The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 195 of 1998 (In the matter of an application under Section 374 of Criminal Procedure Code) Bijoy Kumar Sahu ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Bini Mishra, Advocate For the Respondent : Mr. S.J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 18.11.2025 : Date of Judgment: 27.11.2025 S.S. Mishra, J. The present Criminal Appeal is preferred by the appellant-Bijoy Kumar Sahu questioning the judgment of conviction and order of sentence dated 30.06.1998 passed by the learned Additional District and Sessions Judge, Nayagarh in Sessions Trial No. 117/19/117 of 97/96, whereby the appellant was found guilty of offence punishable under Section 20(b)(i) of the NDPS Act read with Section 47(a) of Bihar and Orissa Excise Act, and on the count of such conviction, the appellant has been sentenced to undergo R.I. for one year with fine of Rs.2000/-, in default to undergo S.I. for six months for offence under Section 20(b)(i) of the NDPS Act. Further, on the count of the guilt under Section 47(a) of Bihar and Orissa Excise Act, the appellant was sentenced to undergo R.I. for three months with fine of Rs.200/-, in default to undergo S.I. for fifteen days. Both the sentences were directed to run concurrently. 2.
Legal Reasoning
Heard Ms. Bini Mishra, learned counsel for the appellant and Mr. S.J. Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case, in short, is that on 06.10.1995 night P.W. 1, who was working as A.S.I. of Nayagarah P.S., had been to perform Anti Dacoity Patrol duty along with some A.P.R. force and returned to the headquarters in the early morning of 6/7-10-95. He stopped the Police Van at Nayagarah Bus Stand. In the bus stand he found the accused was Page 2 of 16 moving in a suspicious manner holding a foam bag. He detained the accused and searched his bag suspecting keeping of some contraband articles and found one paper packet and two bottles were kept in it. On opening of the paper packet, he found Ganja in it and I.D. liquor in two bottles. He prepared a written report at the spot and sent the same to Nayagarah P.S. through a Constable. The I,I.C. treated the same as F.I.R. and registered P.S. Case No. 282 of 1995 under section 20 of the N.D.P.S. Act and Sec. 47 (a) of Bihar and Orissa Excise Act and directed the S.I., G.R. Mohapatra to take up investigation. The I.I.C. and the S.I. G.R. Mohapatra immediately came to the spot and effected the search after observing the formalities. They recovered the Ganja and I.D. liquor from inside the bag and seized the same. The S.I., G.R. Mohapatra got weighed the Ganja through one Lochan Sahu and on weighment, it was found to be 425 gms. He drew up two samples, out of that Ganja weighing 25 gms. each and packed them separately and put the brass impression seal on each packet and took the signature of the accused and witnesses on the paper slips affixed on each three packets. As the accused could not produce any licence in support of such possession, he Page 3 of 16 was arrested by him and taken to the P.S. along with seized articles and on the same day, he forwarded the accused to the court along with the seizure list and the seized articles. He made a prayer to the court to send the sample packet of Ganja and liquor to S.F.S.L., Rasulgarah, Bhubaneswar for examination. But the learned S.D.J.M., in-charge, re- sealed the Ganja packets by putting his own seal and handed over the same to the I.O. directing to produce in the court on 11.10.95 for sending to S.F.S.L., Rasulgarah for examination and accordingly on 11.10.95 the I.O. produced the same before the S.D.J.M. and the latter found the seals put on it were intact and forwarded the same to S.F.S.L., Rasulgarah for examination. The latter, on examining the sample packets of Ganja and liquor, opined that the exhibits contain cannabis (ganja) and liquor. 4. On the basis of the aforesaid allegations, police registered the case and investigation was conducted and charge sheet was filed. On the stance of denial and claim of trial, the appellant was put to trial after framing of the charges. Page 4 of 16 5. The prosecution in order to bring home the charges, examined as many as eight witnesses in toto and exhibited several documents. P.W.1 was the ASI of Police of Nayagarh P.S., whereas P.W.8 was the I.O. of the present case. P.Ws.6 and 7 were the independent witnesses and of them P.W.6 was the witness to the search and seizure. The other witnesses, i.e., P.Ws.2, 3, 4 and 5 were the members of the armed forces, who had accompanied the P.W.1 in Anti Dacoity Patrol Duty in the preceding night of 07.10.1995. 6. After analysis of the evidence brought on record and appreciation of the oral and documentary evidence, the learned trial court convicted and sentenced the appellant, by which the appellant is aggrieved and has filed the present appeal. 7. Ms. Bini Mishra, learned counsel appearing for the appellant has taken me to the evidences of all the witnesses extensively and tried to flag all the contradictions. She has also taken me to the statutory provisions, which according to her, has not been complied by the prosecution. From the entirety of her argument, five prominent issues Page 5 of 16 has been culled out, namely, (i) the investigating agency has not scrupulously followed the provisions contained under Section 42 and 50 of the NDPS Act; (ii) reading of the evidence of P.Ws.7 and 8 revealed that the brass seal used for packing and sealing of the sample has not been produced before the court; (iii) the I.D. Liquor alleged to have been recovered from the appellant was not measured; (iv) the Gazetted Officer, in whose presence the search was carried out, was deliberately not examined; and (v) out of the two independent witnesses, only one of them was examined, who did not support the prosecution case. On the basis of the aforementioned highlighted points, Ms. Mishra submitted that it is inevitable for this Court to interfere in the present appeal and to set aside the same by extending the benefit of doubt to the appellant. 8. Per contra, Mr. Mohanty, learned counsel for the State has contended that the learned trial court has rightly arrived at conclusion finding the appellant of guilty. In the fact scenario of the present case, Sections 42 and 50 are not required to be complied with. He further Page 6 of 16 submitted that quantity of prosecution evidence is not essential; rather the quality of the evidence is essential to bring home the charges, which the prosecution has rightly discharged. 9. I have carefully gone through the record and in the light of the materials available on record in the form of oral testimony of the witnesses and documentary evidence, analyzed the impugned judgment. 10. P.W.1, who was the ASI of Police accompanied with the police party, has deposed that on 07.10.1995 night at 5.00 A.M. while on duty they suspected the accused and apprehended him. The accused was holding a foam bag in his hand. On opening the bag, he found two bottles of ID liquor and ganja in a packet were kept and he disclosed his identity. The witness demanded the authority from the accused for transporting the liquor, but the accused could not produce the same. He prepared a written report at the spot and sent the same to the IIC, Nayagarh Police Station. He further stated that the IIC, G.P. Dash arrived at the spot and wanted to search the accused and before doing that he gave an offer to the accused that he has right to be searched either Page 7 of 16 before a Magistrate or before a Gazetted Officer, but the accused told that he can give search before the police and also before him, as he is a Gazetted Officer. Reading of the evidence of P.W.1 makes it clear that there was no written offer made to the accused intimating him regarding his right under Section 50 of the NDPS Act for getting searched in presence of a Magistrate or a Gazetted Officer. It is also evident that whether the IIC, G.P. Dash is a Gazetted Officer or not, is obviously not known to the accused. G.P. Dash was not examined by the prosecution. 11. P.W.4 is also a police official accompanied with P.W.1. He testified that P.W.1 went inside the bus to detect the transportation of contraband articles. He came out from that bus with a bag, M.O.I. and we took the accused and M.O.I to Nayagarh Police Station. That part of the evidence of P.W.4 is directly running contrary to the narration of incident made by P.W.1. 12. P.W.8 is the I.O. of the present case. He in his testimony has stated as under:- Page 8 of 16 3. I came to Ngr. Bus stand along with B.P. Das I.I.C.; Ngr-Ps. I found the accused in dock (Identified) was standing in bus stand with a bag (M.O. I) and he was detained by A.S.I., R.C. Mohanty (P.W.1) aloon with some A.P.R. force: I examd. P.W. 1 at the spot. 4. I asked the accd, his name and identity to which he has staed that he is Bijoy Ku. Sahu s/o Gangadhara Sahu of Bolagarah P.S. Then I expressed my intention of search of the bag and person as suspected that some contraband articles were kept in that bag. I also asked give him offer whether he is intended to be searched before a Magistrate or before a Gazetted Officer. He expressed his willingness to be searched before a Gazetted Officer. Then I.I.C. - Nayagarah B.P. Das gave his identity to the accd. stating that he is Inspector of Police and Gazetted Officer. Accused has stated that he has no objection if he will be searched before I.I.C. who is a Gazetted Officer. I also called 5. Before effecting search, I gave my personal search to the accused in presence of witnesses. Then searched the foam bag of the accused (M.O. I) in presence of the said "Gazetted officer and witnesses, and on search I found one Paper pocket containing Ganja and two bottles of I.D. liquor. Before effecting search two independent witnesses Chhabi Behera (P.W. 6) and one Kalia Behera. Then I called for a one Lochan Sahu to come to the spot with sweighing instruments to weigh the Ganja on which Locahn Sahu came to the spot and weighed the Ganja in presence of the accd. and witnesses. It was 425 gms.of Ganja. I demanded the authority of transporting contraband N.D.P.S. articles to the accused, but he could not produce any. I prepared two sample packets from the Ganja each containing 25 gms, and the rest 375 gm of Ganja was kept in a separate paper packet. I sealed all the three packets by affixing my personal brass seal and before it he the wax seal was prepared in three separate white peice of papers containing the signature of witnesses and the accused. The wax seal were kept inside the sealed pkt. Page 9 of 16 This is the paper pkt. containing the rest 375 gms of Ganja marked as M.O. II. These are the two bottles containing I.D. liquor marked M.Os. III & IV. M.O..V. is the paper packet wrapped in a piece of cloth duly sealed before the S.D.J.M., Nayagarah at the time of forwarding two sample packets to the State F.S.L., B.B.S.R. On my prayer vide forwarding report Ext. 4. After examining the two sample Pkts., the report from the Chemical examiner was received and after examination, the Chemical Examiner found that the seal impression (wax seal) in Ext. B was found to be similar with lac seal impression in Ext. C. And the sample packets are found to contain Canabis (Ganja). He also found a contents of M.O. III and IV found to contain liquor and the percentage of Alcohol Ethylocohol to be of 20% volume by volume. This is the report Ext. 5 of the Chemical Examiner.” 13. The said witness sustained vivid cross examination at the hands of the defence counsel only to create dent to the prosecution. The reading of evidence of P.W.8, the I.O. further strengthened the argument of the learned counsel for the appellant that while conducting the search and seizure, the procedural safeguard provided under Sections 42 and 50 of the NDPS Act, indeed has not been complied in its letter and spirit. It is also revealed from the record that IIC, G.P. Dash, who stated to be a Gazetted Officer, in front of whom the search and seizure was made, is conspicuously withheld by the prosecution to be examined, although he was part of the police team. The prosecution further tried to rope in two Page 10 of 16 independent witnesses so as to comply Section 100 of Cr.P.C., i.e., one Kalu and one Chhabi Behera. Kalu was not examined, however Chhabi Behera was examined as P.W.6. He has stated that P.W.1 came to him and took his signature on the blank papers and he did not know the accused and also having no idea about the search and seizure. This witness was declared hostile and cross examined by the prosecution, but nothing could be elucidated from him. On the face of these evidences, the learned trial court in paragraph-6 of the judgment has recorded as under:- “6. From the evidence of P.Ws. 1 to 5 it reveals that in the previous night, they had been to perform Anti Dacoity Patrol duty and returned to Nayagarah at 5 a.m. and stopped near Nayagarah Bus stand. It was stated by the P.W. 1 that he found the accused moving at the Bus Stand with a foam bag and he behaved suspiciously when saw the police party. So, he suspected his movements and went to him and immediately searched the bag and recovered one paper packet and two bottles and on opening of the same he found the Ganja in the -paper packet and I.D. liquor inside the two bottles. As he was not the empowered officer to conduct search in respect of contraband articles like Ganja which is a Narcotic Drug, so he sent a written report to the I.I.C., Nayagarah P.S. vide Ext. 1 informing his such detection and the latter treated the same as F.I.R. and registered P.S. Case and directed the S.I. P.W.8) to take up investigation. It appears from the evidence of P.Ws. 1 & 8 that Page 11 of 16 immediately the I.I.C. and the P.W. 8 came to the spot and found the detention of the accused by the P.W. 1. They effected the search after observing formalities. It was stated by P.Ws. 1 & 8 that they informed the accused of his right of giving search either before a Magistrate or a Gazetted Officer so as to give compliance of Section 50 of the Act and the accused expressed his intention to give search in the presence of Police and thereafter they effected the search. Now the question would arise for consideration if in the given fact and circumstances of the case, does the law requires such compliance. In this respect I may say that it would be profitable to refer to the decision reported in (1996)-10-0.C.R. 24 in the case between Sitansů Sekhar Kanungo vs. State where it has been held that the empowered officer while about to search and during questioning without any concrete intention to search, the accused voluntarily handed over the contraband articles to him and at that circumstances, Section 50 was held to have no application. The said decision is squarely applicable to the present facts and circumstances of this case. In this case, the P.W. 1 after making recovery of the contraband Ganja and I.D. liquor sent a report to the I.I.C. informing such recovery and the latter treated the same as F.I.R. and registered the P.S. case and proceeded to the spot along with P.Ws 8. In my considered view at that premises, there is no need to follow the mandatory provisions of the Section 50 of the Act as the same has no application at that circumstances of the case. Similarly, Sec. 42 of the Act has also no application to the present facts and circumstances of the case as the information lodged to the I.I.C. in a written report disclosed about the positive recovery of Ganja from that circumstances there is no need on the part of the I.O. to take down the same into writing before proceeding to verify the truth of it. More-over, the I.I.C. treated the report as F.I.R. and after registering the case came to the spot to do further investigation. Since, the P.W. 1 is not the accused and at the possession of Page 12 of 16 empowered officer to detect such type of offence, he therefore sent the report about such recovery to the I.I.C. who is competent to investigate into the case and thereafter P.W. 8 proceeded further in investigating the case. In all these views, I am of opinion that the procedure contained in Section 42 and 50 of the Act need not required to be followed by the I.O. in the case in question at all.” 14. I am in disagreement with the reasoning recorded by the learned trial court to arrive at a conclusion that in the facts of the present case Sections 42 and 50 of the NDPS Act was not required to be followed by the I.O. In that regard, the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan vrs. Parmanand & Anr., reported in (2014) 57 OCR (SC) 1087, is relevant to be relied upon. The Hon’ble Supreme Court has held thus:- “12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also the NDPS Act will have searched, Section 50 of application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.” Page 13 of 16 Similarly, the Hon’ble Supreme Court in the case of Ranjan Kumar Chadha vrs. State of Himachal Pradesh, reported in 2023 SCC OnLine SC 1262, has held as under:- “127. In the facts of the present case, there is no scope of applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the case on hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag which he was carrying on his shoulder.” 15. Applying the ratio laid down by the Ho’ble Supreme Court in the aforementioned two judgments to the facts of the present case, it could be safely concluded that the I.O. has not complied the requirements of Sections 42 and 50 of the NDPS Act, because the evidence at large illuminating on record to the effect that the accused was apprehended while he was holding the bag. The search and seizure were simultaneously carried out on the person of the accused along with the bag. Therefore, the I.O. was obliged under the Act to comply the statutory safeguards contemplated under Sections 42 and 50 of the Act. 16. By taking me to the evidence of the witnesses, Ms. Mishra, learned counsel for the appellant has also pointed out that the liquor Page 14 of 16 alleged to have been seized from the possession of the accused has not been measured. This part of the submission made by Ms. Mishra could not be controverted by the State Counsel. That apart, by taking to the evidence of P.Ws.7 and 8, the counsel for the appellant has stated that the brass seal used for sealing the samples were not produced before the court, which is mandatory requirement under law. P.W.8 in paragraph-7 of his evidence deposed as under:- “7. After sealing the three pkts of Ganja my personal brass seal was given in zima of witness Locahan Sahu (P.W. 7). Ext. 3/1 is the zimanama executed by him. These are the two sample pkts. sent back to the court after examination by the Chemical examiner. These are the two paper slips which contained the signature of accused and witnesses marked M.O. VI and VII. After making seizure of the Ganja and liquor I handed over the three packets of Ganja and two bottles of liquor in the zima of I.I.C., Ngr. P.S. to keep it in P.S. Malkhana till its production before the S.D.J.M., Ngr.” 17. However, when P.W.7 was examined as a witness, he did not support the prosecution and stated that the signature in the zimanama was simply obtained from him and he had no knowledge about the same. Therefore, regarding the production of the brass seal before the court, the evidence is shaky. The other points raised by the learned counsel for the Page 15 of 16 appellant need not be delved upon, in view of my findings that the I.O. (P.W.8) of the present case has not complied with the requirements under Sections 42 and 50 of the NDPS Act. 18. In view of the aforesaid findings, the imperative conclusion that could be drawn is that the prosecution has failed to establish the charges under Section 20(b)(i) of the NDPS Act read with Section 47(a) of Bihar and Orissa Excise Act. Hence, the appellant is entitled to the benefit of doubt. Accordingly, the judgment of conviction and order of sentence dated 30.06.1998 passed by the learned Additional District and Sessions Judge, Nayagarh in Sessions Trial No. 117/19/117 of 97/96, is set aside and the appellant is acquitted of all the charges. The bail bond furnished by him stands discharged. 19. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 27th of November, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2025 11:00:10 Page 16 of 16