written were correct. A copy of the said seizure list was handed over to the accused, who acknowledged the receipt of the same by putting his signature. The statement of the accused was recorded under section 67 of the NDPS Act and so also the statements of other witnesses were recorded under section 161, Cr.P.C. by P.W.3. The accused with the seized property and other relevant documents prepared at the spot were produced before the learned Special Judge, Bhubaneswar. The seized properties were produced before the learned Sub-Divisional Judicial Magistrate (SDJM), Bhubaneswar as directed by the learned Special Judge. Two samples weighing 5 grams were then drawn from that pouch, containing the powder (said to be heroin) which was marked Ext.A-I and Ext.A-II. As per the direction of the learned S.D.J.M., the sample packets were sent to State Drugs Testing & Research Laboratory, Odisha, Bhubaneswar. The residue content (suspected heroin) were kept in the packet as also the second sample marked as Ext.A/II and the money recovered amounting to Rs.1900/- were kept in the court Malkhana as per the order of the Court. Chemical Examination Report when finally came that the sample examined was nothing but Heroin (Diacetylmorphine), finally PR was submitted and the accused ultimately faced the trial for commission of offence under section 21(b) of the NDPS Act.

The case of the defence is that of complete denial and false implication.

During trial, the prosecution in total has examined three witnesses, out of whom P.W.1 is the independent witness to the seizure whereas P.W.3 is the Excise Sub-Inspector who was the head of the raiding party and P.W.2 is one of the companions of P.W.3, who was then the Assistant Sub-Inspector of Excise.

The Trial Court upon examination of evidence of the prosecution witnesses and taking into account the documents admitted in evidence, such as Ext.1 to Ext.15 of which the important are the seizure list (Ext.1), the notice of option and reply to that Ext.2/1 and Ext.3/1 respectively as also the Chemical Examiner’s Report (Ext.15) has held the prosecution to have proved the charge against the accused beyond reasonable doubt. Accordingly, the accused having been convicted for commission of offence under section 21(b) of the NDPS Act; he has been sentenced as afore-stated.

Mr. S.N. Panigrahy, learned counsel for the Appellant, as the outset submitted that the entire prosecution case stands suspect in view of the total non-compliance of provision contains in section 50 of the NDPS Act which is mandatory. In order to bolster his submission in that light, he has invited the attention of this Court to the depositions of all the three witnesses (P.W.1 to P.W.3) as also the relevant documents, Ext.2/1 and Ext.3/1. He submitted that these two documents, Ext.2/1 and Ext.3/1 on a bare look can be said to be the handiwork of P.W.3 in order to simply show the compliance of the mandatory provision of section 50 of the NDPS Act merely signatures of this accused have been taken. He further submitted that when P.W.1 has stated nothing about the compliance of the provision of section 50 of the NDPS Act, P.W.2 has also not stated anything and P.W.2 is none other than the other Excise Official, who had accompanied P.W.3 and, therefore, the evidence of P.W.3 that the accused was made aware to his right of being searched in presence of an Executive Magistrate or Gazetted Officer and that he expressed his desire not to be searched before them but to be searched before P.W.3, in the facts and circumstances, cannot be accepted for a moment. He, therefore, submitted that for such non-compliance of the mandatory provisions of section 50 of the NDPS Act, the judgment of conviction and order of sentence cannot be sustained.

Mr. P.K. Mohanty, learned Additional Sanding Counsel submitted that P.W.1 having supported the defence at the time of trial even though has not stated anything touching upon the compliance of the provision of section 50 of the NDPS Act, the same has been very well spoken by P.W.3. He further submitted that P.W.2 although initially has not stated anything about the compliance of section 50 of the NDPS Act, he has clearly admitted that P.W.3 had asked the accused to give his option as to if he wanted to be searched in presence of the Executive Magistrate or Gazetted Officer and he had given his option before P.W.3 and others in writing. He, therefore, submitted when P.W.3 has no axe to grind against the accused who was not known to him at any point of time before the detection, therefore, his evidence should not be doubted simply because P.W.1, the independent seizure witness has not supported the prosecution case and P.W.2 had stated slightly in a different manner.

Keeping in view the submissions made, I have carefully read the impugned judgment of conviction and order of sentence which have been impugned in this Appeal. I have also gone through the depositions of P.W.1, P.W.2 and P.W.3 as also the documents which has been admitted in evidence and marked Ext.1 to Ext.15 more importantly Ext.2/1 and Ext.3/1, which very much concerned with the submission advanced by the learned counsel for the accused urging for his acquittal.

Law is no more res integra that in a case of personal search of a person, who is suspected to be having Narcotic Drugs and Psychotropic Substances the provision of section 50 of the N.D.P.S. Act is required to be mandatorily complied with. The said provision has been enacted with the sole purpose of ensuring that the search and seizure, if any, remains free from any kind of manipulation and it be done or carried out in a transparent manner. So for that reason the Legislature has provided a safeguard to the person concerned of having been made aware of his right of being searched in presence of an Executive Magistrate or Gazetted Officer, if he so desires and then to exercise his option as such. It is also settled principle of law that the Officer, who has the reason to believe that the person concerned is in possession of Narcotic Drugs and Psychotropic Substances and wants to search that person, he ordained under law to make that person aware of his right as available under section 50 of the NDPS Act that if he so desired, he would be searched in presence of an Executive Magistrate or Gazetted Officer and only thereafter if the person concerned opts of being searched by that particular Officer who has detained him with the suspicion that he was carrying Narcotic Drugs or Psychotropic Substances, search of the person can proceed for the seizure of contraband if so found from his possession.

In the touchstone of the above principles when the evidence of P.W.3 is seen, he is found to have stated that on his arrival at the spot and after detention of the accused, he gave his identity to the accused and disclosed that he wanted to take his personal search as he was suspected to be possessing contraband articles. He stated to have given an option to him of being searched in presence of an Executive Magistrate or Gazetted Officer as per the requirement of section 50 of the NDPS Act in writing. He further submitted that the accused when gave his consent for being searched by P.W.3 in writing under Ext.3 in response to the notice under Ext.2/3, said search was conducted by P.W.3.

At this stage, it be stated that the plea of the accused is that no contraband was seized from his possession. When the above is the evidence of P.W.3, we find P.W.1, the independent witness to the seizure to have stated absolutely nothing about the fact that P.W.3 had made the accused aware for his right of being searched before the Executive Magistrate or Gazetted Officer and also to exercise the option to be exercised by P.W.3 and finally he was searched by P.W.3 in presence of others who had accompanied P.W.3. Although the prosecution was permitted to put with the leading question to the witness, the cross-examination has not been directed as to all these above facts touching about the compliance of section 50 of the NDPS Act and when the prosecution has asked this witness that he was suppressing the truth, he has flatly denied. When the evidence of P.W.2 is gone through, it is seen that he is none other than the ASI of Excise, who had accompanied P.W.3. He states that when they arrived and detained the accused, P.W.3 and all others gave their personal search and P.W.3 took the search of the accused and recovered the contraband from his right side pant pocket as also a sum of Rs.1900/- He in his Examination-in-Chief has not breathed a word about to the fact that P.W.3 or anyone else having detained the accused had told about the reasons of such detention and then having expressed that he was suspected in possession of Narcotic Drugs and Psychotropic substances, was made aware of his right of being searched in presence of an Executive Magistrate or Gazetted Officer. As regards the service of the writing upon the accused in order to exercise his option and the reply given to the same by the accused, this P.W.2 has not stated anything although prosecution being permitted to put leading question, during cross-examination, he has stated that P.W.3 had asked for the option of the accused for his searched in presence of Executive Magistrate or Gazetted Officer and he has also proved his signatures on those two writings. On a close reading of the evidence of P.W.3, without even taking the evidence of P.Ws.1 & 2 into account, I am of the considered view that his evidence do not satisfy that there was compliance of mandatory provisions of section 50 of the NDPS Act. He does not state that after the detention of the accused, he was made aware that he had the right of being searched other in presence of a Gazetted Officer or Executive Magistrate. Section 50 of the NDPS Act for its compliance in letter and spirit consists of two limbs; (i) that the person concerned first be made aware of his right available under section 50 of the NDPS Act and then (ii) as per the option that he would be exercising the search and seizure would be performed and not in deviation to the said exercised option. In the case at hand, P.W.3 having not stated to have made the accused aware of his right available under section 50 of the NDPS Act, the first limb of section 50 of the NDPS Act is found to have not been complied with.

Now coming to the documents in support of his compliance of the provision of section 50 of the Evidence Act, I find that Ext.2/1 and Ext.3/1 are relevant. As it appears the person, who has written the contents of this Ext.2/1 and Ext.3/1 has not signed on the same as the scribe giving any endorsement in that regard. Be that as it may, when P.W.3 has stated that he had given all those writings, let us accept for a moment that those two documents, Ext.2/1 and Ext.3/1 were written by P.W.3 in his own hand. When Ext.3/1 is seen, it appears that the signature of accused has been taken at the foot of that piece of writing whereas the signature of the witnesses are placed above him and in that Ext.3/1 when P.W.3 had absolutely no reason to sign, he has put his signature stating himself to be the person who was to search and proceed for seizure of contraband, if any.

Apart from the above evidence, the documents very interestingly finds the official seal of P.W.3 as if when he had gone to in the raiding party carrying one such official seal with him which raises doubt in mind that the documents Ext.2/1 and Ext.3/1 had not been prepared at the spot but at some later point of time. Having discussed the evidence of P.W.3 as also the documentary evidence projected by the prosecution in support of the compliance of mandatory provision of section 50 of the NDPS Act when those do not at all receive corroboration from P.W.1 and even P.W.2’s evidence cannot be said to have been standing as corroborative evidence on material particulars, this Court is of the considered view that in the particular case, there has been total non-compliance of section 50 of the NDPS act which leads to say that the judgment of conviction of the accused for committing the offence based on said search and seizure cannot be sustained.

In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 6th December, 2021 passed by the learned Special Judge, CBI, Court No.1-cum-Additional Sessions Judge, Bhubaneswar in TR Case No.16 of 2019 are hereby set aside.

Since the Appellant, namely, Somanath Das, is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case..

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