The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 176 of 1998 (In the matter of an application under Section 374 (2) of Criminal Procedure Code) Smt. Kuntala Barada ……. Appellant -Versus- State ……. Respondent For the Appellant : Mr. Biswa Kumar Mishra, Amicus Curiae For the Respondent : Mr. S.J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.10.2025 : Date of Judgment: 28.10.2025 S.S. Mishra, J. The sole appellant by filing the present appeal has assailed the judgment of conviction and order of sentence dated 05.08.1998 passed by the learned Special Judge, Ganjam, Berhampur in G.R. Case No. 45/1997 (N), whereby she has been convicted for commission of offence under Sections 20(b)(i) of the N.D.P.S. Act and, thereby, sentencing her to undergo R.I. for one year and to pay a fine of Rs.2,000/- (rupees two thousand), in default to undergo R.I. for a further period of six months. 2. The present appeal is pending since 1998. When the matter was listed for hearing, consistently none appeared for the appellant.
Legal Reasoning
Therefore, Mr. Biswa Kumar Mishra, who was present in Court, was requested by the Court to assist in the matter as an Amicus Curiae and vide order dated 14.10.2025, he has been appointed as an Amicus Curiae and he rendered his effective assistance in the matter. 3. Heard Mr. Biswa Kumar Mishra, learned Amicus Curiae for the appellant and Mr. S.J. Mohanty, learned Additional Standing Counsel for the State. 4. The prosecution case in brief is that on 20.09.1997 at about 9 P.M. while the police officers of Town P.S, Berhampur were performing patrol duty in the old bus-stand area of Berhampur, they found the accused sitting on a cement bench with a gunny bag near the ticket Page 2 of 12 counter of old bus-stand. Suspecting that she was carrying contraband ganja in that gunny bag, the police officers called the local witnesses, one lady police officer and in their presence, they first ascertained the name and address of the accused and told her that they intend to search the gunny bag and that if she so desires the search would be conducted in presence of the Magistrate/Gazetted, Officer. The accused did not insist for presence of a Magistrate/Gazetted Officer and gave her consent in writing to be searched by the police officer. The police officer then opened the bag and found ganja stock in it. On weighment, it was found that 9 kg. 500 grams of ganja were there in that bag. The police S.I. In- charge then drew two samples of fifty grams each from that ganja stock and kept each sample in a sealed packet and obtained the signatures of the witnesses on those packets. He then kept the rest ganja in the gunny bag and sealed that gunny bag. The seized articles, samples and the accused were brought to the Town P.S, where the Inspector-in-Charge took over the further investigation and during the course of such investigation; he sent one of the sample packets through the court to the R.F.S.L, Berhampur for chemical examination. The R.F.S.L. authorities Page 3 of 12 after examining the sample reported that the samples were cannabis (Ganja). With all these materials at hand, prosecution was launched against the accused-appellant under section 20(b)(i) of NDPS Act. 5. On the basis of the aforementioned allegations, investigation was conducted and charge sheet was filed and charge was framed against the appellant for commission of offence under Section 20(b)(i) of the N.D.P.S. Act and on her stance of complete denial and claimed for trial, she was put to trial. 6. In order to establish the charges, the prosecution examined six witnesses. Out of them, P.W.1 was the local independent witnesses, in whose presence search, seizure, sampling, weighment were done. P.W.2 was the lady police officer, who was called from the Mahila P.S., Berhampur to assist in the search and seizure. P.W.3 was the Police S.I., whereas P.W.4 was the then A.S.I. of Town P.S., who detected the accused during the course of patrolling duty. P.W.5 was the S.I. of Police, who was in-charge of the Malkhana of Town P.S. and kept the seized articles and samples in his custody before sending it to the court. Page 4 of 12 P.W.6 was the Inspector-in-Charge of Town P.S., who took over the investigation from P.W.3 and submitted the charge sheet. 7. Relying upon the testimony of P.Ws. 1, 3 and 4, the learned trial court recorded the following findings:- “8. According to P.W.3, after effecting the search and seizure, he brought the seized gunny bag M.O.III, the sample packets and the accused to the Town P.S. and submitted a written report (Ext.4) to the I.I.C. and the I.I.C. took charge of the investigation. P.W.6, the I.I.C. says that after receiving the report, the seized articles and samples from P.W.3, he registered P.S. Case No. 183/97, resealed the gunny bag and the sample packets with his own seal and then made over these articles to P.W.5 for their safé custody in the P.S. Malkhana. He says that he forwarded the accused to the court and requested the S.D.J.M, to send one of the samples to the R.F.S.L. Berhampur for chemical examination. The relevant forwarding memo of the S.D.J. M. is Ext.6 and the report of the Asst. Director, R.F.S.L. is Ext.7. According to Ext.7, the sample articles was found to be cannabis, normally known as ganja. P.W.5 the officer who was incharge of the Malkhana says that he received the seized ganja and the sample packets, kept them in the malkhana and sent them to the court at the earliest opportunity, but the court was closed and so on the next day again sent it to the court. The second sample packet was also identified by P.W.1 as M.O.I. P.W.1 produced the brass seal, which was in his zima and it was marked as M.O.II. Page 5 of 12 The accused submits that the seized articles and sample were not kept in proper custody, was not sent to the court in time and the higher authority was not informed about the detection and because of these lacuna the prosecution case must fail. Regarding the safe custody, the evidence of P.Ws. 3,5 and 6 are relevant. P.W.3 says that soon-after the seizure and sampling, he brought the accused and those articles to the P.S. and produced them before the I.I.C. along with the written report. The I.I.C. says that immediately after receipt of the articles and the written report, he resealed the gunny bag and sample packets and handed it over to the police officer who was incharge of the Malkhana for the safe custody of the articles and for making entry in the Malkhana register. P.W.5 says that after receiving these articles from P.W.6 he made entries in the Malkhana Register and sent those articles to the court, but it was a Sunday and the court was closed, so the constable brought back those articles and on the next day he again sent the articles to the court and it was accepted by the court. There is no evidence to show that the seized gunny bag and the samples were not kept in safe custody and there was any manipulation. The evidence of P.Ws. 3, 5 and 6 clearly prove that the seized materials and samples were kept in proper custody and were sent to the court there was absolutely no chance of promptly and manipulation. It is also stated that soon after the registration of the case, the report was sent to the Suptd. of Police, Berhampur who is the higher authority about the detection and seizure of ganja from the accused. The copy of the said report has been proved as Ext.3 The statutory formalities were therefore complied with. 9. The defence advocate submits that after receiving the information that the accused was in possession of ganja, Page 6 of 12 P.W.3 did not reduce the information into writing and therefore, the provisions of sec.42 of the N.D.P.S. Act was violated. P.Ws. 3 and 4 have clearly said that during the course of their patrol duty at old bus stand area they suddenly got information that the accused was in possession of ganja in the, gunny bag and thereafter they informed the S.P. and the I.I.C. and called a lady police. When they got the information at the spot, there was no scope for them to reduce the information into writing. The very fact that they immediately intimated the superior authority and took prompt steps by calling local witnesses and a lady police officer shows that the provisions of sec. 42 was not violated.” 8. Aggrieved by the findings recorded by the learned trial court, which led to her conviction and sentence, the present appeal has been preferred by the appellant. 9. Learned Amicus Curiae, by taking me to the evidence on record in detail, has submitted that in the present case the procedural requirements under Section 42 of the NDPS Act have not been complied. He has also submitted that the accused-appellant being an illiterate lady had no knowledge regarding the implication of the option which was allegedly given to her during the search and seizure, as per Section 50 of the NDPS Act. Therefore, it was obligatory on the part of the Investigating Page 7 of 12 Agency to follow the procedure under Section 50 of the NDPS Act in presence of the witnesses. He emphatically relied upon Clasue-5 of Section 50 of the NDPS Act, which is reproduced for convenience of ready reference:- “50. Conditions under which search of persons shall be conducted- (1) xxx xxx xxx xxx xxx xxx xxx (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. xxx xxx xxx xxx” 10. Mr. Mishra, has also pointed out that reading of the evidences of all the witnesses would indicate that the recovery of alleged contraband from the appellant is also doubtful, as one of the witnesses says that the gunny bag containing contraband articles was lying in the left side of the bench where the appellant was sitting, whereas the other witness says Page 8 of 12 that the appellant was sitting in the right side. P.W.4 has categorically stated in his cross examination that the accused was sitting on a cement bench near the ticket counter alone. The gunny bag was on the bench on her right side, whereas P.W.3’s version is completely contradictory to the version of P.W.4. P.W.3 stated that the accused was holding the bag. Apart from the aforementioned contradiction pointed out by the learned Amicus Curiae, he has also taken me to the documentary evidence to substantiate his argument regarding non-compliance of statutory safeguards, as provided under the NDPS Act. 11. On the contrary, Mr. Mohanty, learned Additional Standing Counsel for the State defended the impugned judgment stating that barring minor contradictions, the evidences of all the prosecution witnesses are trustworthy and rightly reliable. He submitted that the witnesses have sustained extensive cross examination by the defence but they remained firm on their version. He has also taken me to various exhibits so as to justify the findings recorded by the learned trial court. Page 9 of 12 12. I have carefully gone through the evidences on record. Conjoint reading of the evidences of all the witnesses leads to the conclusion that on 20.09.1997 at about 6.30 P.M. the appellant was apprehended near the booking counter of the Berhampur Bus stand. She was sitting in a cement chair near the booking counter carrying a gunny bag. P.W.3 on information went to the spot along with P.W.4 and other staff and apprehended her. The gunny bag containing 9 kg.500 grams of contraband ganja, was seized from the possession of the appellant. After following the due procedural requirements, the sample drawn from the seized ganja was sent for chemical examination. The chemical examination report being Ext.7 was also placed on record, which shows that the seized contraband flowering and fruiting tops of cannabis plant. The evidence of all the witnesses are consistent barring minor contradictions and their testimony completes the chain of event. The statutory non-compliance, as complained of by the counsel for the appellant, is also not coming to the fore on record. Therefore, I am in agreement with the findings recorded by the learned trial court, which is culmination of right appreciation of the evidence brought on record by Page 10 of 12 the prosecution against the appellant. Hence, the conviction recorded by the learned trial court finding the appellant guilty for offence under Section 20(b)(i) of the N.D.P.S. Act is affirmative. 13. At this stage, learned Amicus Curiae appearing for the appellant submitted that the appellant was a young lady aged about 30 years at the time of incident in the year 1997 and at present she is 58 years of age and she has already undergone incarceration for a period of four months three days. Therefore, he prays that a lenient view may be taken against the appellant. 14. Regard being had to the fact that the appellant is a lady aged about 58 years and she has already undergone custody for a period of four months and three days, I am inclined to reduce and modify the sentence to that of the sentence the appellant has already undergone. However, the fine amount is enhanced to Rs.5,000/- (rupees five thousand), in default to deposit the fine amount, the appellant shall undergo R.I. for one month. 15. Accordingly, the Criminal Appeal is partly allowed. Page 11 of 12 16. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. Biswa Kumar Mishra, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 28th October, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 29-Oct-2025 10:46:15 Page 12 of 12