KRUSHNA CHANDRA MOHANTY Vs. STATE

JUDGEMENT

(1.) The appellant faced trial under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') for illegal possession of opium of about 8kgs. 600 grams and having been found guilty has been sentenced to R.I. for ten years and fine of Rs. 1,00,000/ -. in default to R.I. for a further period of one year with direction for the substantive sentences to run concurrently. The conviction and sentence are assailed in this appeal. The facts which led to the launching of the prosecution are that PW 3, art Excise Inspector while performing patrol duty ,came to learn of contra - band opium having been kept in the house of the appellant. He along with his patrol party proceeded near his house and kept it under surveillance. Ha arranged two witnesses one of whom was a resident of the area, and called the appellant to come out of the house. He disclosed his identity and expressed desire to search the house as entertaining the bona fide belief of contraband opium having been concealed there. He recorded reasonable grounds of his belief for the search of the house in presence of the witnesses and read over and explained the contents of it to all present The document was exhibited as Ext. 1 during the trial. Thereafter he himself and PW 1, an Excise A.S.I, gave their personal search to the witnesses , and the witnesses also gave their personal search. Thareafter all of them including the appellant entered the house and conducted the search during which a locked tin suit case kept under a cot, a rexin bag containing a piece of paper and a cotton jacket were found. Out of the jacket smell of opium was coming out. The appellant handed over the key of the suit case to PW 3, but he directed him to open it. The appellant opened the suit case which was found to contain nine paper packets covered with newspaper packings. All the packets ware opened and were found to contain opium which PW 3 was able to identify because, of his long experience in the Department from its colour, appearance and odour. All the packets were weighed indape - ndently and seizure -list was prepared. The packets were again re - packed and affixed with paper seals on which the signatures of the witnesses and of the appellant were taken. The appellant also signed on the paper seals affixed to the packets. Another almirah kept inside on search yielded the ration card Ext. 3. The ration card indicated the ownership of the house, the seizure -list Ext. 2 was prepared in presence of the witnesses indicating the seizure of the opium, the tin box with lock and key, the rexin bag with its contents and the ration card. The opium packets were kept inside the suit -case which was again locked with the seif -sarr3 lock and paper seal on the lock was out. The rexin bag was also sealed with paper seals. Over all the paper seals the signatures of the witnesses and of the appellant were taken. Thereafter the key of the lock was sealed in a separate packet with paper seal similarly. Copy of the seizure list was given to the appellant who in acknowledgement of receipt of which signed in Ext. 2. The seized materials were produced before the Sub -Divisional Judicial Magistrate on 30 -10 -1989 who took steps for sending the samples for chemical examination. After receipt of the chemical examination report confirming the seized material to be opium, PW3 submitted the prosecution report against the appellant. During the trial PW 2 was examined as an independent witness to the search and seizure, but he did not support the prosecution. The learned Addl. Sessions Judge placed reliance on the evidence of PWs 1 and 3 and finding the seizure of opium to have been made from the possession of the appellant, convicted and sentenced him.

(2.) DURING hearing of the appeal, question was raised by the learned counsel for the appellant of the identity of the seized materials with those produced in Court not to have been established, it being his submission that the paper seal on which the appellant was supposed to have been signed along with the witnesses to the seizure at the time of seizure had not been proved during the trial. It was the submission that the prosecution did not establish the packets of opium produced in the Court during trial to have been actually seized from the appellant's possession as the paper seals carrying the signature of the appellant were not proved nor were they stated to be inside the suit -case even though the learned Sub -Divisional Judicial Magistrate had recorded in the order -sheet those seals to have been kept inside the tin suit -case. Because of the submission, directed on 4 9 -1992 for production of M.O.I, M.O.II, M.O. Ill and M O. IV, respectively the tin suit -case, the rexin bag, the key and the lock. Those were produced in Court in sealed condition and were opened. After opening the seal from the lock of the suit -case, with the aid of the key it was opened. On opening the suit case, a paper containing the signatures of the appellant of Debendra Kumar Bastia, of Jayaram Swain (PW 2) of the A S.I. and of the Inspector of Excise, Sadar on 26 -10 -1989 at Jhanjirmangala was found'. Opening all the 9 packets similar paper seals signed by all the persons including the appellant on 26 -10 -1989 were found. Since it was the submission of the learned counsel for the appellant that the paper seals had not been proved, the M.Os. were sent back to the trial Court, while maintaining the appeal on record, for taking additional evidence by summoning the witnesses and proving the paper seals. It was further directed that in the event the paper seals are proved, opportunity is to be given to the appellant for cross -examination and also to record his statement under Sections 313, Cr PC. The trial Court was directed to remit the additional evidence to this Court, In pursuance of the Court's direction, PW 3 was further examined who has duly proved the paper seals. The appellant cross -examined him and apart from his further statement under Section 313, Cr PC has also examined two witnesses in defence. While PW 3 proved all the paper seals and hence established the necessary link between the seized materials and the materials produced before the Court, it was also elicited from him through cross - examination that all the material objects relating to the case had been kept in the Excise Malkbana before production before the Sub - Divisional Judicial Magistrate. He was himself custodian of the Malknana, The evidence remains completely unimpeached. While PW2 is one of the seizure witnesses, the appellant examined the other seizure witness Debendra Kumar Bastia as OW 1. The substance of the evidence of the witness is that he could not say as to whether the appellant signed on Ext. 2 or any other paper, that he had not signed on any paper in his presence, that in his presence no seizure had been made, that he was compelled to be a witness, and that he had signed on a paper where there was some writing and on three or four blank papers. In cross - examination he stated that he visits the house of the appellant once or twice in a year and that he had never made any complaint before the authority of the excise staff or before any Court of Saw that he was compelled to sign on blank papers. No complaint was made to the I.I.C. of Purighat P S. The credibility of this witness is hardly satisfactory. At best his evidence is 6f one who has gone back upon his acknowledgement of being a seizure witness. So far as DW 2 is concerned, he only deposed that there is another Krushna Chandra Mohanty, son of Banchhanidhi Mohanty who is also residing in Jhanjirmangala. It being nobody's case that the appellant was not the person who was accused and there being no question of identity, the evidence of this witness has little value, - -

(3.) IT is the next submission of the 'earned counsel for the appellant that there is no evidence that PW 3 complied with the provisions of Sec, 42(1) of the N.D.P.S, Act. That Section directs that when any opinion is recorded in writing in pursuance of which the raid is made, a copy of the information is to be sent forthwith to the immediate official superior. To take benefit of the provisions, reliance is placed on JT 1994(1) SC 108 (State of Punjab v. Balbir Singh) (1 -3 -1994) where their Lordships have held that if there is total non compliance of the provision of Section 42(1), it affects the prosecution case. There is nothing on record to show thatt Section 42(1) had not been complied with. The question was never put to PW 3. Section 42(1) of the N.D.P.S. Act being an act to be performed by an officer, a presumption would otherwise arise under Section 114(o) of the Evidence Act that the provi - sion was complied with. The presumption has not been rebutted. It was otherwise held in AIR 1972 SC 2478 (Bharat Singh v. State of U.P.) that though it is true that the burden of establishing the guilt is on the prosecution yet that thereby cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. It is rather the duty of the defence to cross -examine the Investigating Officer in that behalf. This submission of Mr. Biswal hence must be rejected.