State of Orissa Vs. Sitansu Sekhar Kanungo
EmailAppeal: Criminal Appeal No. 282 of 1996
Crl.A.No. 968/2002
Arising out of SLP (Crl.) No. 4178/2002 (Crl. M.P. No. 4970/1996)
Petitioner: State of Orissa
Respondent: Sitansu Sekhar Kanungo
Apeal: Criminal Appeal No. 282 of 1996
Crl.A.No. 968/2002
Arising out of SLP (Crl.) No. 4178/2002 (Crl. M.P. No. 4970/1996)
Judges: U.C. Banerjee & B.N. Agrawal, JJ.
Date of Judgment: Sep 17, 2002
Head Note:
CRIMINAL LAW
NDPS Act, 1985
Sections 21, 57 with Evidence Act, 1872 – Section 3 – Conviction – Validity – Seizure of brown sugar – Seizure list carrying particulars of case, FIR number and name of police station – Malkhana register not produced – No evidence to show that seized articles were kept at that police station – No reason for non production of Malkhana register. Held that acquittal by High Court was on factual score and no perversity is shown. Hence, No interference.
Held:
The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgement of the FIR and as such question of mention of the FIR no. in the seizure lists would not arise at all. But in the contextual facts, the indication of the case number in the seizure lists has resulted to a manipulation in the document which is not permissible under the law. (Para 4)
JUDGEMENT:
ORDER
Criminal Appeal No. 282 of 1996
1. Order of acquittal in the matter of an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short ‘the Act’) is under challenge in this appeal.
2. The contextual facts depict that the respondent-accused faced trial for allegedly having committed the offence punishable under section 21 of the Act. He was found guilty and convicted by the learned additional sessions judge, Rourkela in sessions trial no. 151/15 of 1993-94 and was sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. one lakh, and a further period of two years’ rigorous imprisonment, in default. The accusation which led to the trial of the accused relates to the seizure of 0.04 gm. brown sugar/heroin wrapped in a paper inside a match box on 31.1.1993. When the accused was searched and the contraband article was recovered, he had no satisfactory explanation to offer for possession of the same. The usual formalities were complied with. At the time of the trial, the accused pleaded innocence and took the plea that on 27th January, 1993 at about 3.30 p.m. he had hot exchange of words with one Chittranjan Mohanty and after such quarrel, they were separated. But on the same day at about 5.30 p.m., when he was in his house some police officials attached to Uditnagar out-post brought him to the outpost and detained him therein and on 28th January, 1993, they obtained his signature on a blank paper by threatening him and later on took him to the plant-site police station wherefrom he was taken to the court on 1st February, 1993 on false accusations. It was the case of the accused that the local police officer was the classmate of the said Chittranjan Mohanty who had informed about the quarrel to the superintendent of police on whose direction he was arrested and falsely implicated in the case. On consideration of the evidence on record, the learned sessions judge thought it fit to award the sentence, as noticed above, and thereafter the matter was taken before the High Court by way of first appeal.
3. The High Court, in a rather detailed judgment, stated that the vital question was whether necessary safeguards have been observed relating to the safe custody of articles alleged to have been seized and thus questioned the validity of seizure. Admittedly, the seizure was made on 31st January, 1993 and the articles seized were produced before the learned SDJM on 15.4.1993. The seizure lists related to collected samples of brown sugar/heroin, the place of seizure mentioned to be power house road, park area, Rourkela and the seizure lists were prepared on 31st January, 1993 at about 7.15 p.m. and 7.30 p.m. It has been argued before the High Court that in the seizure lists, there is a reference to the plant-site police station case no. 43 of 1993 which, in the normal course of events, should not have been recorded and as such seizure lists became suspect. The High Court, however, did not find it convenient to deal with the matter on the ground that it may not be appropriate to deal with the said plea for the first time in appeal. The High Court, however, placed strong reliance on the defence submission of non-production of the malkhana register. On this ground, the High Court recorded that the malkhana register has not been tendered in evidence and acceptance of the oral statement of PW5 that the articles were in the police malkhana of plant-site police station and nothing else is available on record would not arise. Significantly however, no reason whatsoever has been ascribed as to why the malkhana register could not be produced thereby exposed to the adverse presumption under the Evidence Act that in the event of its production, it would have thrown sufficient light to the detriment of the respondents in the matter. The High Court, in its order (being impugned) noted that even no official attached to the plant-site police station has been examined to further the stand that the seized articles were kept in the plant-site police station. PW5, the High Court noted, has not stated that he had deposited the articles in the malkhana of the plant-site police station and there is thus a vital omission about the custody of articles and it is on this score, the High Court thought it fit that the court cannot be a silent spectator while justice is being trampled by inept handling of the case. It further held that in the case at hand, the non-production of the malkhana register being one of the vital missing links, the other factors highlighted above coupled with the non-production of the malkhana register have given a fatality to the prosecution case.
4. The learned advocate appearing in support of the appeal, however rather confidently stated that since the provisions of section 57 of the Act are now settled to be only directory and not mandatory in nature, the question of non-production of the malkhana register though vital, but the success of a case does not and cannot depend upon it. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. At the first blush, the arguments seem to be rather convincing but on a closure scrutiny, however, it lost its efficacy by reason of the fact of there being no factual support therefor. The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgement of the FIR and as such question of mention of the FIR no. in the seizure lists would not arise at all. But in the contextual facts, the indication of the case number in the seizure lists has resulted in the submission of the learned advocate for the defence before the High Court as also before this Court that this extra noting on the seizure lists cannot but be ascribed to be a manipulation in the document which is not permissible under the law. The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the court since in the last paragraph, the High Court did speak of “other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case’. This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt
that there would be justice trampled if an order is passed in favour of the prosecution.
5. It is now well settled that under Article 136 of the Constitution, the apex court would not be authorised or entitled to go into the issue of facts unless there is existing perversity on the factual score. We however, do not find any such perverse element available in the judgment warranting intervention of this Court under Article 136 of the Constitution.
6. On the wake of the aforesaid, this appeal therefore, fails and is, thus, dismissed. As regards the issue involved under section 57 of the Act as to whether the same is directory or mandatory in nature, we do not express any opinion thereon and the issue is left open.
7. Bail bonds shall stand discharged.
Crl. A. No. 968/2002
@ SLP (Crl.) No. 178/2002 (Crl. M.P. No. 4970/1996)
8. Delay condoned. Leave granted.
9. Without going into the question of law involved herein as noticed in the earlier judgment in 282 of 1996 as regards provisions as contained in section 57 of the Act, the appeal cannot succeed for the self same reasons as contained in Crl. A. 282/1996, since the same relates to the factual score and upon appraisal of the same, the High Court has dealt with the matter in a manner appropriate without any interference from the apex court.
10. The appeal, therefore, fails and is dismissed.
Criminal Appeal No. 282 of 1996
1. Order of acquittal in the matter of an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short ‘the Act’) is under challenge in this appeal.
2. The contextual facts depict that the respondent-accused faced trial for allegedly having committed the offence punishable under section 21 of the Act. He was found guilty and convicted by the learned additional sessions judge, Rourkela in sessions trial no. 151/15 of 1993-94 and was sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. one lakh, and a further period of two years’ rigorous imprisonment, in default. The accusation which led to the trial of the accused relates to the seizure of 0.04 gm. brown sugar/heroin wrapped in a paper inside a match box on 31.1.1993. When the accused was searched and the contraband article was recovered, he had no satisfactory explanation to offer for possession of the same. The usual formalities were complied with. At the time of the trial, the accused pleaded innocence and took the plea that on 27th January, 1993 at about 3.30 p.m. he had hot exchange of words with one Chittranjan Mohanty and after such quarrel, they were separated. But on the same day at about 5.30 p.m., when he was in his house some police officials attached to Uditnagar out-post brought him to the outpost and detained him therein and on 28th January, 1993, they obtained his signature on a blank paper by threatening him and later on took him to the plant-site police station wherefrom he was taken to the court on 1st February, 1993 on false accusations. It was the case of the accused that the local police officer was the classmate of the said Chittranjan Mohanty who had informed about the quarrel to the superintendent of police on whose direction he was arrested and falsely implicated in the case. On consideration of the evidence on record, the learned sessions judge thought it fit to award the sentence, as noticed above, and thereafter the matter was taken before the High Court by way of first appeal.
3. The High Court, in a rather detailed judgment, stated that the vital question was whether necessary safeguards have been observed relating to the safe custody of articles alleged to have been seized and thus questioned the validity of seizure. Admittedly, the seizure was made on 31st January, 1993 and the articles seized were produced before the learned SDJM on 15.4.1993. The seizure lists related to collected samples of brown sugar/heroin, the place of seizure mentioned to be power house road, park area, Rourkela and the seizure lists were prepared on 31st January, 1993 at about 7.15 p.m. and 7.30 p.m. It has been argued before the High Court that in the seizure lists, there is a reference to the plant-site police station case no. 43 of 1993 which, in the normal course of events, should not have been recorded and as such seizure lists became suspect. The High Court, however, did not find it convenient to deal with the matter on the ground that it may not be appropriate to deal with the said plea for the first time in appeal. The High Court, however, placed strong reliance on the defence submission of non-production of the malkhana register. On this ground, the High Court recorded that the malkhana register has not been tendered in evidence and acceptance of the oral statement of PW5 that the articles were in the police malkhana of plant-site police station and nothing else is available on record would not arise. Significantly however, no reason whatsoever has been ascribed as to why the malkhana register could not be produced thereby exposed to the adverse presumption under the Evidence Act that in the event of its production, it would have thrown sufficient light to the detriment of the respondents in the matter. The High Court, in its order (being impugned) noted that even no official attached to the plant-site police station has been examined to further the stand that the seized articles were kept in the plant-site police station. PW5, the High Court noted, has not stated that he had deposited the articles in the malkhana of the plant-site police station and there is thus a vital omission about the custody of articles and it is on this score, the High Court thought it fit that the court cannot be a silent spectator while justice is being trampled by inept handling of the case. It further held that in the case at hand, the non-production of the malkhana register being one of the vital missing links, the other factors highlighted above coupled with the non-production of the malkhana register have given a fatality to the prosecution case.
4. The learned advocate appearing in support of the appeal, however rather confidently stated that since the provisions of section 57 of the Act are now settled to be only directory and not mandatory in nature, the question of non-production of the malkhana register though vital, but the success of a case does not and cannot depend upon it. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. At the first blush, the arguments seem to be rather convincing but on a closure scrutiny, however, it lost its efficacy by reason of the fact of there being no factual support therefor. The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgement of the FIR and as such question of mention of the FIR no. in the seizure lists would not arise at all. But in the contextual facts, the indication of the case number in the seizure lists has resulted in the submission of the learned advocate for the defence before the High Court as also before this Court that this extra noting on the seizure lists cannot but be ascribed to be a manipulation in the document which is not permissible under the law. The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the court since in the last paragraph, the High Court did speak of “other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case’. This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt
that there would be justice trampled if an order is passed in favour of the prosecution.
5. It is now well settled that under Article 136 of the Constitution, the apex court would not be authorised or entitled to go into the issue of facts unless there is existing perversity on the factual score. We however, do not find any such perverse element available in the judgment warranting intervention of this Court under Article 136 of the Constitution.
6. On the wake of the aforesaid, this appeal therefore, fails and is, thus, dismissed. As regards the issue involved under section 57 of the Act as to whether the same is directory or mandatory in nature, we do not express any opinion thereon and the issue is left open.
7. Bail bonds shall stand discharged.
Crl. A. No. 968/2002
@ SLP (Crl.) No. 178/2002 (Crl. M.P. No. 4970/1996)
8. Delay condoned. Leave granted.
9. Without going into the question of law involved herein as noticed in the earlier judgment in 282 of 1996 as regards provisions as contained in section 57 of the Act, the appeal cannot succeed for the self same reasons as contained in Crl. A. 282/1996, since the same relates to the factual score and upon appraisal of the same, the High Court has dealt with the matter in a manner appropriate without any interference from the apex court.
10. The appeal, therefore, fails and is dismissed.
