Orissa High Court Criticizes Special Judge For Unnecessary Citations, Says Precedents Cannot Be Applied Mechanically

"Reading of the impugned judgment reveals that learned Special Judge appears to have made a superficial appreciation of the evidence thereby leaving out the significant omission therein. This Court further observes that learned Special Judge has referred to numerous decisions (27 to be precise). It goes without saying that the case laws are to be applied only to the facts and circumstances of the case at hand and not to be applied mechanically."

Factual Background

On 11.07.2013 at about 04:00 AM, the IIC of Mohana police station received information that some unknown persons were transporting contraband ganja in a vehicle from Antaraba to Berhampur, basing on which he made a station diary entry dated 10.07.2013 and instructed the S.I. and other police staff, who were already on patrolling duty for the car festival, to proceed to the spot and to intercept the vehicle.

On receipt of such information, the S.I., who is the authorized officer in the case, went to that area and found a vehicle was proceeding towards Berhampur. When the police party asked the vehicle to stop, the driver did not pay any heed. Therefore, the police party chased the vehicle and managed to get hold of it.

The authorized officer, thereafter, arranged two local witnesses and informed the IIC to depute a Gazetted Officer for search of the accused persons, who exercised their option as such. After observing all necessary formalities, the vehicle and the accused persons were searched. Seven jari bags containing contraband ganja weighing 105 KGs 635 grams were recovered from the vehicle, which were collected, seized and sealed at the spot after drawing the samples by the authorized officer.

The accused persons were thereafter produced before the IIC, who arrested them and a case was registered. Upon completion of the investigation, a chargesheet was submitted under Sections 20(b)(ii)-C/29 of the NDPS Act and they were put to trial. After examining the evidence on record, the Special Judge convicted the accused persons and sentenced them. Being aggrieved by the said order, the appellants had approached the High Court.

Contentions of the Appellants

Mr. Gopal Krishna Behera, counsel for the petitioners contended that Section 42 of the NDPS Act was not complied with as there is no evidence as to who received the prior information and on what basis the so-called search and seizure was carried out by the authorized officer.

He further submitted that the requirement of Section 55 was also not complied with, inasmuch as the seized articles were not re-sealed by the I.O. at the time of their receipt in the Malkhana. There is also no evidence as to what happened in between the date of seizure and the date on which the sample was sent for chemical analysis.

Contentions of the Respondent

Mr. Priyabrata Tripathy, Additional Standing Counsel for the State submitted that the appellants have raised grounds which merely suggest minor discrepancies, which are hyper-technical and hypothetical in nature. It was further contended that all necessary formalities of search, seizure and custody of the contraband were fully complied with and therefore, the impugned judgment does not warrant any interference.

Court's Observations

The Court noted the submission of the authorised officer who stated that no 'command certificate' was issued to him by the IIC for patrolling duty at Antabara area, where the contraband was seized. Further, during the cross-examination, he admitted that as per the oral direction of the IIC, he went to the spot to detect the case.

Again, the Court noted that the IIC, in his deposition, did not whisper a word about sending information through telephonic message or by any other means to the authorised officer. So, the Bench was sceptical as to from where did the information regarding transportation of the contraband emanate. Thus, it observed,

"This is a serious gap in the evidence, which learned Special Judge appears to have overlooked. Reading of the impugned judgment reveals that while reiterating the legislative intent of Section 42, learned Special Judge has not considered the above referred discrepancy in the evidence of P.W.-7 and P.W.-9 regarding the receipt of information of transportation of contraband ganja. The so called station diary entry made by the IIC has not been spoken of by any of the other witnesses much less by P.Ws.-7 or 9. All this raises reasonable doubt as regards the sanctity of the procedure adopted by the raiding party."

The Court further highlighted that the statutory intent behind Section 55 is to ensure that the seized article is sealed and kept in safe custody till its production before the Special Court. This was engrafted in the statute keeping in view the stringent provisions of the legislation and to ensure a fair and transparent procedure before a person is convicted.

However, after reading the testimony of the authorised officer, the Court was of the opinion that he has stated absolutely nothing as regards sealing of the seized packets. Further the IIC stated that he re-seized the seized articles, but he also did not say anything about resealing of the seized packets.

The Court, therefore, concluded that the Special Judge has proceeded on an erroneous basis. It further rebuked the Judge for overlooking the critical gaps in the evidence on record and for citing numerous case laws mechanically and unnecessarily, which did not have any referential value in the case at hand.

In the instant case, the Court held, there is a serious violation of the mandatory stipulations as prescribed under Sections 42 and 55 of the NDPS Act. Hence, it allowed the appeal setting aside the judgment rendered by the Special Judge, finding it unsustainable in the eyes of law.

Case Title: Suraj Bahadur & Anr. v. State of Odisha

Case No.: CRLA No. 549 of 2015

Judgment Dated: 5^th December 2022

Coram: Sashikanta Mishra, J.

Counsel for the Appellants: Mr. Gopal Krishna Behera & Mr. D.R. Mishra, Advocates

Counsel for the Respondent: Mr. Priyabrata Tripathy, Additional Standing Counsel

Citation: 2022 LiveLaw (Ori) 164