Orissa High Court
973) vs State Of Orissa on 22 May, 2026
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.131 of 2007
(In the matter of an appeal under Section 374 of the Code of Criminal Procedure,
1973)
Aruna Kumar Dash ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. B.S. Dasparida, Advocate
For the Respondent : Mr. Sobhan Panigrahi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 07.05.2026 :: Date of Judgment: 22.05.2026
S.S. Mishra, J. The appellant, in this Criminal Appeal, has assailed the
Judgment of conviction and order of sentence dated 26.02.2007 passed
by the learned 1st Additional Sessions Judge-cum-Special Judge, Puri in
T.R. Case No.5/1 of 2005, whereby the learned Court below, finding the
appellant guilty of commission of the offence punishable under Section
20(b)(ii)(B) of the N.D.P.S. Act and sentenced him to undergo R.I. forfive years and to pay a fine of Rs.30,000/- (Rupees thirty thousand), in
default, to undergo R.I. for a further period of one year under Section
20(b)(ii) of the N.D.P.S. Act.
2. Heard Mr. B.S. DasParida, learned counsel appearing on behalf of
the appellant and Mr. Sobhan Panigrahi, learned Additional Standing
Counsel appearing on behalf of the Respondent-State.
3. The prosecution case in terse and brief is that on 04.12.2004, when
the S.I. of Excise R.K. Praharaj along with his staff were performing
patrolling duty at Chandanpur, they received information from reliable
source that a person was travelling in a bus carrying ganja. Immediately,
he intimated the said fact to his higher authority, who was the Inspector
of Excise. Accordingly, they proceeded to the spot. At about 9 A.M., he
found a person, who was the accused, getting down from the bus
carrying a jari gunny bag on his shoulder. On suspicion, the police
officers detained the said person. The accused, after disclosing his
identity, expressed his intention to be searched. He also gave option to
the accused whether he intends to be searched in presence of an
Page 2 of 11
Executive Magistrate or a Gazetted Officer to which the accused gave
his option to be searched in presence of the Gazetted Officer, who was
the Inspector of Excise present there. The S.I. of Excise searched the
accused in presence of the Inspector of Excise and found 15 kgs. 200
grams of contraband ganja. Hence, the case.
4. On the basis of the aforementioned allegations, the F.I.R. was
registered against the appellant and investigation was carried out.
Thereafter, upon submission of the report under Section 173 of the
Cr.P.C., and on the stance of denial of charges, the accused was put to
trial.
5. In order to substantiate the charge, the prosecution has examined
as many as three witnesses, out of whom P.W.3 was the S.I. of Excise,
who received the reliable information. P.W.1 was the Inspector of Excise
and P.W.2 was the A.S.I. of Excise, who were present at the time of
search and seizure. No evidence was adduced on behalf of the defence.
6. The learned trial Court has given the findings, which reads thus:
“Thus from the mandates of the decision that evidence of
official witnesses cannot simply be discarded and in order to
avoid any amount of foul play of false implication, strictPage 3 of 11
scrutiny and independent corroboration has been insisted
upon. In the instant case, no doubt P.W.3 picked upon the
conductor of the bus from where the accused alighted and thus
in the sense was declined his examination in Court, is citing
the conductor of the bus as a witness, P.W.3 has maintained
transparency in conducting search and seizure. Nothing has
been elicited from the evidence of these witnesses to raise any
suspicion or doubt about the search and seizure.
14. So far as performance of duty of P.W.3 is concerned,
P.W.1, who is the higher authority, in the cross-examination,
has stated that P.W.3 was on mobile duty, which can be
ascertained from the daily diary maintained in the office. Copy
of such diary is being furnished to the Superintendent of Excise
once in a week. P.W.3 himself has stated that he maintained
diary showing his performance of duty as per the Excise
Manual. Even though copy of the said diary has not been
furnished, when P.W.1, the higher authority of P.W.3 has
deposed about his performance of his patrol duty, there is
nothing to disbelieve him and no advantage can be given to the
accused for non-production of the diary.
15. So far as the despatch of sample packet to State
Drugs Research Laboratory, Bhubaneswar is concerned, the
evidence of P.W.3 shows that he sent the sample through
constable Subash Chandra Mohapatra and receipt of the same
has been duly acknowledged by the Chemical Examiner vide
receipt Ext.7. In para-11 of the cross-examination, it is elicited
that the said constable was deputed on the strength of the
command certificate, issued by him, though command
certificate is available in the office, he has not seized the same.
Such lacuna in the prosecution case also is of no help to the
accused when receipt of the sealed packet has been
acknowledged by the Chemical Examiner, who found the seal
to be intact. Thus, from the evidence of the witnesses, as
discussed above, it is abundantly clear that on 4-12-04 while
P.W.3 along with his staff were performing duty, detected the
accused, who was found in possession of the narcotic ganja
and the oral evidence of P.Ws.1, 2 and 3 with regard to the
recovery of the ganja find support from the report of the
Chemical Examiner (Ext.8) from which it appears that onPage 4 of 11
examination he found the sample to be ganja (cannabis) as
described u/s. 2(iii) (b) of the N.D.P.S. Act. P.W.3 has
complied all the mandatory provisions of the N.D.P.S. Act.
Thus, P.Ws.1 to 3 are found to be reliable witnesses and simply
because they are official witnesses, their evidence cannot be
discarded, who have stood the cross-examination well.
16. Accordingly, the prosecution case is proved beyond all
reasonable doubt that the accused was found to be in
possession of ganja (Cannabis) and thus he is found guilty of
the offence under Section 20(b)(ii)(B) of the N.D.P.S. Act and
is convicted thereunder.”
7. Being aggrieved by the aforementioned findings of the learned
trial Court which culminated into conviction and sentence, the appellant
has filed the present appeal challenging the same on various grounds.
8. Learned counsel for the appellant has submitted that in the present
case, only three witnesses have been examined. Reading of the evidence
of P.W.1, the Inspector of Excise, who had searched and seized the
contraband, would make the case of the appellant very clear that, in the
present case, there was a clear non-compliance of the mandatory safe-
guard provided under Section 50 of the N.D.P.S. Act. He has drawn the
attention of this Court to paragraph-2 of the evidence of the said witness,
which reads thus:
“2. Thereafter, we concealed ourselves near the bus-stand
and after sometime we found a person getting down from the
bus and coming with a jari bag and the SI of Excise detainedPage 5 of 11
him out of suspicion. Thereafter the SI of Excise after
disclosing his identity, asked the said person that he is
suspected to be carrying ganja and gave him option if he
intends to be searched in presence of an Executive Magistrate
or a Gazetted Officer, who is the Inspector of Excise present
there. Thereafter the said person, who is the accused, gave in
writing expressing that he intends to be searched in presence
of the Inspector of Excise.”
9. Learned counsel for the appellant submitted that the Officer, who
conducted the search, has adopted a procedure which is directly
contravening the rigors contemplated under Section 50 of the N.D.P.S.
Act. The accused had to be appraised of his legal right to be searched
either before the Executive Magistrate or the Gazetted Officer. There
can’t be a third option to be searched before the Police Officer given
straight away jumping the first two options. Thus, the consent obtained
from the accused was not in conformity with Section 50 of the N.D.P.S.
Act. The act of the I.O. providing the third option namely, the search of
the accused in presence of the Police Officer was clearly contrary to the
procedural safeguard provided in the provision of Section 50 of the Act.
10. Mr. Sobhan Panigrahi, learned Additional Standing Counsel
appearing for the State, on the other hand, submitted that the entire
evidence brought on record by the prosecution needs to be read in
Page 6 of 11
conjunction and in unison. The case of the prosecution cannot be viewed
by simply reading of a particular portion of the evidence of one witness.
Learned counsel for the State further submitted that, if the entire oral
evidence is read in juxtapose with the documentary evidence, no fault
could be found from the findings recorded by the learned trial Court.
11. This Court has perused the entire evidence brought on record and
also analysed the submissions made by learned counsel appearing for
both the parties vis-Ã -vis the findings recorded by the learned trial Court.
The submission made by learned counsel for the appellant has force in
view of the settled position of law regarding the requirement of the
statutory compliance under Section 50 of the Act as has been decided in
the case of The State of Himachal Pradesh vs. Surat Singh1. The
evidence of P.W.1 makes it abundantly clear that the procedure
contemplated under Section 50 of the N.D.P.S. Act has not been
complied with to its letter and spirit. It is also abundantly clear that the
1
2026 INSC 240
Page 7 of 11
Inspector of Excise who himself is claiming to be the Gazetted Officer,
has given the option to the accused-appellant for his search.
12. This Court, in the case of Rukmini Pradhan and another V. State
of Orissa2 has categorically held that where a Gazetted Officer
accompanies the raiding party and remains associated with the search
and seizure operation, such officer cannot be treated as an independent
Gazetted Officer within the meaning of Section 50 of the N.D.P.S. Act.
The object underlying Section 50 is to ensure fairness, transparency and
protection against false implication by affording the accused an
opportunity to be searched before an independent and impartial
authority. Therefore, the presence of a Gazetted Officer who is already a
member of the raiding team, does not satisfy the mandatory safeguard
contemplated under the statute. The relevant observations are extracted
hereinbelow:
“9. From the testimony of P.W.9, this has become clear
that he has not only accompanied with the raiding party but2
CRLA No.104 of 2003Page 8 of 11
also personal search of the accused were carried out in his
presence. This part of the evidence of the Executive
Magistrate (P.W.9) stood corroborated with the testimony
of P.W.8, the A.S.I. of Police, Jajpur Road P.S. P.W.8 in his
evidence has stated that a requisition was sent to the
Executive Magistrate to remain present at the time of house
raid. The Executive Magistrate, who became a party, to the
raiding party cannot be utilized for the purpose of
compliance of Section 50 of the N.D.P.S. Act to carry out
the personal search of the accused persons. The Hon’ble
Supreme Court in the judgment of State of Rajasthan vrs.
Paramanand & Anr (supra) has held as under:-
“15. We also notice that PW 10 SI Qureshi informed
the respondents that they could be searched before
the nearest Magistrate or before the nearest gazetted
officer or before PW 5 J.S. Negi, the Superintendent,
who was a part of the raiding party. It is the
prosecution case that the respondents informed the
officers that they would like to be searched before
PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our
opinion, is again a breach of Section 50(1) of the
NDPS Act. The idea behind taking an accused to the
nearest Magistrate or the nearest gazetted officer, if
he so requires, is to give him a chance of being
searched in the presence of an independent officer.
Therefore, it was improper for PW 10 SI Qureshi to
tell the respondents that a third alternative was
available and that they could be searched before PW
5 J.S. Negi, the Superintendent, who was part of the
raiding party. PW 5 J.S. Negi cannot be called an
independent officer. We are not expressing any
opinion on the question whether if the respondents
had voluntarily expressed that they wanted to be
searched before PW 5 J.S. Negi, the search would
have been vitiated or not. But PW 10 SI Qureshi
could not have given a third option to the respondents
when Section 50(1) of the NDPS Act does not provide
for it and when such option would frustrate the
provisions of Section 50(1) of the NDPS Act. On this
ground also, in our opinion, the search conducted by
PW 10 SI Qureshi is vitiated. We have, therefore, no
hesitation in concluding that breach of Section 50(1)
of the NDPS Act has vitiated the search. ThePage 9 of 11
conviction of the respondents was, therefore, illegal.
The respondents have rightly been acquitted by the
High Court. It is not possible to hold that the High
Court’s view is perverse. The appeal is, therefore,
dismissed.”
10. From the facts scenario of the present case, it is evident
that P.W.9, who accompanied the raiding party and search
was carried out in his presence, cannot be termed as
independent officer as contemplated under Section 50 of
the N.D.P.S. Act. In the aforementioned circumstances, it
could be safely held that on both the counts as discussed
above, the prosecution has given a go-bye to the
compliance of Section 50 of the N.D.P.S. Act. The Hon’ble
Supreme Court in the case of Gurjant Singh v. State of
Punjab and State of Rajasthan vrs. Paramanand & Anr
(supra), has unequivocally held that compliance of the
procedural safeguard contemplated under Section 50 of the
N.D.P.S. Act is mandatory in nature.”
13. In the present case as well, the alleged Gazetted Officer was
admittedly accompanying the raiding party and remained an integral part
of the search operation. Such participation clearly destroys the element
of independence required under Section 50 of the N.D.P.S. Act. The so-
called compliance, therefore, becomes illusory and contrary to the settled
position of law laid down by the Hon’ble Supreme Court as well as this
Court. Since the mandatory procedural safeguard under Section 50 has
not been adhered to in its true spirit, the entire search and seizure stands
vitiated, rendering the conviction and sentence of the appellant
unsustainable in the eye of law.
Page 10 of 11
14. In view of the aforementioned reason, the impugned judgment of
conviction and the order of sentence dated 26.02.2007 passed by the
learned 1st Additional Sessions Judge-cum-Special Judge, Puri in T.R.
Case No.5/1 of 2005 is liable to be set aside and the appellant is entitled
for acquittal of all the charges, as the prosecution failed to prove its case
beyond all reasonable doubt.
15. The appellant is acquitted from all the charges and the bail bond
stands discharged.
16. The Criminal Appeal stands allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 22nd of May 2026, Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY Page 11 of 11
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 25-May-2026 20:33:05
