STATE OF ORISSA versus RAJENDRA TRIPATHY AND ORS.

Citation: [2004] SUPP. 2 S.C.R. 387 · Decided: 06-05-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
B 
by the prosecution and that there was no proper explanation regarding 
the custody of the articles after seizure. 
Allowing the appeals, the Court 
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: Cri

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