The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.46 of 1997 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Nandi @ Nandakishore Das & another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Ms. Subhashree Sen, Amicus Curiae For the Respondent : Mrs. Sarita Maharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.08.2025 : Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal filed by the appellants under Section 374 of the Cr. P.C., is directed against the judgment and order dated 06.09.1996 passed by the learned Special Judge, Dhenkanal- Angul, Dhenkanal, in Special Case No.21 of 1994/Trial Case No.21 of 1994, whereby the learned trial Court has convicted each of the accused- appellants for the offence punishable under Section 20(b) of the N.D.P.S. Act and sentenced each of them to undergo R.I. for four years and to pay fine of Rs.5,000/- (Rupees five thousand), in default, to undergo further R.I. for one year each. 2. The present case is pending since 1997. On repeated calls on several occasions, none appeared for the appellants. Therefore, Miss Subhashree Sen, Advocate has been appointed as Amicus Curiae to assist the Court in this case. The present appeal was heard on 07.08.2025 and after hearing learned counsels for both the parties, judgment was reserved. The parties were directed to submit their respective written note of submissions. 3.
Legal Reasoning
Earlier, Mr. Gopal Krushna Mohanty, learned counsel was appearing for the appellants. On 18.09.2023, he had filed the written notes of submission. After hearing was concluded, Miss Subhashree Sen, learned Amicus Curiae has filed another written notes of submission, which has been taken on record. Page 2 of 19 4. Heard Ms. Subhashree Sen, learned Amicus Curiae appearing for the appellants and Mrs. Sarita Maharana, learned Additional Standing Counsel appearing for the State. 5. The prosecution case in brief and terse is that on 27.07.1994, when P.W.9, Rabindranath Sahu, the then S.I. of Excise (E.I. & E.B.), Angul, his staff along with P.W.3, the then C.I. of Police, Angul and Sri R.N. Deo, C.I. of Town Police Station, Angul were performing their duty at village Badakera, late A.K. Tripathy, the then Executive Magistrate, Angul was also with them with the A.P.R. force. At about 1 P.M., on receipt of the information from the reliable source that the accused Nandakishore Das was selling ganja in his house, they immediately proceeded to the spot and raided the house at Jakub. P.W.9 after observing all the formalities of search and seizure, when conducted the house search in presence of the two independent witnesses namely P.Ws. 1 and 2, he recovered 3 gunny bags containing ganja which were kept in a room having tiled roof. He also recovered another bag tied in the carrier of a moped which was contained ganja powder. On weighment, the ganja became 73 kgs. The ganja powder became 8 kgs. P.W.9 seized Page 3 of 19 the above ganja bags (M.O.I, II, III and IV), the moped (Bajaj M-80) (M.O.VII) along with its documents, one consumer card, one Driving License which had contained the photograph of accused Nanda Korhore Das, one alluminium weighing scale (M.O.V), some batakaras (M.O.VI) and one deer’s skin under the seizure list marked Ext.3. He also recovered cash of Rs.1,02,200/- in shape of currency notes of different denominations kept in a paper cartoon under the same seizure list (M.O. VIII). He kept all these articles in different sealed packets affixing his own monogram and paper slips. Before keeping the ganja packets in sealed packets, he collected samples from each gunny bag in presence of the Magistrate and the witnesses which he also kept in different sealed packets. Hence, the F.I.R. After investigation, charge sheet was filed and charges were framed of the offence under Section 20(b) of the N.D.P.S. Act. On the stance of denial by the accused, they were put to trial. 6. The prosecution in order to bring home charges examined total 9 witnesses. Out of whom, P.Ws.1 and 2 were two seizure witnesses, but since they did not support the prosecution case, the prosecution declared them as hostile witnesses. P.W.8 was the witness to the seizure, but has Page 4 of 19 also not supported the prosecution case. P.W.5 was the R.I., who had demarcated the house and homestead of the accused persons and prepared the sketch map marked as Ext.2 and rest of the witnesses were parties to the detection. When P.W.9, the S.I. of Excise, who conducted search and seizure, P.Ws.3 and 4 were two Police Officers present there at the time of raid and had witnessed the search and seizure. P.W.6 was the then Excise Constable, who supported the prosecution case. P.W.7 was the then Executive Magistrate, who was present with the A.P.R. force to maintain the law and order during the Excise raid. 7. The learned trial Court heavily relying on the testimonies of P.Ws. 3, 4, 6, 7 and 9, those who are the official witnesses, have come to the conclusion that the appellants are guilty of the offence punishable under Section 20 (b) of the N.D.P.S. Act. Accordingly, while convicting the appellants thereunder, sentenced them to undergo R.I. for four years and to pay fine of Rs.5,000/- (Rupees five thousand), in default, to undergo R.I. for a further period of one year. The appellants are seriously aggrieved by the findings recorded by the learned trial Court leading to Page 5 of 19 their conviction and accordingly, they have filed the present Criminal Appeal conjointly. 8. Ms. Subhashree Sen, learned Amicus Curiae appearing for the appellants seriously questioned the impugned judgment on various grounds particularly on the ground of non-compliance of the statutory safeguard provided under the N.D.P.S. Act. She contended as follows: (a) That, while disposing the case the learned trial Court has closed his eyes to the settle position of law regarding the compliance of Section 42 of the N.D.P.S Act, 1985. That law is well settled that non-compliance of Section 42 of the N.D.P.S Act, 1985 completely vitiates the prosecution has neither produced nor exhibited the information register or the extract of the information to prove the compliance of Section 42 of the N.D.P.S Act, 1985. the entire prosecution case. That (b) It is well settled by the Hon'ble Apex Court in a decision reported in 2009(84) OCR-183 that it is the duty of the Officer who has recovered the information while he was in patrolling duty or any other purpose, it is the duty of that officer to record the information in the information register and send a copy thereof to the that non- Official superior. She compliance of the sub-sections (1) and (2) of Section 42 of N.D.P.S Act, 1985 is impermissible. But delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of the N.D.P.S Act. If the information was received and the Police officer was in Police station with sufficient time to take action and if the Police officer fails to record in writing the information received or fails to send a copy thereof to the official superior, then it will further submits Page 6 of 19 be suspicious circumstance being a clear violation of Section 42 of the Act. The said proposition of law has also been reiterated by different Courts reported in: (i) (2009) 44 (SC)-183, (ii) 2022 (86) OCR-237, (iii) (2022), 88 OCR-56, (iv) (2019) 75, OCR-387, (v) (2021) 82 OCR (SC)-667. (c) In the case at hand, learned Special Judge while dealing with Section 42 of the N.D.P.S Act has come to a conclusion that no doubt there is a delay of one day in sending the information to his immediate superior authority but its seems that the delay has been explained. But no such explanation has been given by P.W.9 to explain the delay. Therefore, it is difficult so say that Section 42 of the N.D.P.S Act has not been complied with. That in this context, it is humbly submitted that in absence of any such explanation of delay, the learned Special Judge should have come to a conclusion that because of non-compliance of Section 42 of the N.D.P.S Act, 1985, the entire prosecution case is vitiated. (d) Similarly, while dealing with Section 55 of the N.D.P.S Act, 1985, it has been found by the learned Special Judge, Dhenkanal that undisputedly in the case at hand the seized articles were not kept in custody of any officer in charge of the Police Station. It is evident from the evidence of P.W.9 that he has kept the articles in his custody from the time of seizure till they were produced before the Special Court, Dhenkanal. When the seizure was made on dated 27.07.94, the seized articles were produced before the Special Court on dated 29.07.94. It is observed in the case law stated above that the provision of Section 55 is directory not mandatory. It is not being mandatory by keeping of the seized articles in his custody for two days only no adverse inference can be done against the case of the prosecution. The law is well settled that the purpose and object of Section 55 of the N.D.P.S Act, 1985 is to rule Page 7 of 19 out any possibility of tampering the sample as stringent provision with regard to the punishment for the offence under this act has been made. The sanctity of the sample therefore has to be proved by the Prosecution by leading through evidence.” She has also contended that, if the evidences of P.Ws.6, 7 and 9 are carefully evaluated, the discrepancies are writ large. The seizure of the contraband ganja is doubtful as well as the time of the seizure is also doubtful. 9. In the light of the submissions made, I have analysed the evidence on record. (a) P.W.1- Girish Sahu and P.W.2- Kalia Sahu and P.W.8- Chaitanya Naik were independent seizure witnesses. P.W.1 and P.W.2 have categorically stated that they have seen 2-3 bags lying on the village road in village Jukubu and they have seen those 3 bags M.O.1, M.O.2 and M.0.3 lying there and P.W.8 has stated in his evidence to have not seen any seizure from the house of the accused persons. (b) P.W.3-Jyoti Prakash Mohapatra (the then C.I. of Angul) stated in his evidence during the examination-in-chief that on 27.07.1994 as per Page 8 of 19 the direction of the S.P, Angul, he along with the O.I.C, Angul and other Police force accompanied P.W.9 to conduct the raid in village Jukubu, under Jarapada P.S at about 6 A.M and thereafter, P.W.9 the then S.I of Excise Sri R.N. Sahu identified the house of the accused and during the raid, the Excise staff recovered 4 bags of Ganja from the house of the accused but did not specifically stated from where the alleged Ganja was seized and similarly, P.W.3 also stated that the seized articles were not brought to the Police Station and the Excise S.I took the same to his office. P.W.3 also admitted in his cross-examination that he was outside the house and he cannot say from which room the Ganja bags were seized and he has not signed in the seizure list or on the seized articles. (c) Similarly, P.W.4 Rabindranath Deo (the then O.I.C, Angul P.S) has also stated in his examination-in-chief that on 27.04.94 after the raid, Excise S.I. took those articles along with the bags containing the cannabis (Ganja) to his office. P.W.4 further admitted in his cross- examination that they reached the village Jukubu at about 6.30 A.M in the morning and he was watching the situation from outside the house Page 9 of 19 and he did not go inside the house of the accused and he cannot say from which room ganja was seized and he has not signed in any seizure list as a witness. (d) P.W.6- Bishnu Charan Naik (the then Constable District Intelligence Bureau, Angul) stated in his examination-in-chief that on 27.04.94 at about 12 noon he accompanied the Executive Magistrate, Excise S.I. R.N Sahu and Police to village Jukubu and thereafter the raid was conducted. P.W.6 further admitted in his cross-examination that P.W.9- the then S.I of Excise & E.B. namely Sri R.N Sahu took the seizure articles to his office and the seized articles were produced before the Court on the next day on 28.04.1994. (e) P.W.7- Late Arun Kumar Tripathy was the then Executive Magistrate who was allegedly present along with A.P.R force to maintain law and order during the raid stated in his examination-in-chief that on dated 27.04.1994 he along with A.P.R force went to the village Jukubu and there the Excise Staff searched the house of the Appellant No.1 and recovered 7 bags of opium and cash of Rs.1 lakh and some Page 10 of 19 odd. P.W.7 further admitted in his cross-examination that on getting order on 26.07.94 he accompanied the A.P.R force on dated 27.04.1994 at about 4.30 A.M and the said raid was conducted at about 5.30 A.M and the raid was completed at about 8 A.M and further stated that he has not seen the actual seizure of articles and the place from which those articles was recovered (f) P.W.9- Rabindra Sahoo (the then S.I of Excise, E.I & E.B, Angul) who according to the Prosecution has conducted the search and seizure stated in his examination-in-chief that he along with A.P.R force and the Executive Magistrate A.K Tripathy (Dead), O.I.C, Town P.S, Sri R.N Deo, C.I., Town P.S, Angul, J.P. Mohapatra and other officers and staff while performing his patrolling duty at Badakera at 1 P.M got an information that the accused Nanda Kishore Das was selling Ganja in his house and as there was no time for obtaining search warrant the same was not obtained. As because there was no time for him to intimate his superior and as he was also in-charge of the Inspector there was no necessity for him to comply such provision U/S 42(1) of the N.D.P.S Page 11 of 19 Act, 1985. P.W.9 further stated that after conducting the raid and seizure of articles he sealed the packet affixing his monogram on paper slip and took the signatures of the accused, Magistrate and witnesses on the paper seal and thereafter he collected the same from each of the Ganja bags as sample in presence of the accused, Magistrate and the witnesses and thereafter arrested the accused persons and prepared the F.I.R. under Ext.4 and returned to the headquarters with the accused persons and sealed articles. P.W.9 further admitted in his cross-examination that he has prepared the C.D. at the spot. The statement of the witnesses recorded were not in his hand but he had given to one of his subordinate officer namely A.S.I Sri Pradeep Kishore Panda and Sri Panda has recorded the statements. P.W.9 also stated that he had not assigned any reason as to why he had not recorded the statements. It is further stated that he had reduced the information that he has received information in his information register. He drew up a plain paper F.I.R. after search and seizure but he has wrongly mentioned in the C.D. that after drawing up Page 12 of 19 the plain paper F.I.R., he proceeded to the spot and he has also not mentioned the name of the witnesses in the F.I.R. P.W.9 has also admitted in cross-examination that he has not noted the total number of rooms in the residential house of the accused persons and has prepared the spot map but had not indicated the rooms in the residential house of the accused persons that he searched. He also further stated that he had not handed over the seized articles to the O.I.C of Jarpada P.S. for safe custody. After the seizure, I had kept the seized articles including the sample in the Excise Malkhana at Angul under his custody till it was produced before the S.D.J.M, Angul on dated 28.07.94. In Para-8, P.W.9 further states that he has not mentioned in the C.D. that he had kept the seized article in the Excise Malkhana during the intervening period. In Para-9 of the cross-examination, P.W.9 further stated that the sample packets were not opened before the learned Special Judge nor it was resealed before sending the same for chemical examination and he had not mentioned the numbers of currency notes that he had seized in the seizure list nor he had mentioned the denominations of those currency notes and had kept the C.D. with him till the P.R. was submitted.” Page 13 of 19 From the analysis of the evidence as contended above, it is eminently clear that the timing of search and seizure, which has taken place is completely contradictory and the evidence creates a doubt. 10. The learned trial Court has rightly categorized all the witnesses into three categories. Firstly, P.Ws.1, 2 & 8, those, who are the independent witnesses. Secondly, the Police officers and the Executive Magistrate examined as P.Ws. 3, 4 and 7 and thirdly, the Excise personnel those who have conducted the search and seizure of P.Ws. 6 and 9. 11. It is admitted on record that the first set of the evidence those who are the independent witnesses have not supported the prosecution case. Therefore, the seizure of the contraband ganja is coming under the serious clouds of doubt. 12. In so far as the evidence of P.W.7 is concerned, his testimony is not getting corroborated with the testimony of the third set of witnesses those who have conducted the search and seizure. P.W.7 in his testimony has stated as under: Page 14 of 19 “I got the order on 26.7.94 night to accompany the A.P.R. force. We left Angul early in the morning at about 4.30 A.M. The raid was conducted at about 5.30 A.M. and the raid was completed at about 8 A.M.” This is in completely contrast with the evidence of P.W.6, who has stated as under: “On 27.7.94 I was posted to the District Excise Intelligence Bureau, Angul. That day at about 12 noon I accompanied the Executive Magistrate, Excise S.I. R.N. Sahu and Police to village Jakub. There Excise S.I. searched the house of Nandi Das in presence of the Magistrate and Police.” If these evidences are taken into account, the timing of search and seizure cannot be definitely ascertained. It is also borne on record that P.W.9 has kept the seized articles in his own possession for over a day. In his cross-examination, he has stated thus: “…….. After the seizure I had not handed over the seized articles to the O.I.C. of Jarpada P.S. for safe custody. After the seizure I had kept the seized articles including the sample in the Excise Malkhana at Angul under my custody till it was produced before the S.D.J.M., Angul on 28.7.94……” Non-handing over of the seized articles to the senior officer and keeping the same in personal custody of P.W.9 cannot rule out tampering. Page 15 of 19 13. Besides that, it has prominently come on record that the statutory compliance has been given a clear go-by while the search and seizure was made. P.W.9 in his testimony has deposed that: “…. I disclosed my identity and my intention to conduct their house search and about my belief. I asked the accused persons if they are desirous to be searched in presence of a Magistrate or a gazette officer to which they replied negatively. Rather agreed that they have no objection if their house is searched in presence of the Executive Magistrate. Thereafter I myself gave my identity and the witnesses present. I also observed all the formalities of search and seizure…..” 14. It is clear from the evidence of P.W.9 that the search and seizure was not made in the presence of the Magistrate. No written notice was given to the accused persons at the spot as required under Section 50 of the N.D.P.S. Act. However, the learned trial Court, while dealing with the said objection, has returned the following finding: “9. True there is catena of decision starting from our Hon’ble Court to our Apex Court that compliance of section 50 of the Act is mandatory and its non- compliance even part compliance of the said section would not help to safeguard the prosecution case. But the question remains as to whether section 50 of the Act which interalia provides that the searching officer shall apprise the person to be searched if was desirous to be searched in presence of a Gazetted Officer or a Magistrate need be complied with the case in hand. In the case law reported in 1989 (Crl. Law Journal at page 1412 (State of Himachalpradesh v. Sudarsan Page 16 of 19 Kumar and others) the scope of section 50 has been discussed. According to this case law, the scope of the section comes to play only when the person to be searched. It has no application at all to search of any house or premises. In the case at hand, the house of the accused persons was searched. The search was conducted in their house and the articles were not seized from their persons rather from their house. This being the consideration, the above mandatory provision not being attracted the question of non-compliance of section 50 of the Act does not arise. 10. Section 55 of the Act mandates that the O.I.C. of P.S. is to take charge of the articles seized and would keep the same in safe custody pending the orders of the Magistrate i.e. till the seized articles are produced in Court. Un-disputedly in the case at hand the seized articles were not kept in the custody of any officer in charge of Police Station. It is evident from the evidence of P.W.9 that he had kept these articles in his custody from the time of its seizure till they were produced before the Special Court. When the seizure was made on 27.7.94, the seized articles were produced before the Special Court on 29.7.94. It is observed in the case law stated above that the provision of section 55 directly not mandatory. It is not being mandatory by keeping of these seized articles in his custody that is in the custody of P.W.9 for two days only, no adverse inference can be drawn against the case of the prosecution.” 15. When the discrepancies in the search and seizure was pointed out to the learned trial Court, the learned trial Court has discarded the same stating that the irregularities or infirmity in search and seizure cannot vitiate the trial and accordingly recorded the following finding: Page 17 of 19 “Lastly, I may add that any irregularity or infirmity of search and seizure does not vitiate the trial or conviction. It is so held long back by the Hon’ble Supreme Court in a case-law reported in A.I.R. 1963- S.C. page 822 Radhakrishna …vrs.. State of Uttar Pradesh. In the same analogy it may be said that even if there is illegality or lacuna in the investigation the accused cannot escape the liability of the offence of unauthorized possession of ‘ganja’ when proved by evidence and when no prejudice is shown to the accused. 12. Undisputedly the P.W.9 has sent sample packets to the Dy. Director, Drugs Control for chemical examination vide Ext.5. Ext.6 is the Chemical Examination Report. The chemical examination report shows that as many as 4 sealed packets were received. The specimen seals were compared with that of the specimen seals given in the forwarding Memo of the Court and found intact. It is stated in the report that the samples were dried brownish green coloured fruit and flowering top of the ‘ganja’ consisting of stems of foliages and seeds. According to the report the samples were nothing but cannabis. Admittedly by the time the accused had no license for possession of the above ‘ganja’. As such the inhabitable conclusion is that the accused persons were in possession of the ‘Ganja’ in contravention of section 8 of the N.D. & P.S. Act and rules framed thereunder. Therefore, they ought to be held guilty under section 20(b) of the N.D. & P.S. Act.” 16. From the aforementioned analysis of evidence, I am unable to agree with the findings recorded by the learned trial Court. Hence, while extending the benefit of doubt in view of the doubtful seizure and variation in the timing of the search and seizure and none-corroborative Page 18 of 19 evidence of the witnesses, I am inclined to hold that the appellants are entitled to acquittal. 17. Accordingly, the judgment and order dated 06.09.1996 passed by the learned Special Judge, Dhenkanal-Angul, Dhenkanal, in Special Case No.21 of 1994/Trial Case No.21 of 1994 is set-aside. The appellants are acquitted of the charge under Section 20(b) of the N.D.P.S. Act. The bail bond stands discharged. 18. This Court records appreciation for the effective and meaningful assistance rendered by Miss Subhashree Sen, learned Amicus Curiae. She is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation. 19. The Criminal Appeal is accordingly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 25th Day of September, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 25-Sep-2025 19:53:27 Page 19 of 19