STATE OF ORISSAversusRAJENDRA TRIPATHY AND ORS.

                         STATE OF ORISSA                                A
                                  V.

                RAJENDRA TRIPATHY AND ORS.

                            MAY 6, 2004

       (DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                       .B

      Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 18,
21, 41, 42 and 50-Seizure of heroin from accused during personal
search-Trial Court convicted the accused and sentenced them to
imprisonment and fine-High Court acquitted the accused on ground of C
correction of name of the accused in search memo and non-expla_nation
of safe custody of seized articles by prosecution-Held, on facts and
evidence, correction of name of the accused a'!d safe custody of seized
articles properly explain~d by prosecution-Hence, acquittal of accused
reversed and accused directed to surrender.
                                                                        D
     Respondents were found in possession of heroin in polythene jari
packets during personal search conducted by Excise staff. The
respondents were prosecuted for offence under, section 21 of the
Narcotic Drugs and Psychotropic Substances Act, 198S for unlawful
possession of heroin. The respondents contended before trial court that E
they were falsely implicated in the offence and that the provisions
under sections 41, 42 and SO of the Act were not complied with by the
prosecution. The trial court rejected the contentions of the respondents
and found them guilty under sections 18 and 21 of the Act and
sentenced them to 10 years rigorous imprisonment and a fine of F
Rs.1,00,000 each with default stipulations. The High Court, in appeal,
observed that the alleged non-compliance of sections 41, 42 and SO of
the Act were of no consequence but acquitted the respondents on the
ground that there was a correction of the names of the respondents in
search memo and that the safe custody of articles after seizure were G
not established by the prosecution.

     In appeal to the Court, the appellant-State contended that PW S,
the Sub-Inspector of Excise, in his statement clearly indicated the cause
of correcting the name of one of the respondents and that the articles
were kept in safe custody in control room after seizure.                  H
                                  387
    388                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A        The respondents contended that the documents were manipulated
    by the prosecution and that there was no proper explanation regarding
    the custody of the articles after seizure.

          Allowing the appeals, the Court

B       HELD: 1.1. The evidence on record clearly shows thatthe forwarding
  report clearly indicated that the articles were being produced before the
  Magistrate. The order sheet of the Magistrate shows that because he was
  busy he rlirected that the articles should be produced on 10.8.1992 for
  the purpose of collecting samples. The High Court seems to have
C proceeded on the basis that there is nothing in the order to show that the
  articles were really produced. The conclusion appears to have been
  arrived at without a proper reading of the order. In the order itself it has
  been clearly mentioned that in the forwarding report the investigating
  officer had requested to draw the sample for being sent for chemical
0 examination. The Court nowhere records that the articles were not
  produced and therefore samples could not be drawn. On the other hand
  due to paucity of time, the Court itself adjourned the matter and directed
  that the case be taken up on 10.8.1992 for the purpose of drawing
  samples. The evidence of P.W.5 also shows that the articles were kept in
E safe custody in the office of the Excise Department under lock and key
  till 10.8.1992. There was even no suggestion given to P.W.5 that the
  articles were not kept in safe or proper custody. That being so, the
  decision of the High Court doubting the safe custody is clearly
  unsustainable. [393-D-E, G-H; 394-A-B[

F         State of Orissa v. Kanduri, Sahoo, [2004[ l SCC 337, referred to.

         1.2. The necessity for the correction of name has been clearly
    explained 'by PWs I and' 5. The trial court accepted this explanation.
    But the High Court, without any justifiable reason, disbelieved the
G   explanation offered by the witnesses regarding correction of name. The
    factors which have weighed with the High Court for directing acquittal
    do not have any supportable basis. Inevitable conclusion is that the
    prosecution has established the accusation against the respondents,
    and the trial court had rightly convicted them. The High Court's
H   judgment reversing the conviction is indefensible. [394-D-F[
            STATE v. RAJENDRA TRIPATHY [PASAYAT, J.]                    389

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. A
181-182 of 1999.

     From the Judgment and Order dated 4.12.96 of the Orissa High Court
in Crl. A: Nos. 195 and 309 of 1994.

     Jana Kalyan Das for the Appellant.                                       B

     Rajesh for the Respondent Nos. 1-2.

     Mrs. Sarla Chandra (NP) for the Respondent No. 3.

     The Judgment of the Court was delivered by
                                                                              c
     ARIJIT PASAYAT, J. : The respondents faced trial for alleged
commission of offences punishable under Sections 18 and 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the 'Act')
for alleged illegal possession of heroin. The trial court found the respondents D
guilty and sentenced. each to undergo rigorous imprisonment for I 0 years
and to pay a fine of Rs. 1,00,000 each and in default to undergo rigorous
imprisonment for two years. By the impugned judgment the High Court
set aside the conviction and consequential sentence holding that the
accusations haye not been established.                                          E
      The prosecution version in a nutshell is as follows:

        On 6.8.1992 the then Sub-Inspector of Excise of Cuttack Sadar was
patrolling with his staff at Balikuda and Kazipatna area under Cuttack
Sadar Police Station. While patrolling he found accused Deba Prasad Barik F
who was proceeding towards Balikuda and Gopalpur near the other side
of the Level crossing ofBalikuda railway station. His movement was found
to be suspicious. So the S.I. of Excise (P.W.5) along with his staff
proceeded in a vehicle and detained him. P. W.5 in presence of the .
witnesses who were available at the spot, disclosed his identity and his G
intention to search accused Deba as he was suspected to have contraband
articles in his possession. Thereafter P. W.5 gave option to him as to
whether he wanted to go to a Magistrate or a Gazetted Officer for taking
his personal search or he had no objection to be searched by him (P.W.5).
As the accused Deba had no objection to be searched by P.W. 5, his H
    390                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A personal search was taken in presence ef the witnesses after observing all
  requisite formalities. During search, one polythin white coloured jari
  packet containing some powder was recovered from his right side pant
  pocket. P.W. 5 suspected the powder to be heroin. So he took 10 ml. of
  powder from the seized article and tested the same by means of Drug
B Testing kit which was carried with him. From the initial test as the colour
  of the powder turned to rose and thereafter violet and after doing some
  other chemical tests and from his service experience, he suspected the
  powder to be heroin. As possession of heroin powder was unlawful, the
  jari packet (M.0.1.) was seized in presence of witnesses. Thereafter it was
C kept in an envelop with identification mark as 'A'. The envelop was sealed
  in presence of the witnesses by the personal seal of P.W.5 and by paper
  seal bearing the signature of the witnesses as well as of the accused. The
  same was seized under a seizure list in the presence of the witnesses also.
  A copy of the seizure list was handed over to accused Deba, who was
  arrested.
D
        During interrogation of accused Deba, he disclosed the names of
  other accused Sitaram Tripathy of Balikuda to have supplied heroin to him.
  So P. W.5 immediately proceeded with accused Deba towards the village
  Balikuda in search of accused Sitaram Tripathy along with his staff. They
E reached near the rented house of accused Rajendra Tripathy who is the son
  of accused Sitaram Tripathy on the road close to the house. At the sight
  of the Excise staff, accused Rajendra started running towards his house,
  but he was chased and was apprehended in front of his house where the
  other accused Sitaram was also standing. The witnesses who had attested
  the search, seizure for accused Deba also came there, P.W.5 again disclosed
F his identity and intention to both accused Rajendra and Sitaram that they
  are suspected to be possessing cont;·aband articles and asked them whether
  they wanted to be searched before a Gazetted Officer or a Magistrate or
  they had no objection if their personal search is taken by P. W.5 himself.
  Both accused Rajendra and Sitaram did not choose to go to the Magistrate
G or Gazetted Officer and consented for their personal search by P. W.5.
  Thereafter P. W.5 in presence of the witnesses, after observing all formalities
  of search, took the personal search of both accused Sitararn and Rajendra.
  During search one jari packet containing some powder was recovered from
  the right side pant pocket of accused Rajendra which he was wearing. On
H weighment it came to 5 grams. P.W.5 marked the said jari packet with
           STATE v. RAJENDRA TRIPATHY [PASAYAT, J.)                    391

identification·mark as 'B'. Thereafter during personal search of accused A
Sitaram similarly one jari packet containing some powder was recovered
from his right side pant pocket and after weighment it was found to be 11
grams. The said packets were marked with the identification marks as 'C'.
P.W. 5 conducted similar tests which were conducted earlier in case of ·
accused Deba, by taking I 0 in!. from each packets and after tests he was B
confirmed that the contents of the jari packets i.e. powder was heroin. Both
the jari packets were seized in presence of the witnesses and seizure list
was prepared and the packets were seized by means of brass and paper seal.
The house of the accused Sitaram was also searched and only one Balance
scale was recovered and no contraband articles were found in the house.
The Balance scale was also seized and thereafter both the accused persons C
Sitaram and Rajendra were arrested and forwarded to Court on 7.8.1992
along with other accused Deba. On that day a prayer was made to the Court
for sending the seized articles for chemical analysis. As the Court was hard
pressed for time and holidays intervened, the Court directed P.W.5 to
 preserve the seized articles in safe custody and he (P. W.5) as per the D
 direction of his superior officer kept the same in safe custody in his office
and thereafter by the order of the Court, it was sent for chemical analysis
 and it was subs~quently confirmed that the contents of the jari packets were
 heroin. The accused persons were prosecuted for having committed an
 offence punishable under Section 21 of the Act for unlawful possession E
 of heroin.

        The accused Sitaram took the plea that because he was an Inspector
of Police and had taken objection to the unlawful dealing of illicit distilled
liquor in the area under the control of main official witness, the investigating
officer of the case i.e. P.W.5, he was falsely implicated. He was forcefully F
dragged from the house, put in a vehicle and when his son, accused
Rajendra who is a college student protested, he was also forcibly taken to
the vehicle. The other accused Deba took the plea that he had gone to the
level crossing side to attend call of nature and while he was returning he
was detained by P.W. 5 who wanted him to be a witness in the case against G
other two persons. Since he refused he was falsely implicated. To
substantiate the accusations, six witnesses were examined by the prosecution
in support of its case. P.W. I was the Assistant Sub-Inspector of Excise
who was accompanied with P.W.5 who was the detaining officer. The
accused persons examined three witnesses to substantiate their plea of H
    392                SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.

A innocence. The trial court found the evidence of P.Ws. 1 and 5 to be
  credible and held that the plea of accused persons regarding non-compliance
  of the provisions of Sections 41, 42 and 50 of the Act were without
  substance. It was held that there was compliance of the requirements in law.
  In appeal, the High Court observed that the alleged non-compliance of
B Sections 41, 42 and 50 were really of no consequence, as the accused
  persons were entitled to acquittal because of two factors; firstly, there was
  correction in the search memo regarding the name of the persons from
  whose custody the contraband articles were found and secondly regarding
  the custody of these articles after seizure. Initially the name of one Kasinath
  Tripathy was written which was subsequently corrected to be Sitaram
C Tripathy. Further, though the seizure was purportedly made on 7.8.1992,
  till I 0.8.1992 the samples of contraband articles had not been collected.
  It was not established that the articles were in safe custody during
  the intervening period. The order sheet of the concerned Court does not
  show that the seized articles were actually produced. With the aforesaid
D observation the conviction and consequential sentence was set aside as
  noted above.

         In support of the appeal, learned counsel for the appellant-State
  submitted that after having found that the alleged contravention of
E provisions contained in Sections 42 and 50 were really of no consequence
  and in view of categorical finding that there was no contravention the High
  Court should not have interfered with the relevant conviction on untenable
  grounds. P.W.5 had clearly indicated as to why the name of Sitaram was
  required to be substituted in place of Kasinath Tripathy as was originally
  written. Further the evidence on record clearly shows that the contraband
F articles were produced before the Court alongwith the remand application.
  Forwarding report clearly indicates that the seized articles were produced
  along with accused persons. P. W. 5 had also categorically stated that the
  articles were kept in the safe custody in the control room. The samples were
  drawn according to the directions of the concerned magistrate. That being
G so the conclusions of the High Court are clearly unsustainable.
            In response learned counsel for the respondent Nos. I and 2
    submitted that the High Court has analysed the factual position and found
    that the documents were manipulated and there was no proper explanation
H   regarding the custody of the articles betwe.:n 7.8.1992 till 10.8.1992. That
           STATE v. RAJENDRA TRIPATHY [PASAYAT, J.]                      393

being so, the conclusions of the High court cannot be faulted.                 A
    There was no .appearance on behalf of the respondent No. 3 though
he was represented by counsel in this Court.

        It has to be noticed that before the trial Court and the High Court
the stand was taken by th~ accused persons alleging non-compliance of B
Sections 42 and 50 of the Act. The same was given up by the respondents
in this appeal and in our view rightly. Considering the time when search
and seizure was done, and the undisputed position that the detection was
made while the officers were on patrolling duty, Section 42 has no
application. Additionally the evidence of PWs. I & 5 clearly shows that C
the accused persons were given the liberty to be searched in the presence
of the prescribed officer and they did not choose to be searched by any
person other than P. W.5. Therefore the plea related to non-compliance of
Section 50 as raised during trial and before the High Court in addition to
the concession, plea regarding non-applicability of Sections 42 and 50 of D
the Act is also without any substance. The residual question is regarding
 custody of the contraband articles and corrections in seizure memo. The
evidence on record clearly shows that the forwarding report clearly
 indicated that the articles were being produced before the Magistrate. The
 order sheet of the Magistrate shows that because he was busy he directed E
 that the articles should be produced on I 0.8.1992 for the purpose of
 collecting samples.

       Relevant portion of the order reads as follows:

              "It is seen that the Investigating officer prays in his forwarding F
         report to draw the sample and to send the same for chemical
         examination. No time today. However, put up on 10.8.1992 for
         the purpose. The Investigating Officer is directed to come ready
         for drawing of the sample and for sending the same to F.S.L.,
         Bhubaneswar, for chemical examination."
                                                                               G
     The High Court seems to have proceeded on the basis that there is
nothing in the order to show that the articles were really produced. The
conclusion appears to have been arrived at witho.ut proper reading the
order. In the order itself it has been clearly mentioned that in the forwarding
report the investigating officer had requested to draw the sample for the H
    394                 SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A same being sent for chemical examination. The Court nowhere records that
    the articles were not produced and therefore samples could not be drawn.
    On the other hand due to paucity of time, the Court itself adjourned the
    matter and directed the case was to be taken up on 10.8.1992 for the
    purpose of drawing samples. The evidence of P.W.5 also shows that the
B   articles were kept in the safe custody in the office of the Excise Department
    under lock and key till 10.8.1992. There was even no suggestion given to
    P.W.5 that the articles were not kept in safe or proper custody. That being
    so, the decision of the High Court doubting the safe custody is clearly
    unsustainable. In almost similar factual backdrop, this Court had held the
    High Court's view to be untenable. (See State of Orissa v. Kanduri Sahoo,
C   [2004J 1 sec 337.

          The other factor which has weighed with the High Court is that there
    was correction of name in the seizure memo. P.Ws. I & 5 have clarified
    this aspect. it has been categorically stated that initially the name given by
D   accused no. 3 was Kasinath Tripathy. But on persistent questioning, it was
    subsequently stated that the real name was Sitaram Tripathy. That being
    so, the necessity for the correction has been clearly explained. The trial
    court accepted this explanation. But the High Court without any justifiable
    reason disbelieved the explanation offered by the witnesses regarding
E   correction of name.

          The factors which have weighed with the High Court for directing
    acquittal do not have any supportable basis. Inevitable conclusion is that
    the prosecution has established the accusation against the respondents, and
    the trial court had rightly convicted them. The High Court's judgment
F   reversing the conviction is indefensible.

          The appeals are allowed. The judgment of the High Court is set aside
    and that of the lower Court is restored. The bail bonds of the respondents-
    accused persons shall stand cancelled and they are directed to surrender
G   to custody forthwith to serve remainder of sentences as imposed by the trial
    court.

    B.S.                                                       Appeals allowed.