The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.327 of 2008 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Paramananda Sethy ……. Appellant State of Orissa ……. Respondent -Versus- For the Appellant : Mr. M.K. Panda, Advocate For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 28.10.2025 : Date of Judgment: 18.11.2025 S.S. Mishra, J. In this appeal, the appellant, Paramananda Sethy, has challenged the judgment and order dated 09.06.2008 passed by the learned Sessions Judge-cum-Special Judge, Cuttack in 2(a) C.C. Case No. 34 of 2007 / Trial No. 14 of 2007, whereby the learned Trial Court convicted the appellant under Section 21(b) of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-, and in default of payment of fine, to further undergo imprisonment for six months. 2. Heard Mr. M.K. Panda, learned counsel appearing for the appellant and Mr. Raj Bhusan Dash, the learned Additional Standing Counsel appearing for the State. 3. The short case of the prosecution is that on 22.03.2007, the Sub- Inspector of Excise, EI & EB, Unit-I, Cuttack, along with other Excise staff, was on patrol duty near Mangalabag Square. At about 10:55 A.M., he received reliable information that the appellant was in possession of brown sugar at Machhua Bazar, Cuttack. The S.I. reduced the information into writing and forwarded a copy thereof to his immediate superior officer before proceeding to the said location. Upon reaching Machhua Bazar, he noticed the accused standing near the Durga Temple at Machhua Bazar Square. The accused was detained, and two witnesses who happened to be passing by were called to the spot. After disclosing his identity and informing the accused of his intention to conduct a search, the S.I. apprised him of his legal right to be searched either before a Magistrate or a Gazetted Officer. The S.I. sought the accused’s option in writing, to which the accused orally expressed his willingness to be searched by the S.I. himself. Page 2 of 15 Thereafter, in the presence of the witnesses and other Excise staff, a personal search of the accused was conducted. During the search, a small jerry packet containing brown sugar was recovered from the chest pocket of the accused’s shirt, along with cash amounting to Rs.510/- and his voter identity card. On weighment, the contraband
Legal Reasoning
said judgment, this Court has held that while committing search and seizure, the prosecution under Section 50 of the N.D.P.S. Act is bound to give option in writing regarding the search and seizure to be made by a Gazetted Officer or Magistrate. In the event, the accused agrees for search in absence of a Gazetted Officer or Magistrate, it is obligatory on the part of the Investigating Officer to secure the Page 10 of 15 attendance of two or more witnesses of the locality as provided under sub-sections (3), (4), (7) & (8) of Section 100 of the Cr. P.C. In the said case, the Court found that the police has not made any attempt to secure the attendance of the independent witness. However, in the case in hand, the Investigating Officer, P.W.4 has deposed that two independent witnesses, namely, P.Ws.1 and 3 had witnessed the search and seizure. Although, two independent witnesses have not supported the prosecution case, but both of them have admitted their signatures on the seizure list Ext.1/1. P.W.4 in his evidence has also categorically stated that he pointedly asked the accused whether he wanted to be searched in presence of a Gazetted Officer or a Magistrate. The offer was also given in writing to the accused, i.e., Ext.6/1 which bears the testimony to that fact. Therefore, there is a full compliance of Section-50 of the Act. The learned trial Court has relied upon that part of their evidence to draw corroboration with the evidence of P.W.4 and came to the conclusion that the requirement of Section-50 has been duly complied with. Page 11 of 15 13. Learned counsel for the appellant further highlighted the non- compliance of Section-55 of the Act and to that effect, he has relied upon the judgment of this Court in the case of Bata Krushna Sahu vs. State of Orissa, reported in (2010) 45 OCR-606. By relying upon the same here, he has stated that the prosecution has failed to establish that the samples were appropriately sealed by affixing brass seal and the same was produced before the Court at any point of time. Therefore, on the basis of non-compliance of Section-55, the appellant is entitled to acquittal. While dealing with said argument, the learned trial Court recorded the following findings: in in his own handwriting but “14. It is true that PWs 1 and 3 though literate simply signed the seizure list and did not make any endorsement in their own handwriting that it was read over and explained to them. P.W.3 received the brass seal of the I.O. in his zima and executed the zimanama. The zimanama is not the handwriting of the I.O. The learned counsel for the defence tried to use this circumstance as a trump card. He argued that omission of P.Ws 1 and 3 to make endorsements in their own handwriting renders the seizure list and the zimanama suspicious. Such a contention does not hold much water. A layman does not know how to write a zimanama. They also do not know the legal requirement of making an endorsement that the document is read over and explained to them. Therefore, nothing much can Page 12 of 15 read be endorsements in their own handwriting. the omissions into to make them instead of depositing 15. The learned counsel for the defence fairly conceded that the seizure was made in a public place and compliance of Section 42 of the Act was not necessary. He, however, took exception to the conduct of the Investigating Officer in depositing the seizure articles at Lalbag Police in Station Mangalabag Police Station. Admittedly, the seizure list was made within the territorial jurisdiction of Mangalabag Police Station. The learned counsel for the defence argued that failure the sealed packets at Mangalabag Police Station was violative of Section 55 of the Act. Such a contention in my opinion does not carry much weight. In paragraph-5 of his evidence, P.W.4 stated that on the very date of seizure he produced the seized articles in Court. But, they were not received in the malkhana as the court hour was over. Admittedly, Lalbag Police Station is the nearest Police Station to Court. In this view of the matter, the action of the Investigating Officer in depositing the sealed packets in Lalbag Police Station cannot be objected to.” to deposit 14. The learned trial Court has rightly appreciated the evidence and held that the prosecution has complied the requirement of Section-55 of the Act to the present case while arriving at the aforementioned conclusion. I have no reason to disagree with such findings of the learned trial Court. Page 13 of 15 15. In view of the nature of the evidence as discussed above, the plea taken by the appellant regarding non-compliance of the statutory safe-guards belies the evidence on record not in consonance with the evidence on record, therefore, finds no favour from this Court. 16. Accordingly, this Court affirms the judgment of conviction recorded against the appellant by the learned trial Court finding the appellant guilty of the offence punishable under Section 21(b) of the N.D.P.S. Act. 17. At this stage, Mr. Panda, learned counsel for the appellant submitted that the present case relates back to the year 2007. At that point of time, the appellant was 50 years of age. At present, he would be about 68 years of age. Much has changed in the life of the appellant and he has no criminal antecedent, as borne out from the record. The appellant has already undergone custody for a period of one year and nine months. In that view of the matter, learned counsel for the appellant submitted that the sentence may be modified to that of the sentence the appellant has already undergone. 18. Taking into account the entirety of the facts and circumstances of the case, the prayer made by Mr. Panda, learned counsel for the Page 14 of 15 appellant deserves merit. Hence, in the light of the facts and circumstances of the case, including the long passage of time since the incident, the advanced age of the appellant, the absence of any criminal antecedent, and the fact that he has already undergone custody for a substantial period of one year and nine months, this Court is of the considered view that the prayer made by Mr. Panda, learned counsel for the appellant, merits due acceptance. The mitigating factors collectively persuade this Court to take a lenient view on the question of sentence. Accordingly, while the conviction as recorded by the learned trial Court is not interfered with, the substantive sentence imposed upon the appellant is reduced to the period already undergone by him. 19. Accordingly, the Criminal Appeal stands partly allowed to the extent indicated above. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 18th of November, 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-Nov-2025 12:32:04 Page 15 of 15
Arguments
was found to be 30 grams. Two sample packets, each weighing 2 grams, were drawn from the seized substance. All items, including the sample packets, were packed, wrapped in white paper, and sealed separately with the seal of the S.I. of Excise. The signatures of the accused and the witnesses were obtained on each of the packets. A seizure list was prepared, and a copy thereof was handed over to the accused. The accused was produced before the learned S.D.J.M., Cuttack, on the same day, while the seized articles were produced before the Court on the following day. The samples were sent through Court for chemical examination to the State Forensic Science Laboratory (SFSL), Orissa, Bhubaneswar. Upon examination, the chemical analyst opined that the seized substance was brown sugar. Page 3 of 15 4. The accused, while denying the allegations, pleaded innocence. Even during his examination under Section 313 Cr.P.C. He stated that the S.I. of Excise had obtained his signature on blank papers, forcibly collected his voter identity card from his house, and falsely implicated him in the present case. Accordingly he faced trial. 5. The prosecution examined four witnesses in support of its case. P.Ws. 1 and 3 were independent witnesses; P.W.2 was the A.S.I. of Excise, EI & EB, Unit-I, Cuttack, who claimed to have assisted in the search and seizure operation. P.W.4 was the S.I. of Excise, EI & EB, Unit-I, Cuttack, who stated that he had conducted the search, effected the seizure, and submitted the final prosecution report. No witness was examined on behalf of the defence. 6. The learned Court below, upon consideration of the materials on record, placed substantial reliance on the testimonies of the official witnesses, namely, the Excise Officers, as the independent witnesses (P.Ws.1 and 3) had turned hostile and did not support the prosecution case. The Court found the evidence of the official witnesses to be consistent, credible, and corroborated by the documentary evidence, Page 4 of 15 including the seizure list, chemical examination report, and other contemporaneous records. It was further observed by the learned trial Court that the procedural safeguards as required under law had been duly complied with by the Sub-Inspector of Excise during the course of search and seizure. The learned trial Court held that the recovery of the contraband substance, the preparation of samples, and the sealing process were carried out in the presence of witnesses and that the chain of custody of the seized materials was duly maintained until their production before the Court and subsequent chemical examination. Relying on the oral and documentary evidence adduced by the prosecution and disbelieving the plea of false implication advanced by the accused, the learned trial Court came to the conclusion that the prosecution had successfully proved its case beyond reasonable doubt. Consequently, the learned Court below held thus: - “20. In view of my discussions in the foregoing paragraphs, I hold that the prosecution has established the offence under Section 21(b) of the Narcotic Drugs & Psychotropic Substances Act against the accused beyond all reasonable doubts. Accordingly, the accused is convicted under Section 21(b) of the Narcotic Drugs & Page 5 of 15 is Psychotropic Substances Act, 1985 and convicted there under. He is to be heard on the question of sentence.” 7. Aggrieved by the judgement of conviction and the order of sentence as passed by the learned trial Court, this Appeal is preferred. 8. Mr. M.K. Panda, learned Counsel for the appellant, contended that the entire search and seizure in the present case is vitiated for non-compliance of the mandatory procedural safeguards prescribed under law. He first submitted that there has been a clear violation of sub- sections (3) and (4) of Section 100 of the Cr.P.C., which are applicable to searches under the N.D.P.S. Act by virtue of Section 51 thereof. It was urged that the raiding party failed to associate independent and respectable inhabitants of the locality during search and seizure, though the search was conducted in broad daylight in a populated area having several houses and offices nearby. The witnesses who were called were not genuine local witnesses, one being from a different district and the other having criminal antecedents. Thus, the deliberate non-compliance of the statutory provisions under Section 100 Cr.P.C. has seriously prejudiced the Page 6 of 15 defence of the accused, and the finding of the learned trial Court justifying such non-compliance is wholly untenable. Secondly, it was submitted that there was only partial and defective compliance with the mandatory provisions of Section 50 of the N.D.P.S. Act, which in effect amounts to non-compliance. Though a written option (Ext.6/1) was allegedly given to the accused, no written consent or refusal was obtained from him, and there is no endorsement to show that the contents of the option were explained or accepted by him. The search was conducted by the S.I. of Excise, who is neither a Magistrate nor a Gazetted Officer, rendering the search illegal. It was contended that the learned trial Court failed to appreciate that the alleged oral consent was an afterthought and not acceptable in the absence of any written record. Thirdly, learned Counsel submitted that the mandatory provisions of Sections 52(1) and 52(3) of the N.D.P.S. Act were also not complied with. The memo of arrest (Ext.5) was defective as the column indicating the quantity of seized contraband remained blank, showing that the documents were prepared later to suit the prosecution case. Further, no explanation was furnished as to why the Page 7 of 15 seized articles and the accused were not forwarded without unnecessary delay to the Officer-in-Charge of the nearest Police Station, despite Mangalabag P.S. being only half a kilometre away. It was further urged that there is total non-compliance of Section 55 of the N.D.P.S. Act, as there is no material to show that the seized articles were kept in safe custody till production before the Court. Though the officers claimed to have left the spot at 2.30 P.M., the records show that the accused and the seized materials were produced before the learned S.D.J.M. only at 7.00 P.M., and there is no explanation for the delay or evidence to show in whose custody the materials remained in the meantime. The Malkhana register of Lalbag Police Station was not produced, nor was any official examined to prove safe custody. The alleged Station Diary entry (Ext.12) was also inadmissible as the original was not produced or proved. Moreover, the brass seal given to the witness was never produced before the Court for verification, and the S.D.J.M. opened the sealed packets without comparing the seal impressions, thereby rendering the entire chain of custody doubtful. Page 8 of 15 Lastly, Mr. Panda, learned counsel pointed out several material contradictions in the prosecution evidence regarding the seal impression, the process of weighment, drawing of samples, sealing, and even the colour of the seized contraband. While P.W.2 stated that the seal bore the full name of the S.I. of Excise, P.W.4 stated that it carried only his initials. The two official witnesses also contradicted each other, who actually drew and sealed the samples and how the samples were dealt with by the learned Magistrate. Further, while the witnesses described the seized substance as resembling ash of incense sticks, the chemical examiner’s report described it as light brown in colour, showing that the seized material and the tested sample were not the same. 9. In view of these glaring discrepancies, contradictions, and procedural lapses, it was argued that the prosecution has failed to prove its case beyond reasonable doubt. The learned trial Court, instead of appreciating these material infirmities, wrongly treated them as minor in nature. Hence, the conviction and sentence recorded against the appellant are unsustainable in law and liable to be set aside. Page 9 of 15 10. I have carefully gone through the evidence on record and the appreciation of the evidence made by the learned trial Court to support the reasonings for convicting the appellant for the offence under Section 21(b) of the N.D.P.S. Act. 11. I have also carefully analysed the judgment cited by the learned counsel in order to create a doubt in the prosecution story regarding the non-compliance of the statutory safe-guards contemplated under the Act. 12. Learned counsel for the appellant, in order to establish its case that the prosecution has failed to comply with the statutory safe- guards contemplated under Section 100 of the Cr. P.C., has relied upon the judgment of this Court in the case of Kanduri Charan Mohanty vs. State of Orissa, reported in (2003) 24 OCR- 3. In the