Signed by: BHABAGRAHI JHANKAR v. State of Odisha

Judgment

- 13.02.2026 Dr. Sanjeeb K Panigrahi, J.

1. In this CRLA, the Appellant assails the judgment of conviction and order of sentence dated 19.03.2024 passed by the learned Sessions Judge -cum- Special Judge, Malkangiri in Special 2(a) CC No.37 of 2023, whereby the Appellant has been convicted for the offence under Section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh only), and in default of payment of fine, to further undergo R.I. for a further period of six months. pg. 1 I. FACTUAL MATRIX OF THE CASE: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46

2. Bereft of unnecessary details, the case of the prosecution is that on

06.06.2023 at about 10.30 AM, the Officer-in-Charge (O.I.C.) of Balimela Excise Station, while performing patrolling duty along with his staff on the road leading from Balimela to Dyke-1, detected a person standing near Dyke-2 Chhak with a white-coloured polythene sack near his leg. Finding his conduct suspicious, the patrolling party detained him.

3. On being asked, the said person disclosed his identity as Anupal @ Anpal Raja Rao. An independent witness present nearby, named, Ghasiram Nayak, was called and requested to witness the search. The Appellant was informed in writing of his legal right to be searched in the presence of an Executive Magistrate or a Gazetted Officer, to which he expressed his willingness to be searched by the O.I.C. himself.

4. Thereafter, the O.I.C. first offered his personal search and then conducted the search of the polythene sack in possession of the Appellant after observing formalities. On search, the sack was found to contain suspected ganja well known as cannabis. On weighment, the contraband was found to be 33 kgs.

5. In presence of the witnesses, the Officer took a small quantity of the seized substance, rubbed it in his palm and burnt it. From its smell, colour and texture, he ascertained the substance to be ganja. The sack containing ganja was marked as Ext.A. Two samples of 25 grams each were drawn, kept in separate envelopes, paper-sealed and pg. 2 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 marked as A1 and A2. The sack and the sample packets were sealed with paper slips bearing the signatures of the Appellant and the witnesses using the brass seal of the O.I.C. The used brass seal was handed over in zima to the independent witness.

6. The seized ganja was taken into custody under a seizure list, the contents of which were read over and explained to the Appellant and the witnesses, who, on finding the same to be correct, affixed their signatures thereon. A spot map and other relevant documents were prepared at the place of occurrence. The Appellant was arrested and after explaining the grounds of arrest and observing all legal formalities, was arrested and, thereafter, forwarded to the learned trial Court.

7. A prayer was made before the learned trial Court for drawal of the samples of ganja for chemical examination. On production of the seized articles before the learned S.D.J.M., Malkangiri, the seal of the sack containing ganja was opened and two further samples of 25 grams each, marked as A-3 and A-4 were drawn by the learned SDJM, Malkangiri and sealed with the brass seal of the Court. The plastic sack containing ganja was again resealed.

8. A requisition along with exhibits A-1 and A-4 was handed over to the O.I.C. for transmission to DECTL, Berhampur for chemical examination and opinion. The samples marked A-2 and A-3 were kept in the Court Malkhana, while the bulk ganja was kept in the Custody of the O.I.C. as per the direction of the learned SDJM, Malkangiri. pg. 3 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46

9. Upon completion of investigation, P.R. was submitted against the Appellant for the offence under Section 20(b)(ii)(C) of the NDPS Act.

10. On an appraisal of evidence on record, the trial Court vide the impugned judgment of conviction and order of sentence held the prosecution to have proved the aforesaid charge and convicted the present Appellant thereunder as stated supra. II. SUBMISSIONS ON BEHALF OF THE APPELLANT:

11. In assailing the impugned judgment, learned counsel for the Appellant submits that there are material contradictions in the statement of the prosecution witnesses and that there is no iota of evidence to establish that the Appellant committed the alleged crime.

12. He further submits that during the course of trial, the prosecution examined as many as three witnesses. Out of whom P.W.1, who is projected as an independent witness to the alleged search and seizure, did not support the prosecution case and was declared hostile.

13. He further contends that the conviction in the present case is based solely on the testimony of the official witnesses. It is well settled that when conviction is founded only on official witnesses, their evidence must be cogent, reliable, trustworthy and inspire confidence. However, in the present case, their testimonies are mutually contradictory and lack credibility.

14. He further submits that the I.O. (P.W.3), in his cross-examination, categorically admitted that while on patrolling duty, he received pg. 4 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 reliable information regarding transportation of contraband ganja. Despite this, no document was prepared in respect of such information nor any information reduced into writing and sent to his superior Officer. Therefore, he contends that the I.O. has not complied with the mandatory requirements under Section 42 of the NDPS Act.

15. He further submits that law is well settled that non-compliance with the provisions under sub-Sections (1) & (2) of Section 42 of the NDPS Act vitiates the conviction, rendering the entire prosecution case doubtful and causing serious prejudice to the Appellant.

16. He further submits that the I.O. (P.W.3), in his cross-examination, admitted that there was nothing on record to show that the Appellant was informed in writing of his legal right to be searched in presence of an Executive Magistrate or a Gazetted Officer. This clearly establishes non-compliance with the mandatory provisions of Section 50 of the NDPS Act. In view of such, he contends that non- compliance of Section 50 of the NDPS Act is fatal to the prosecution case and vitiates the trial.

17. He further submits that the I.O. (P.W.3), in his cross-examination, admitted that there is no document on record to show the place of custody of the seized ganja on the alleged date of occurrence. He has also admitted that there was no malkhana entry documents relating to the samples sent for chemical examination and the samples remained in the custody of the I.I.C., prior to handing over to the special messenger. In view of these admissions, learned counsel pg. 5 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 contends that the prosecution has failed to establish proper safe custody of the seized articles, which has the propensity to create serious doubt in the entire prosecution story.

18. He further submits that although the I.O. (P.W.3) stated that a detailed report was sent to the I.I.C. on 07.06.2023, but neither the person who carried the report nor the person who received the detail report has been examined by the prosecution. The aforesaid report has not been exhibited in the instant case and there is neither any corroborative documentary evidence nor any oral evidence regarding submission of such report before the superior authority. Further, though (P.W.3) stated in his examination-in-chief that the samples were sent for chemical examination through the special messenger to DECTL (SD), Berhampur, the said special messenger has also not been examined. In view of such, learned counsel contends that the provision of Section 57 of the NDPS Act has not been complied with.

19. He further submits that the I.O. (P.W.3), in his cross-examination, admitted that the people usually wait for boarding buses at the spot of detection and the Appellant was standing at a distance about ten to fifteen mtrs. away from the sack containing ganja. Another official witness, P.W.2, in his cross-examination also admitted that people and vehicles were passing through the area during the period of patrolling. In view of such facts, learned counsel contends that the prosecution has failed to establish that the alleged contraband was recovered from the conscious possession of the Appellant. pg. 6

20. Learned counsel for the Appellant in support of his contentions, placed reliance in the case of State of Punjab v. Balbir Singh & Ors.1. The relevant paragraph is reproduced below: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 “17. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest magistrate and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until he can produce him before such gazetted officer or the magistrate. After such production, the gazetted officer or the magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. The words "If the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a gazetted officer or a magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a magistrate. To us, it appears 1 (1994) 7 OCR (SC) 283 pg. 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right.” “…. When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate. Thus the provisions of Section 50 are mandatory.”

21. He also placed reliance in the case of Vijaysinh Chandubha Jadeja v. State of Gujurat2, wherein the relevant paragraphs are reproduced below: “20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so.

24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of 2 (2011) 1 SCC 609 pg. 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.”

22. He further placed reliance in the case of Anand Vardaraj Sammugabel Pandaram v. State of Odisha3. The relevant paragraphs are reproduced below: “7. Adverting to the contentions raised by the learned counsel for the respective parties and after going through the evidence on record, there is no dispute that the prosecution examined three witnesses during trial, out of which the independent witness P.W. 1 Sunil Das has not supported the prosecution case. He stated that he did not know the appellant and while he was going on the station road, he was detained by the excise people and at their instance, he signed 3 2023 (Supp.I) OLR-97 pg. 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 on some papers and he proved his signatures on those papers. The prosecution declared P.W. 1 hostile and cross- examined him but except confronting the previous statement to him, nothing more has been brought out from his evidence. The defence also cross-examined P.W. 1 and he admitted that he signed on plain papers when no one was present at the spot. Therefore, the evidence of P.W. 1 is in no way helpful either to the prosecution or to the defence.

8. In view of the foregoing discussions, when the evidence relating to the mandatory compliance of section 42 of the N.D.P.S. Act is doubtful and there is no cogent evidence relating to compliance of section 57 of the N.D.P.S. Act and P.W. 3 being the officer, who conducted search and seizure has also investigated into the case and submitted the prosecution report, I am of the humble view that the impugned judgment and order of conviction of the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed thereunder cannot be sustainable in law.”

23. He also placed reliance in the case of Ashok Suna v. State of Odisha4. The relevant paragraphs are reproduced below: “12. It is argued by learned State Counsel that the Provision under Section-50 is not applicable in respect of search of premises, vehicles, bags, articles or any other articles and since no contraband was recovered from the personal search of the accused, he cannot be said to have been prejudiced. The evidence on record shows that no contraband was recovered from the person of the accused. Law is no longer res-integra that non-compliance of Section-50 is fatal to the prosecution case and vitiates the trial. When search is made of a thing or place and also of the accused, compliance of Section-50 is mandatory….”

14. …….. It is to be noted in this regard that the search and seizure was made by the S.T.F. which has jurisdiction over 4 2023(I) OLR-434 pg. 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 the entire State. But in all fairness and in compliance of Section 52 and 52-A(2), the seized articles as well as the accused should have been taken to the nearest Police Station, yet the same not having been done, naturally creates a doubt as the accused and the seized articles were taken all the way to Bhubaneswar which is more than 300 Kms. away from the spot that too during the night, whereas the local police station situates at a distance of 40 kms only.”

17. .…..This is contrary to the evidence on record as discussed earlier. As regards the Sections-52, 52(A) and 55 of the Act, learned Court below did not find any infirmity in the evidence but in view of the discussion made herein before in relation to the evidence on record and the position of law, it is evident that the findings of the learned Special Judge as above cannot be sustained….”

24. He further submits that the learned trial Court erroneously held that there is compliance of Section 42 of the N.D.P.S. Act in this case and as such benefit of doubt should be extended in favour of the Appellant. He further highlighted regarding non-compliance of provision under Section 50 of the N.D.P.S. Act so also independent witnesses not supporting the prosecution case.

25. The learned Trial Court, while recording the conviction, has not taken into consideration the settled position of law that in criminal jurisprudence the benefit of doubt must always go in favour of the accused. In the present case where serious inconsistencies and material contradictions stare at the face of the prosecution evidence, the Appellant was entitled to acquittal rather than conviction.

26. In such view of the matter, it was contended that the impugned judgment of conviction and order of sentence should be set aside. pg. 11 III. SUBMISSIONS OF THE RESPONDENT/ STATE: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46

27. In reply, learned counsel for the State submits that the impugned judgment does not suffer from any illegality or infirmity, as the search and seizure of contraband ganja, which was being possessed and transported by the Appellant has been duly established and compliance under Section 50 of the NDPS Act has been properly made in the present case.

28. He further submits that the Appellant has not led any evidence to establish that the ganja was not found in his exclusive and conscious possession. The recovery of the sack containing 33 kgs. of ganja from close proximity to the Appellant and under his control stands corroborated by the testimony of P.W.2., which clearly establishing conscious possession.

29. He further submits that law is well settled that a person may lie, but documents do not. In this regard, reliance is placed on the Chemical Examination Report (Ext.P-13/P.W.3) issued by DECTL (SD), Berhampur, which conclusively establishes that the seized article is nothing else than contraband narcotic substance (Ganja).

30. He further submits that where the testimony of official witnesses relating to search and seizure are found to be cogent, consistent and reliable, the Court is to appreciate the evidence as per their version. In the instant case, both the official witnesses, named, P.W.2 & P.W.3 have deposed consistently pertaining to search and seizure of contraband ganja. He further submits that as per Section 134 of Indian Evidence Act 1872, numbers of witnesses are immaterial in pg. 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 establishing the case. Thus, the two official witnesses (P.W.2 & P.W.3) fully supported the prosecution case and adduced cogent and clinching evidence, which proves the fact that the Appellant was found in exclusive and conscious possession and transportation of contraband Ganja weighing 33 kgs. Hence, non-examination of any other witness is not fatal to the prosecution case and will not amount to suppression of material facts.

31. He further submits that non-compliance of provision under Section 50 of the NDPS Act, 1985 has no application in the present case as Section 50 of the NDPS Act applies only when the search is of the person of the accused, not of articles, sacks or bags in their possession. In the present case, P.W.2 while performing patrolling duty found the Appellant standing with a white coloured plastic sack containing Ganja by his side, and since the contraband Ganja was recovered from a sack in his possession, non-compliance of Section 50 is not fatal to the prosecution case. In support of such contention, he placed reliance in the case of State of Himachal Pradesh v. Pawan Kumar5.

32. He further submits that the recovery of 33 kgs of Ganja from the sack in the possession of the Appellant, coupled with the chemical examination report confirming it to be Ganja, clearly establishes conscious possession and transportation. Once such possession is established, the burden shits upon the Appellant to rebut the same. However, despite being afforded an opportunity under Section 313 5 (2005) 4 SCC 350 pg. 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 Cr.P.C., the Appellant failed to offer any plausible explanation or lead evidence on his behalf to discard the allegation.

33. He further submits that once the possession of contraband is established, the statutory presumptions under Sections 35 and 54 of the NDPS Act come into play. In the present case, statutory presumption under Sections 35 and 54 of the NDPS Act 1985 has remained unrebutted, thereby strengthening the prosecution case. It is well settled that, once possession of the contraband is established, Presumption under Sections 35 (Presumption of culpable mental state) and Section 54 (Presumption from possession of illicit articles) of the NDPS Act come into play. These Sections shift the burden of proof onto the accused to explain their innocent possession; and in the present case the accused has failed to rebut these statutory presumptions.

34. He further submits that the provisions of Section 42 of the NDPS Act are not applicable to the facts of the present case as it is a case of chance recovery. Moreover, Section 42 of the NDPS Act applies when there is prior information but when recovery is made during routine checking or patrolling without prior information, then Section 42 of NDPS Act has no application. Thus, the plea of the ’Appellant- Accused’ regarding non-compliance of Section 42 of NDPS Act is misconceived and untenable in law; and therefore Section 43 of NDPS Act which contemplates a seizure made in any public place or in transit is applicable to the present sets of facts. Therefore, the learned Sessions Judge-cum-Special Judge, Malkangiri has rightly pg. 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Feb-2026 14:40:46 appreciated the evidence on record and has correctly convicted the Appellant under Section 20(b((ii)(C) of the NDPS Act, 1985.

35. In support of his contentions, learned counsel for the State placed reliance in the case of State of Haryana v. Jarnail Singh & Ors.6, wherein the Supreme Court held as follows: “11. We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of Police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 was not attracted.”

36. He also placed reliance in the case of Surinder Kumar v. State of Punjab7, wherein the Supreme Court held as follows: judgment Singh v. State “15. The in Jarnail Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191] , relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.