Significant Judgments
JUSTICE P. PATNAIK
This appeal was filed challenging the judgment dated 05.12.2015 whereby the appellant had been convicted for the offences punishable under Section 20(b) (ii) (c) of the N.D.P.S. Act and had been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.50,000/-, in default of which the appellant was to undergo rigorous imprisonment for another year.
The appellant contended that the chemical examination report was a carbon copy and no original chemical examination report had been filed by the prosecution, hence it was not admissible in the eye of law. The Counsel for the State contended that the same was admissible under law as it had been proved by the Investigating Officer, as per Section 62 Explanation (2) of the Evidence Act, 1872. After considering the arguments from both sides, the Court noted that the original chemical examination had not seen the light of the day wherein the Investigation Officer had stated that the original chemical examination had been sent directly to the Court, however, no such original report was found in the Court’s record. In addition to that, the Court noted that in absence of the original report, no secondary evidence as per the Evidence Act had been led by the prosecution in that regard either.
The Court from the evidence of PW 11, who was the Sub Inspector of police and other witnesses, inferred that the investigating agency had not complied with the mandatory provision of Sections 50, 52 and 55 of the NDPA Act. Moreover, no gazetted officer or any Magistrate was present at the time of search and seizure, and no independent and seizure witnesses supported the prosecution case. The Court while relying on the judgement of Bahadur Singh v. State of M.P. & another 2002 (I) OLR SC 565, held that no conviction would lie on sole testimony of police witnesses and in event of lack of independent witnesses, the accused was entitled to benefit of doubt.Hence, the Court set aside the impugned judgement and acquitted the appellant.
The appellant had filed this appeal challenging the judgment dated 24.04.2018 wherebyhe had been convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, and in default of payment of fine was to undergo a further period of rigorous imprisonment for three months under each of the offences under Section 477-A, I.P.C. and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The appellant was accused of misappropriatingthe public money using false. The D.D.O (Executive Engineer) had neitherbeen arrayed as an accused nor as a charge sheet witness.
The appellant argued that the executive engineer being the D.D.O had cleared the bill. Moreover, the work was verified after two years of its completion. On considering the plea, the Court held that when the work was executed under the supervision of the executive engineer, who had not been arraigned as an accused, it could not be presumed that an excess amount was paid for the disputed work. In presence of such a material contradiction, the Court relied on the judgements of Birabar Sethi @ Birendra Sethi v. State of Orissa, 2012(53) OCR-319, LambodarPujari v. State of Orissa, 2017(68) OCR-836, State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh, 1974 3 SCC 277 etc. to accord the appellant,the benefit of doubt.
The Court further noted that the question of conspiracy or preparations of false vouchers by the accused persons were thus based on surmises and conjectures, thus, the appellant ought not to have been convicted under Section 13 of the Prevention of Corruption Act. Hence, the Court set aside and quashed the judgment of conviction and order of sentence dated 24.04.2018 and acquitted the appellant therefrom.
