The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.228 of 1999 (In the matter of an application under Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 374 and 382 of the Criminal Procedure Code, 1973) Narayan Sahu ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Tirtha Kumar Sahu, Amicus Curiae For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.10.2025 :: Date of Judgment: 27.11.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant- Narayan Sahu is directed against the judgment and order dated 03.08.1999 passed by the learned Sessions Judge-cum-Special Judge, Khurda, Bhubaneswar in T.R. Case No.10 of 1998, whereby the present appellant has been convicted for the offence under Section 20(b)(i) of the N.D.P.S. Act and on that count, he was sentenced to undergo R.I. for three years and to pay a fine of Rs.25,000/-, in default of payment of fine, to undergo further R.I. for one year subject to set off the substantive sentence under Section 428 of Cr.P.C. 2. The present appeal has been pending since 1999. When the matter was called for hearing, consistently none appeared for the appellant.
Legal Reasoning
this, reliance can be placed upon the judgment of this Court in the case of Kanduri Charan Mohanty vrs. State of Orissa reported in (2003) 24 OCR 3, wherein this Court noticing the lacuna in following the procedural safeguards, acquitted the accused giving him the benefit of doubt for the offence in similar nature. Therefore, the imperative conclusion would be to extend the benefit of doubt to the appellant. Hence, by extending the benefit of doubt, the appellant is acquitted of all the charges under Section 20(b)(i) of the N.D.P.S. Act. The bail bond furnished stands discharged.
Arguments
Therefore, this Court requested Mr. Tirtha Kumar Sahu, learned counsel, who was present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Sahu. 3. Heard Mr. Tirtha Kumar Sahu, learned Amicus Curiae for the appellant and Ms. Sarita Moharana, learned Additional Standing Counsel for the State. 4. The prosecution case in terse and brief is that on 26.10.1998 at about 12.10 P.M., the Excise S.I., Balugaon Charge (P.W.1), while on patrol in Balugaon Town along with his A.S.I. (not examined) and a Page 2 of 15 Constable (not examined), noticed the accused near the Balugaon railway level crossing. The accused was coming from the Banpur side carrying a gunny bag and appeared perturbed on seeing the patrol party, thereby arousing suspicion. P.W.1 detained him and requested nearby passersby to witness the personal search. P.W.2 responded to the call. P.W.1 disclosed his identity to the accused and informed him of his right to be searched before the nearest Magistrate or a Gazetted Officer. A written notice (Ext.1) was served in that regard. The accused declined the option and consented in writing (Ext.2) to be searched by P.W.1. Upon search, the gunny bag carried by the accused was found to be containing ganja weighing 3 kilograms. P.W.1 stitched and sealed the bag, affixed a paper slip bearing the signatures of the accused, P.W.2, and the raiding party, and secured the seal impression of his brass seal thereon. The brass seal was then handed over in zima to P.W.2, who executed a zimanama (Ext.4). The contraband (M.O.I) was seized under the seizure list (Ext.3), attested by both independent and official witnesses. A copy of the seizure list was served on the accused, who Page 3 of 15 acknowledged receipt by endorsement and signature on the reverse of Ext.3 (Ext.3/5). Thereafter, P.W.1 arrested the accused, explaining the grounds of arrest, and produced him along with the seized contraband before the Special Judge, Bhubaneswar. As directed by the Court, the S.D.J.M., Bhubaneswar drew a 50 gram sample from M.O.I, which was packed, sealed, and forwarded to the State Drugs Testing and Research Laboratory, Bhubaneswar under Ext.7 along with the specimen seal. The remaining material was deposited in the court malkhana. Chemical examination confirmed the sample to be ganja as defined under Section 2(iii)(b) of the N.D.P.S. Act. The Chemical Examiner’s report is Ext.10. On completion of investigation, P.W.1 submitted the prosecution report for the alleged commission of offence under Section 20(b)(i) of the Act. On the stance of complete denial and claim for trial, the appellant was put to trial on framing of charges. 5. The prosecution in order to prove its case has only examined two witnesses, namely, P.W.1, who is the informant and Investigating Officer and witness to the recovery. P.W.2-Sukanta Kumar Sahu was Page 4 of 15 one of the independent witness, who did not support the case. Hence, the case of the prosecution is rest only on the shoulder of P.W.1 alone. 6. The learned trial Court by relying upon the testimony of P.W.1, recorded the following findings:- “8. The P.W.1 has categorically deposed that he explained to the accused that he had the option to be searched either before the nearest Magistrate or a Gazetted Officer of the Department and served a written notice (Ext.1) to that effect which has been acknowledged by the accused (vide Ext.1/1). The evidence of the P.W.1 that the accused preferred to be searched by him is fortified by the written consent of the accused with signature (Vide Exts.2 and 2/1 respectively). Therefore, the defence contention that the requirements of Section-50 of the Act were not followed is set at naught. 9. The P.W.1 has also followed the requirements of Section 52(1) of the Act by informing the accused of the the ground of arrest. He also requirements of Section-57 of the Act by making a full report of the particulars of search, seizure and arrest to his immediate official superior and has produced the office copy thereof (Ext. 8) along with the acknowledgement (Ext.9) of his immediate official superior. Therefore, the second defence contention does not bear scrutiny. 10. Coming to the last contention, I find that the P.W.1 has deposed that the sample drawn by the S.D.J.M., Bhubaneswar the M.O.I was entrusted to him with the forwarding report in the late hours for production before the State Drugs followed receipt from Page 5 of 15 Testing Research Laboratory, Bhubaneswar and as the Laboratory was closed by this, he kept the sample in his custody and produced it in the Laboratory on the next day, i.e. 27.10.1998 at 10 AM. Not only the evidence of P.W.1 has stood the acid test of cross-examination, but the Chemical Examiner in his report (Ext.10) has testified that the seal on the sample was intact and identical with the specimen seal received from the court on the forwarding memo. Therefore, by no stretch of imagination it can be said that the Court seal on the sample was tampered with and the sample was not in safe custody during the interregnum period. (See in the case of SATYANARAYAN DAS, V. STATE OF ORISSA: 1999 CRIMINAL LAW JOURNAL 974).” (Vol.105) On the strength of the aforementioned findings culminated from the appreciation of the evidence, the learned trial Court recorded the guilt of offence under Section 20(b)(i) of the N.D.P.S. Act against the appellant. Feeling aggrieved by the same, the appellant has preferred this appeal. 7. Mr. Sahu, learned Amicus Curiae appearing for the appellant has taken me to the evidence of P.W.1 in extenso. Not only pointed out the contradictions, apparent on record but also pointed out the non- Page 6 of 15 compliance of the statutory procedural safeguards ought to have been strictly followed in the case of present nature. 8. While examining as to whether the Investigating Officer has followed the safeguard procedure contemplated under Section 42 and 50 of the N.D.P.S. Act, the evidence of P.W.1 needs to be evaluated. P.W.1 in his examination-in-chief has stated as under:- “2. I have been posted S.I. of Excise Balugaon charge on 30th Sept, 1998 and continuing. On 26.10.98 at 12.10 P.M. while patrolling at Balugaon town along with A.S.I. Budhanath Sethi and constable Satyanarayan Mahapatra I found the accused near the level crossing coming from Banpur side towards Balugaon carrying one Khaki gunny bag. The accused was perturbed at out sight and was trying to run away. Suspecting that the accused may be carrying narcotics, I directed my A.S.I. to detain him. I called two passers-by to join us in searching the accused but one of them namely Sukanta Kumar Sahu was alone willing to be a search witness. I gave my identity as S.I. of Excise to the accused and my intention to search him and gave him the option to be searched either before the nearest Magistrate or a Gazetted Officer of the department. I served a notice to that effect on him. Ext.1 is the notice u/s. 50 of the N.D.P.S. Act served on the accused and Ext.1/1 is the signature of the accused acknowledging the receipt of the notice. Ext.1 is the carbon copy of the original notice served on the accused.” Page 7 of 15 9. This part of the deposition of P.W.1 remains unshaken even in the cross-examination. From the evidence, it is clear that the written notice was given by P.W.1 to the accused asking him as to whether he is willing to being searched by P.W.1 or he would prefer to be taken to the Gazetted Officer or Magistrate. The written notice allegedly served on the accused was exhibited as Ext.1/1. The accused acknowledged the receipt of the same. Ext.1 is the carbon copy of the original notice served on the accused. Ext.2 is the separate notice wherein the accused has signed. The evidence further disclosed that the accused has agreed to be searched by P.W.1. However, P.W.1 deposed that he attempted to arrange two witnesses to witness the search and seizure but could only manage one witness, i.e. (P.W.2)-Sukanta Kumar Sahu. The said witness (P.W.2) did not support the prosecution case. The compliance requirement of the procedure under Sub-Section 5 of Section 50 of the N.D.P.S. Act, which reads as under:- “50. Conditions under which search of persons shall be conducted:- xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx Page 8 of 15 (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 Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).” The procedural requirement as contemplated under the aforementioned provision is that in the event an accused in a NDPS case gives a written consent to be searched by the Investigating Officer without being produced before the Gazetted Officer or the Magistrate, then two or more independent witnesses are mandatorily required as provided under Section 100 of Cr.P.C. Section 100 of Cr.P.C. reads as under:- “Section 100- Persons in charge of closed place to allow search:- xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be Page 9 of 15 searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5)The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.” 10. Admittedly, P.W.1 has only asked one witness (P.W.2) to be present at the time of search of the accused, even that witness has not supported the prosecution. Therefore, the inevitable conclusion which could be drawn from the evidence of P.W.1 is that Sub-Section (5) of Section 50 of the N.D.P.S. Act has not been complied in its true letter and spirit. The second issue which is illuminating on record is that P.W.1 has not complied with the requirement of Section 55 of the N.D.P.S. Act. P.W.1 in his statement has stated that he stitched the gunny bag with a thread and sealed it by means of a paper slip containing the signature of the accused, punch witnesses and official witnesses, however, none of them have been examined. He further Page 10 of 15 deposed that he sealed it with the help of brass seal and put his specimen impression on the seizure list. He further stated that he made over the brass seal in zima of witness Sukanta Kumar Sahu (P.W.2) under zimanana (Ext.4). This part of the evidence has not found support from P.W.2. P.W.1 further stated that he produced the seized ganja before the S.D.J.M., Bhubaneswar on the same day. The learned S.D.J.M., Bhubaneswar drew sample of 50 grams of ganja from the seized ganja and handed over the gunny bag containing rest of the ganja to him for depositing it in the Court Malkhana. He further stated that he produced the rest of the ganja in Court Malkhana on the very same day, which found mentioned in Malkhana-chalan (Ext.6). He further deposed that the S.D.J.M. made over the sealed sample packets along with the forwarding report in duplicate to him to be produced before the State Drugs Testing Laboratory, Bhubaneswar. P.W.1 further admitted that he could not produce the sample before the State Drugs Testing Laboratory on the same day and kept it as it was too late on the day. He remained in the house of one of his relatives and kept the sample in his custody. He Page 11 of 15 further stated that he produced the samples only on 27.10.1998 at 10. A.M. before the Laboratory. In the cross-examination, P.W.1 stated that he kept the sample in his custody from 10 P.M. on 26.10.1998 till 10 A.M. of 27.10.1998 when he deposited it in the State Drugs Testing Laboratory. This admission on the part of P.W.1 creates a serious doubt regarding the maintenance of fairness in the investigation and compliance of the statutory safeguards under the Act. 11. Mr. Sahu, learned Amicus Curiae for the appellant submitted that keeping the sample in the custody by P.W.1 creates a serious doubt in the instant case because the entire case is based on the evidence of only one witness, i.e., P.W.1. Therefore, he submitted that in this case neither Section 50 nor Section 55 of 57 of N.D.P.S. Act in its true sense is complied. Mr. Sahu, further submitted that in the event this Court upheld the conviction while sentencing the accused-appellant, a lenient view should be taken because the incident relates back to the year 1998. At that point of time, the appellant was 27 years of age. The appellant has Page 12 of 15 already undergone about 11 months in custody. He has also stated the recovery of ganja is very minimum quantity, i.e., 3 kg. 12. Mrs. Sarita Moharana, learned Additional Standing Counsel for the State, on the other hand, by reading out the judgment, submitted that non-supporting of the prosecution case by P.W.2 is immaterial because P.W.2 has admitted his signature in the zimanama and the contemporaneous documents. She has also submitted that although P.W.1 has kept the sample in his custody for one day but unless it is proven otherwise that there is a manipulation, nothing could be implied that the same has been altered or manipulated particularly because when the documents pertaining to the submission of the samples before the Chemical Examiner has testified that the seal on the sample was intact and identical with the specimen seal received from the Court on the forwarding memo. That being the evidence brought on record through documents; the retaining of the samples by P.W.1 overnight due to an explained reason should not be doubted. 13. I have taken into consideration all the evidences in toto and also given a careful thought to the contention raised by the parties and the Page 13 of 15 judgment cited at the Bar. I am of the opinion that in a case of the present nature where a special stringent offence is alleged against the accused-appellant, the statutory procedural safeguard needs to be scrupulously followed. However, the evidence of P.W.1, the only witness in this case, not inspiring confidence regarding the fairness of the investigation and compliance of the statutory provisions particularly provisions under Section 42 and 50 of the N.D.P.S. Act. With regard to
Decision
14. Accordingly, the CRA is allowed and disposed of. Page 14 of 15 15. This Court acknowledges the effective and meaningful assistance rendered by Mr. Tirth Kumar Sahu, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 27th November, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 08-Dec-2025 18:33:08 Page 15 of 15