Orissa High Court
Dalsher Singh vs State Of Orissa on 22 May, 2026
Author: A.K. Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.264 of 2024
An application under Section 374(2) of the Code of Criminal Procedure, 1973.
Dalsher Singh ... Appellant
Represented By Adv.
Dr. Menaka Guruswamy
(Sr. Adv. Supreme Court Of India), with
Mr. Tirth Kumar Sahu, Advocate
-versus-
State of Orissa ... Respondent
Represented By Adv.
Mr. Sasmita Nayak, A.S.C.
CORAM:
THE HON'BLE MR. JUSTICE A.K.MOHAPATRA
Date of hearing : 31.03.2026 | Date of Judgment : 22.05.2026
A.K. Mohapatra, J. :
1. The present CRLA petition has been filed by the Appellant,
Dalsher Singh, son of one Vazeer Singh and a resident of village
Mokhrakheri, in the district of Rohtak, Haryana, with a prayer to first admit
the appeal, call for relevant records and finally to set aside the judgment of
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conviction dated 18.03.2024 passed by the learned Special Judge (NDPS),
Rayagada in T.R. Case No. 26 of 2023, arising out of P.R. No. 51/2023-
2024 of the Officer-in-Charge, Excise Station, Rayagada.
FACTUAL BACKGROUND OF THE CASE
2. The factual background prosecution case, as it unfolded at trial,
bereft of all unnecessary details, is as follows; On 29.05.2023, between 8.00
A.M. and 11.00 A.M., an Excise Officer while conducting patrolling duty
near Rayagada Railway Station spotted the Appellant heading towards the
railway station while carrying a white-coloured jari sack on his left
shoulder. On suspicion, the officer detained the Appellant, who disclosed
his name and identity on being questioned. An independent witness, who
happened to be present at the spot, was requested to act as an impartial
witness to the proceedings. Thereafter, a search was conducted of the jari
sack in the presence of the aforesaid independent witness, upon which 30
Kg. 300 grams of Ganja/cannabis was allegedly recovered from the said jari
sack. The Appellant was arrested at the spot on the same day. Upon
completion of investigation, a Final Police Report was submitted on
05.08.2023 under Section 20(b)(ii)(C) of the NDPS Act. Charges were
framed by the learned Special Judge, Rayagada on 14.08.2023, and the trial
proceeded thereafter.
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3. During the trial, the prosecution examined four witnesses (P.W. 1
to P.W. 4) and exhibited 14 documents and four material objects in support
of its case whereas the defence did not examine any witnesses. The
Appellant denied the prosecution allegations during the entirety of the trial
and set up a plea of false implication. The learned Special Judge, upon
consideration of the evidence on record, framed the following sole point for
determination, “whether on 29.05.2023 between 8.00 A.M. and 11.00 A.M.
near Rayagada Railway Station, the accused, in contravention of Section 8
of the NDPS Act, was found possessing and transporting 30 Kg. 300 grams
of Ganja/cannabis in his white-coloured jari sack, without any lawful
authority, punishable under Section 20(b)(ii)(C) of the NDPS Act”. After
hearing the respective sides and considering the evidence on record, the
learned Court below answered the issue framed in the affirmative, and vide
the impugned judgment dated 18.03.2024, has convicted the Appellant for
commission of an offence punishable under Section 20(b)(ii)(C) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, “the
NDPS Act“) and sentenced him to undergo rigorous imprisonment for a
period of 10 (ten) years and to pay a fine of Rs.1,00,000/- (Rupees One
Lakh), in default whereof to suffer further rigorous imprisonment for a
period of 1 (one) year. Pursuant to such judgement of conviction, the
Appellant has been in judicial custody since 29.05.2023. It is in the
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aforesaid background that the present appeal has been filed by the Appellant
with the aforementioned prayer.
CONTENTION ON BEHALF OF THE APPELLANT
4. Heard Dr. Menaka Guruswamy, learned senior counsel along with
Mr. Tirth Kumar Sahu, learned counsel appearing for the Appellant. The
learned senior counsel, has at the very outside pleaded the innocence of the
Appellant and vehemently assailed the impugned judgement as grossly
unfair, illegal, misleading and fallacious. The learned senior advocate has
taken the following grounds in support of her stance;
i) The basis of convicting the Appellant in the present case is the
testimony of P.W Nos. 1 to 4. The learned senior counsel contends that,
hypothetically, even if such testimonies are accepted in their entirety,
they would not suffice to establish the guilt of the Appellant. Rather, the
testimonies only go so far as demonstrating that the Appellant was found
proceeding towards Rayagada Railway Station carrying the jari sack and
that contraband ganja weighing 30 Kg. 300 grams was recovered
therefrom. It is the submission of the learned senior counsel that there is
no other clinching or independent corroborating material on record to
demonstrate that the appellant was transporting the contraband, and the
learned Trial Court erred in holding the charge established on the basis of
such bare and uncorroborated testimony.
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ii) It was submitted that the alleged search and seizure was conducted
without the presence of any genuine independent witness, which is fatal
to the prosecution case. Learned senior counsel contended that the
prosecution examined P.W No.1 (Excise Constable), P.W No.2 (Excise
Constable who was part of the raiding party), P.W No.3 (one RPF
Constable who has been projected as the independent witness in the
present matter), and P.W No.4 (the Excise Officer-in-Charge and
Investigating Officer) are all members of the Excise Department and part
of the raiding party itself. Therefore, the search and seizure was
conducted exclusively by departmental witnesses, without the
participation of any actual independent witness.
iii) Referring to the cross-examination of the prosecution witnesses,
learned senior counsel contended that the P.W No.3, who has been
projected by the prosecution as the independent witness, cannot be
regarded as such. It was submitted that the testimony of P.W No.3 on
record reveals that he joined the proceedings only at 10:40 A.M., whereas
the arrest of the appellant was made at 8:00 A.M. and the entire
proceedings from detention to seizure concluded by 11:00 A.M. P.W. 3
was, therefore, absent during the critical phase of the proceedings i.e. the
initial detention and search. Learned senior counsel has contended that
P.W No.3 is a stock witness who has merely signed the documents
without being able to disclose any details regarding the actual search and
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seizure. Furthermore, that P.W No.3 has also not obtained any permission
from his senior officer before acting as a witness and has also not
reported the incident to his superiors after the occurrence. Therefore, it
can safely be inferred that the search and search having been conducted
only by P.W No.1 and P.W No.4, both of whom are Excise officials and
interested witnesses, in the complete absence of any independent witness,
the safeguard intended by the requirement of law of independent
witnessing has been entirely negated, and the conviction founded on such
evidence cannot be sustained.
iv) The learned senior counsel, thereafter submitted that the
prosecution has failed to establish the recovery of the alleged contraband
through primary evidence, and the seizure memo (Ext. P-1/PW 1) stands
uncorroborated by any physical evidence. Moreover, since during the
course of the trial, the prosecution did not produce the contraband
articles, allegedly recovered from the Appellant, before the court. The
non-production of the seized substance before the trial Court is a serious
infirmity in the prosecution case.
v) Additionally, the prosecution has also failed to place on record any
inventory detailing the description, quantity, mode of packing, marks,
numbers or other identifying particulars of the alleged contraband, as is a
mandatory requirement under Section 52-A of the NDPS Act. The
learned senior counsel has stated before this Court that as per the record,
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the contraband allegedly recovered from the Appellant was destroyed
under Section 52-A of the NDPS Act without placing before the court any
evidence demonstrating compliance with the mandatory procedure
prescribed thereunder. Learned senior counsel submitted that the onus of
demonstrating such compliance lies squarely on the prosecution and such
onus has clearly not been discharged. Therefore, in the absence of
primary evidence pertaining to the recovery of the contraband and the
compliant destruction of the same, the charge of possession and
transportation of contraband does not survive against the Appellant. To
support her contention, the learned senior counsel has relied on Mangilal
v. State of M.P., reported in (2023) 19 SCC 364 (specifically Paras 6 and
9 thereof) and Noor Aga v. State of Punjab, reported in (2008) 16 SCC
417 (Paras 95 and 96).
vi) The learned senior counsel further submitted that the prosecution’s
claim that the seizure was a chance recovery arising out of routine patrol
is wholly false, as evidenced from the prosecution’s own record.
Referring to the Forwarding Letter dated 29.05.2023 (Ext. P-12/PW 4) it
was contended that the accused was apprehended on the basis of prior
information and, crucially, that the person of the accused was searched.
The Daily Diary Report (Ext. P-8/PW 1) further establishes that the
operation was a pre-planned raid and not, as claimed by P.W No.4, a
chance detection during routine patrolling. Therefore, the learned senior
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counsel contended that the characterisation of the seizure as a mere
‘chance recovery’ was a deliberate misrepresentation by the Prosecution
which was made with the specific purpose of circumventing the
mandatory requirements of Section 50 of the NDPS Act.
vii) Further, referring to the provisions of Section 50 of the NDPS Act,
learned senior counsel submitted that since personal search of the
accused/Appellant was conducted in the present case, the Investigating
Officer was under a mandatory obligation to inform the appellant of his
right to be searched before a Magistrate or a Gazetted Officer as required
under Section 50(1) of the NDPS Act. Non-compliance with such
mandatory requirement is not a mere procedural irregularity but a fatal
infirmity that vitiates the entire search and seizure, and the proceeding
founded thereon. It was submitted that the purpose of Section 50(1) is to
provide an essential safeguard against the abuse of power, to protect
innocent persons from false implication, and to minimise instances of
planting false cases by law enforcement agencies. The non-compliance of
this mandatory requirement is therefore fatal to the prosecution case. to
strengthen her submission, the learned senior counsel has relied on
Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in (2011) 1
SCC 609 (specifically Para 29 thereof).
viii) Thereafter, the learned senior counsel submitted that the
investigation in the present case is also vitiated by multiple infirmities
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that render the prosecution case unreliable. It was contended that the
weighing machine used during the seizure was neither tested nor was any
certificate of correctness of such equipment produced before the learned
Trial Court. Moreover, not only were none of the prosecution witnesses
able to depose regarding the verification of the weighing machine, but
also the P.W No.3 was uncertain about its maximum weighing capacity of
the machine. Learned senior counsel contended that the complete absence
of any verification of the measuring instrument fundamentally
undermines the prosecution’s case since the possibility of false
implication cannot be ruled out. As such, the learned trial Court should
have given the benefit of doubt to the Appellant-accused.
ix) Similarly, learned senior counsel has questioned the evidentiary
value of the Spot map (at Ext. P-2/PW 1) since it does not disclose the
date or time of its preparation, and fails to reflect the actual topography of
the location near Rayagada Railway Station which is a densely populated
area with a taxi stand, parking lot, and shops nearby. Likewise, the
learned senior counsel has also flagged the chemical examination report,
which is the foundational piece of evidence on the ground that it was not
proved by the expert who had prepared the report, since he was not
examined by the prosecution as a witness. An unproved expert report
cannot be the basis for conviction under a statute where the identity of the
substance as a narcotic drug is an essential ingredient of the offence. The
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learned senior counsel has also alleged violation of Appellant’s
fundamental right under Article 21 of the Constitution of India since all
documents prepared during the search and seizure, on which the
signatures of the accused were obtained, were prepared in the Odia
language and there has been no communication of such documents in the
vernacular language of the Appellant, who happens to be a resident of
Rohtak, Haryana.
x) Lastly, learned senior counsel has contended that the learned trial
Court has failed to engage meaningfully with the submissions of the
defence, and the impugned judgment reflects a selective appreciation of
the evidence. It was submitted that the learned trial Court has instead
adopted a pick-and-choose method, relying on those portions of the
evidence that supported the prosecution’s version while ignoring material
contradictions and omissions that emerged in the cross-examination of the
witnesses and were argued by the defence. Learned senior counsel
contended that it is a settled principle of law where two views are
reasonably possible on the evidence on record, the view that is more
favourable to the accused must be adopted. However, in the present
instance the learned Trial Court failed to apply the aforesaid principle and
consider the materials available on record in their proper perspective
before convicting the accused-Appellant of the offence under Section
20(b)(ii)(C) of the NDPS Act.
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5. In view of the aforesaid submissions, the learned senior counsel
has prayed that the impugned judgment of conviction dated 18.03.2024, at
Annexure-1 to the present CRLA petition, be set aside.
CONTENTION ON BEHALF OF THE PROSECUTION
6. Heard Ms. Sasmita Nayak, learned ASC appearing for the State-
Prosecution. The learned Additional Standing Counsel has opposed the
present appeal filed by the Appellant and supported the impugned judgment
of conviction as being well-reasoned and legally sustainable. The
submissions urged by the learned Additional Standing Counsel on behalf of
the State are as follows;
i) That the prosecution case stands fully established through the oral
testimony of the four prosecution witnesses. It has been contended that
the P.W No.4 is the Investigating Officer and Officer-in-Charge, Excise
Station, Rayagada, who conducted the patrolling and effected the seizure.
P.W Nos. 1 and 2 are Excise Constables who formed part of the raiding
party and accompanied the P.W No.4. P.W No.3 is an independent
witness, namely Ushman, who was posted as an RPF Constable at
Rayagada at the relevant time and was present at the spot. The learned
ASC submits that all four prosecution witnesses have consistently and
cogently substantiated the prosecution case regarding the detention of the
Appellant, search of the jari sack, and recovery of the contraband. It has
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been submitted that the learned trial Court has rightly placed reliance
upon their testimonial evidence and convicted the Appellant.
ii) With regard to the Appellant’s plea of false implication, the learned
ASC has contended that such plea is wholly unsubstantiated. It was
submitted that during the recording of the statement of the Appellant
under Section 313(b) of the Cr.P.C, the Appellant neither offered a
credible explanation for the circumstances appearing against him nor was
he able to deny the possession of the contraband ganja. Learned ASC has
contended that the failure to furnish any reasonable explanation when
specifically questioned on the incriminating circumstances lends
additional credence to the prosecution case and renders the Petitioner’s
plea of false implication wholly untenable.
iii) Referring to the express provisions of the NDPS Act, learned ASC
contended that once the prosecution establishes foundational facts of
possession, the statute places a reverse burden of proof on the accused.
Section 35 of the NDPS Act was referred to and it was contended that the
Court is required to presume the existence of a culpable mental state in
the accused, and the burden of proving the absence of such mental state
lies solely upon the accused. Moreover, Section 54 of the NDPS Act
raises a presumption of possession of a contraband article against the
person from whom it is seized. The appellant having failed to discharge
the reverse burden thus placed upon him, the learned Trial Court was
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justified in drawing the statutory presumptions and recording the
conviction.
iv) Regarding the Petitioner’s contention of non-compliance of
Section 42 of the NDPS Act, the learned ASC submits that such challenge
is without any merit on the facts of this case. It is a settled proposition of
law that where information of the commission of an offence comes to the
notice of the Investigating Officer not through prior specific intelligence
but in the course of routine patrolling or during investigation of some
other matter, strict compliance with the pre-search requirements of
Section 42 is not mandated. Since the present case arose from regular
patrolling by the Excise staff and involved a chance detection of the
Appellant with the contraband, the learned ASC submits that the
provision of Section 42 would not be attracted to the present case and, as
such, the non-compliance thereof cannot be urged as a ground to vitiate
the seizure and ultimately the conviction of the accused.
v) Likewise, addressing the Appellant’s challenge founded on non-
compliance of Section 50 of the NDPS Act, it has been submitted by the
learned ASC that such challenge loses ground in the face of the bare facts
of the case. It was submitted that where the Investigating Officer or
empowered officer acts on positive suspicion arising from direct
observation, as distinct from acting on prior specific information that a
particular person is carrying any contraband, the protection afforded by
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Section 50 of the NDPS Act requiring intimation of the right to be
searched before a Magistrate or Gazetted Officer is not triggered. In this
context, reliance has been on the judgement in State of Punjab v. Baldev
Singh, reported in (1999) 6 SCC 172. It is the learned ASC’s contention
that since in the present case the Excise Officer acted on suspicion arising
from direct observation of the Appellant carrying the sack, the provision
under Section 50 of the NDPS Act was not required to be complied with.
vi) Similarly, learned ASC contends that the reliance placed by the
defence on the judgment in Mohan Lal v. State of Punjab, reported in
(2018) 17 SCC 627 is misplaced, since Mohan Lal‘s case (supra) has
been overruled by the Hon’ble Supreme Court in Mukesh Singh v. State
(Narcotic Branch), reported in (2020) 10 SCC 120.
7. In view of the foregoing submission, learned Additional Standing
Counsel submits that the impugned judgment dated 18.03.2024 passed by
the learned Special Judge, Rayagada is legally sound and calls for no
interference by this Court, at this stage. Accordingly, it was prayed that the
present appeal be dismissed and the conviction and sentence imposed vide
the impugned judgement of the trial Court be confirmed.
ANALYSIS OF THE COURT
8. Heard the learned senior advocate along with the learned counsel
for the Appellant and the learned ASC for the State-Prosecution, perused the
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documents on record including the TCR, the impugned judgement, and the
written submissions and case laws cited by respective parties. The present
criminal appeal has been filed under Section 374(2) of the Cr.P.C. assailing
the impugned judgement dated 18.03.2024, under Annexure-1, wherein the
Appellant has been convicted of commission of the offence under section
20(B)(ii)(C) of the NDPS Act and has been sentenced to undergo ten years
of rigorous imprisonment and to pay a fine of Rs.1,00,000/- (Rupees One
Lakh), in default whereof to undergo further one year rigorous
imprisonment. Moreover, the Petitioner has been in judicial custody since
29.05.2023.
9. In order to effectively adjudicate the present appeal and assess the
tenability of the Appellant’s challenge to the impugned judgment, this Court
is required to first determine whether the search of the Appellant arose from
a pre-planned raid or constituted a chance recovery and, consequent thereto,
to examine the scope of applicability of Section 50 to the facts of the present
case. That said, before proceeding to examine the facts of the present case
against the applicable legal standard, it is necessary to set out with precision
the statutory architecture of Sections 42, 43 and 50 of the NDPS Act, since
both the prosecution and the Appellant’s submissions proceed on a
conflation of such provisions. Section 42 of the NDPS Act confers the
power of entry, search, seizure and arrest without warrant upon empowered
officers. The provision is activated by prior information, specifically where
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an officer has reason to believe, from personal knowledge or from
information received, that an offence in respect of a narcotic drug or
psychotropic substance has been committed or is about to be committed.
Section 42(2) sets out the procedural requirement to the effect that if the
officer takes action under sub-section (1) between sunset and sunrise, he
shall record the grounds of his belief before taking action; and where it is
not practicable to obtain a warrant, he shall forthwith send a copy of such
grounds to his immediate official superior. In effect, Section 42 is the prior
information-based search provision. Its twin procedural obligations, i.e. the
recording of grounds of such prior knowledge and the forwarding of a copy
thereof to a superior, are safeguards designed to prevent abuse of a wide
powers under the section.
10. Likewise, Section 43 of the NDPS Act confers power of seizure
and arrest in public places including any public conveyance, building,
receptacle, enclosed space, or premises accessible to the public. Unlike
Section 42, Section 43 does not require any prior information as a
precondition. Instead, it is activated by the officer’s reason to believe that a
person in a public place is in possession of a narcotic drug or psychotropic
substance in contravention of the Act. Therefore, Section 43 is the provision
that governs ‘chance encounters’, i.e. detections that arise not from prior
information but from suspicion/reason to believe in a public place.
Therefore, in an instance where the conditions of Section 43 are met, the
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officer’s authority to detain, search and seize rests on Section 43 alone and
not the requirements under Section 42.
11. Now, Section 50 of the NDPS Act, on the other hand, is
structurally different from the above provisions in Sections 42 and 43. It is
not an independent source of search power. Rather, it is a procedural
safeguard which operates as a condition precedent to the exercise of the
powers of search whenever the search of a person is conducted on suspicion.
Section 50(1) provides:
“When any officer duly authorised under Section 42 is about to
search any person under the provisions of Section 41, Section 42 or
Section 43, he shall, if such person so requires, take such person
without unnecessary delay to the nearest Gazetted Officer of any of
the departments mentioned in Section 42 or to the nearest
Magistrate.”
Three distinct characteristics of Section 50(1) are immediate clear.
Firstly, the provision applies to searches conducted under Sections 41, 42 or
43 of the NDPS Act, i.e. it is not confined to prior information-based
searches. Instead, it expressly encompasses Section 43 searches. Secondly,
the obligation to comply arises the moment the officer is “about to search”
the person. This implies it is a pre-search obligation and a condition
precedent. Thirdly, the provision places the obligation on the officer
conducting the search and not on the accused, i.e. the officer must inform
the person of the right and it is not for the accused to demand adherence to
such precondition as a right. So far as the objective of Section 50 is
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concerned, it has been consistently identified by the Supreme Court asintended to provide a necessary check against misuse of wide powers of
search and seizure, to protect innocent persons from false implication
through planting of contraband, and to ensure the integrity of the search
process through the presence of an independent Gazetted Officer or
Magistrate. Therefore, it can safely be inferred that the provision is not a
mere procedural formality, but a substantive safeguard embedded in the
statute as a counterweight to the extraordinary powers conferred on officers
empowered under the Act.
12. So far as the concept of a ‘chance recovery’ is concerned, the
expression does not appear anywhere in the text of the NDPS Act. Instead, it
is a judicially evolved concept developed in the context of Section 42 to
address situations where an officer discovers contraband not pursuant to
prior information but incidentally, in the course of routine duty/patrolling.
The foundational decision in this context is State of Punjab v. Balbir Singh,
reported in (1994) 3 SCC 299, where a three-judge bench of the Supreme
Court, while examining the interplay between Sections 41, 42, 43, 49 and
50, laid down a detailed framework of the circumstances in which each
provision operates.
13. Thereafter, in State of Punjab v. Baldev Singh, reported in (1999)
6 SCC 172, a five-judge Constitution Bench of the Hon’ble Supreme Court,
acting on a reference to clarify the conflicting views among two-judge and
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three-judge Benches on the requirements of Section 50, held that therequirements of Section 50(1) are mandatory and must be complied with
before a personal search of a person is undertaken. It was observed that
when an empowered officer or a duly authorised officer acting on prior
information is about to conduct search on a person, it shall be a mandatory
pre-condition for such officer to inform the person about to be searched of
his right under Section 50(1) of the NDPS Act to be searched before a
Gazetted Officer or a Magistrate and failure to so inform would cause
prejudice to the person being searched and thereby vitiate the trial. (see
paragraph 57 of the Constitution Bench judgement). Relevant portions of
the judgement are quoted hereinbelow;
“28. This Court cannot overlook the context in which the NDPS Act
operates and particularly the factor of widespread illiteracy among
persons subject to investigation for drug offences. It must be borne
in mind that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a statute are
scrupulously followed. We are not able to find any reason as to why
the empowered officer should shirk from affording a real
opportunity to the suspect, by intimating to him that he has a right
“that if he requires” to be searched in the presence of a gazetted
officer or a Magistrate, he shall be searched only in that manner.
As already observed the compliance with the procedural safeguards
contained in Section 50 are intended to serve a dual purpose — to
protect a person against false accusation and frivolous charges as
also to lend creditability to the search and seizure conducted by the
empowered officer. The argument that keeping in view the growing
drug menace, an insistence on compliance with all the safeguards
contained in Section 50 may result in more acquittals does not
appeal to us. If the empowered officer fails to comply with the
requirements of Section 50 and an order or acquittal is recorded onPage 19 of 30
that ground, the prosecution must thank itself for its lapses. Indeed
in every case the end result is important but the means to achieve it
must remain above board. The remedy cannot be worse than the
disease itself. The legitimacy of the judicial process may come
under a cloud if the court is seen to condone acts of lawlessness
conducted by the investigating agency during search operations
and may also undermine respect for the law and may have the effect
of unconscionably compromising the administration of justice. That
cannot be permitted.
***
57. On the basis of the reasoning and discussion above, the
following conclusions arise:
(1) That when an empowered officer or a duly authorised officer
acting on prior information is about to search a person, it
is imperative for him to inform the person concerned of his right
under sub-section (1) of Section 50 of being taken to the nearest
gazetted officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence
of his right to be searched before a gazetted officer or a Magistrate
would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior
information, without informing the person of his right that if he so
requires, he shall be taken before a gazetted officer or a Magistrate
for search 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 his person, during a search
conducted in violation of the provisions of Section 50 of the Act.
(4) That there is indeed need to protect society from criminals. The
societal intent in safety will suffer if persons who commit crimes are
let off because the evidence against them is to be treated as if it
does not exist. The answer, therefore, is that the investigating
agency must follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by the higher
authorities seriously inviting action against the official concernedPage 20 of 30
so that the laxity on the part of the investigating authority is curbed.
In every case the end result is important but the means to achieve it
must remain above board. The remedy cannot be worse than the
disease itself. The legitimacy of the judicial process may come
under a cloud if the court is seen to condone acts of lawlessness
conducted by the investigating agency during search operations
and may also undermine respect for the law and may have the effect
of unconscionably compromising the administration of justice. That
cannot be permitted. An accused is entitled to a fair trial. A
conviction resulting from an unfair trial is contrary to our concept
of justice. The use of evidence collected in breach of the safeguards
provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have
been duly observed would have to be determined by the court on the
basis of the evidence led at the trial. Finding on that issue, one way
or the other, would be relevant for recording an order of conviction
or acquittal. Without giving an opportunity to the prosecution to
establish, at the trial, that the provisions of Section 50 and,
particularly, the safeguards provided therein were duly complied
with, it would not be permissible to cut short a criminal trial.
(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person intended to
be searched, we do not express any opinion whether the provisions
of Section 50 are mandatory or directory, but hold that failure to
inform the person concerned of his right as emanating from sub-
section (1) of Section 50, may render the recovery of the
contraband suspect and the conviction and sentence of an accused
bad and unsustainable in law.
(7) That an illicit article seized from the person of an accused
during search conducted in violation of the safeguards provided in
Section 50 of the Act cannot be used as evidence of proof of
unlawful possession of the contraband on the accused though any
other material recovered during that search may be relied upon by
the prosecution, in other proceedings, against an accused,
notwithstanding the recovery of that material during an illegal
search…”
(Emphasis Supplied)
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14. In the present case at hand, it is the Appellant’s contention that the
officer conducting the search of the Appellant ought to have followed the
procedure laid down in Section 50(1) of the NDPS Act. The state-
Prosecution argues that the empowered officer mere had positive suspicion
on the Appellant and no reason to believe or prior information that he was
carrying any contraband article. As such, the Prosecution’s stance is that
there was no reason for the empowered officer to comply with Section 50.
Now, so far as applicability of the Section 50(1) of the NDPS Act in a
chance recovery is concerned, the law in that regard is well-settled (see
State of Punjab v. Baldev Singh, reported in (1999) 6 SCC, State of
Himachal Pradesh v. Sunil Kumar, reported in (2014) 4 SCC 780,
Bharatibhai Bhagwanjibhai v. State of Gujarat, reported in (2002) 8 SCC
327) that mere positive suspicion entertained by the empowered officer
cannot be equated with prior information and that where the recovery of the
contraband is pursuant to a clear chance recovery, it is not necessary for the
empowered officer conducting the search to comply with the provision of
Section 50 of the NDPS Act.
15. However, for the aforesaid principle to be applicable, it must be
clear that the recovery of the contraband was pursuant to a chance recovery.
In this context, this Court diverts its attention to the LCR, specifically the
Exhibit 12, which contains the forwarding letter dated 29.05.2023 by the
Officer-in-Charge to the Assistant Chemical Examiner, Divisional Excise
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Chemical and Testing Laboratory, Berhampur. On perusal of the letter, it is
revealed that the Officer-in-Charge of the Rayagada Excise Station headed
towards the Rayagada Railway Station on 29.05.2023 and while “acting on
information” conducted the search on the accused. Similarly, on an
examination of Exhibit-8 to the LCR, which contains the Command
Certificate with respect of two (P.W Nos.1 and 2) out of the four
prosecution witnesses, it can be seen that their ‘Description of Duty’ as
mentioned therein suggests that they were directed to go on patrolling duty
on 29.05.2023 for “assist in raid”. Considering the inferences derived from
the perusal of both the aforementioned Exhibits, a strong impression is
created in the mind on this Court that the eventual search and seizure carried
out in respect of the Appellant was in accordance of some information
which was already available to the officers. As has already been clarified
above, in a such a scenario where the search of the accused was conducted
in furtherance of prior information, the compliance with the procedure
enacted under Section 50 of the NDPS Act becomes inescapable. It is clear
from the facts of the case, and the State-prosecution’s own admittance, the
procedure under Section 50 has not been followed in the present case.
Therefore, the evidence collected in furtherance of such tainted search,
stands vitiated.
16. Next, the Appellant has taken the ground that the proceeding and
the eventual conviction suffers from fatality since no independent witness
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was present in the case. On a conscription of the facts, it can be seen that it
is the P.W No.3 who has been tagged as the independent witness for the
sake of the search conducted on the Appellant. As per the impugned
judgement available in the TCR, the entire exercise of search of the
Appellant was undertaken between 8:00 am to 11:00 am on 29.05.2023.
According to the P.W No.3, as is evidenced from his deposition, the
occurrence took place at around 10:40am on that day. Furthermore, it is also
evident from the deposition of P.W No.3 that he was not able to identify the
vehicle used by the excise officers, nor was he able to say how many excise
officers were conducting the patrol in pursuance of which the search was
conducted. He was also unable to recall all the documents that he had
signed. Citing the aforesaid facts, the Appellant has argued that the P.W
No.3 is merely a stock witness who has been projected to be an independent
witness in the present case. As such, no independent witness can be said to
be a part of the search conducted on the Appellant. However, so far as the
presence of an independent witness is concerned, it is a settled position of
law that mere absence of an independent witness would not in itself be fatal
to the prosecution under the NDPS Act (see Dharampal Singh v. State of
Punjab, reported in (2010) 9 SCC 608; Raveen Kumar v. State of
Himachal Pradesh, reported in, 2020 SCC OnLine SC 869; Jothi @
Nagajothi v. The State, reported in 2025 INSC 1417).
Page 24 of 30
17. In a similar vein, the Appellant has urged that the non-compliance
of Section 52-A of the NDPS Act by the Prosecution coupled with the non-
production of the contraband articles before the magistrate and destruction
thereof without placing on record any evidence of compliance of the
procedure under section 52-A, clearly compromises the Prosecution. So far
as section 52-A of the NDPS Act is concerned, the provision prescribes a
detailed procedure for the disposal of seized narcotic drugs and psychotropic
substances. Where the seized contraband is to be destroyed, the officer
empowered is required to make an application to the Magistrate, and the
Magistrate is required to certify the inventory, draw representative samples
in the presence of the accused, and issue a certificate. The rationale behind
the provision is clear, in a prosecution where the identity and quantity of the
substance are the very foundation of the charge, the destruction of the
substance without following the prescribed procedure eliminates the primary
evidence of the offence.
18. Since the Appellant has assailed the validity of his conviction on
the ground of non-compliance with Section 52-A, it becomes necessary to
examine the legal position as to whether compliance with the said provision
is mandatory and the consequences that ensue from its breach. In this
context, recently the Hon’ble Supreme Court in Bharat Aambale v. State of
Chhattisgarh, reported in (2025) 8 SCC 452 has clarified the position
regarding compliance with Section 52-A and observed that;
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“24.1 First, that the object behind insertion of Section 52-A of
the NDPS Act was to provide for a mechanism for the early
disposal of the seized narcotic drugs and psychotropic substances,
having regard to the hazardous nature, vulnerability to theft,
substitution, constraints of proper storage space and other relevant
considerations…
24.2. Secondly, Section 52-A sub-section (2) prescribes the
procedure for the purpose contemplated under sub-section (1) i.e.
for the disposal of the seized contraband. Any breach, deviation or
delay in the said procedure would at most be termed as an
irregularity and not an illegality which would nullify or vitiate the
entire case of the prosecution. Mere non-compliance of the
procedure envisaged under Section 52-A of the NDPS Act will not
entitle the accused to acquittal or bail, if there is sufficient material
to establish the search and seizure of the contraband in due
compliance of the mandatory provisions of the Act. The relevant
observations read as under: (Kashif case [Narcotics Control
Bureau v. Kashif, (2024) 11 SCC 372] , SCC pp. 390, 395-96, paras
32-35, 46-47 & 50)…
***
56.1. Although Section 52-A is primarily for the disposal and
destruction of seized contraband in a safe manner yet it extends
beyond the immediate context of drug disposal, as it serves a
broader purpose of also introducing procedural safeguards in the
treatment of narcotics substance after seizure inasmuch as it
provides for the preparation of inventories, taking of photographs
of the seized substances and drawing samples therefrom in the
presence and with the certification of a Magistrate. Mere drawing
of samples in the presence of a gazetted officer would not constitute
sufficient compliance of the mandate under Section 52-A sub-
section (2) of the NDPS Act.
***
56.5. Mere non-compliance of the procedure under Section
52-A or the Standing Order(s)/Rules thereunder will not be fatal to
the trial unless there are discrepancies in the physical evidence
rendering the prosecution’s case doubtful, which may not have been
there had such compliance been done. Courts should take a holistic
and cumulative view of the discrepancies that may exist in thePage 26 of 30
evidence adduced by the prosecution and appreciate the same more
carefully keeping in mind the procedural lapses.
***
56.7. Non-compliance or delayed compliance of the said
provision or rules thereunder may lead the court to drawing an
adverse inference against the prosecution, however no hard-and-
fast rule can be laid down as to when such inference may be drawn,
and it would all depend on the peculiar facts and circumstances of
each case.
56.8. Where there has been lapse on the part of the police in
either following the procedure laid down in Section 52-A of the
NDPS Act or the prosecution in proving the same, it will not be
appropriate for the court to resort to the statutory presumption of
commission of an offence from the possession of illicit material
under Section 54 of the NDPS Act, unless the court is otherwise
satisfied as regards the seizure or recovery of such material from
the accused persons from the other material on record.”
(Emphasis Supplied)
19. It is clear that mere non-compliance with Section 52-A would not
in itself vitiate the trial. However, given other attending circumstances, such
non-compliance can lead to a negative inference. In the present case at hand,
no evidence of preparation of inventory (description, quantity, mode of
packing etc.) of the contraband allegedly recovered from the Appellant has
been provided. In this context, reference may be had to the Hon’ble
Supreme Court’s dictum in Mangilal v. State of M.P., reported in (2023) 19
SCC 364, wherein it has been specifically observed (in para 9) that before
any proposed disposal/destruction of the contraband article, the mandate of
Section 52-A of the NPDS Act requires to be duly complied. It is incumbent
on the trial Court to satisfy itself with such compliance while deciding the
Page 27 of 30
case. The Hon’ble Supreme Court, referring to its earlier pronouncement in
Noor Aga v. State of Punjab, reported in (2008) 16 SCC 417, has observed
that the production of seized material is a factor to establish seizure
followed by recovery. It must be borne in mind that the provisions of the
NDPS Act are both stringent and rigorous and therefore the burden heavily
lies on the prosecution. It was also observed that, non-production of
physical evidence, would lead to a negative inference within the meaning of
Section 114 Illustration (g) of the Evidence Act, 1872. In the present case,
the Appellant has asserted that no primary evidence concerning the alleged
recovery of contraband from him has been adduced. The alleged contraband
articles were also not produced during trial. The State-Prosecution has failed
to controvert the said assertion. In such circumstances and given the fact
that the spot where the alleged recovery has been made was a crowded area
near the railway station, this Court finds that an additional layer of doubt is
cast upon the prosecution case.
20. Lastly, the Appellant’s side has also pointed out a several other
infirmities in the prosecution case. The Spot map, at Exhibit-2, does not
depict the nature/topography of the surrounding area, which, as per the
Appellant is a densely populated public space with a taxi stand, parking lot,
shops, and government eateries. Furthermore, the Appellant has claimed that
the weighing machine used to determine the quantum of the alleged
recovery, was not tested. It bars mentioning that the quantity of the alleged
Page 28 of 30
contraband recovered is a crucial aspect of any case under Section
20(b)(ii)(C) of the NDPS Act. In the instant case, no certificate of
calibration or correctness of the weighing machine used during the seizure
was produced. None of the witnesses have deposed regarding the
verification of the weighing machine and the independent witness P.W No.3
has stated in his deposition that no documentary verification of the weighing
machine was done in his presence. Likewise, the Appellant has also raised
doubts regarding the validity of the Chemical Examination Report, which
naturally forms a foundational piece of evidence in the instant case. The
chemical examiner V.C. Patro, who prepared the chemical examination
report, has not been examined as a witness by the Prosecution. This court is
of the considered view that in the context of NDPS cases specifically, the
failure to examine the chemical examiner, to corroborate his report, is a
serious infirmity.
21. In view of the foregoing analysis, on a cumulative effect of the
infirmities in the prosecution, this Court is of the considered view that the
Prosecution has failed to discharge the initial burden of establishing the
foundational facts that legalise the initial search conducted on the Appellant
and by extension the recovery of contraband article. In the absence of such
foundational proof, the reverse burden provisions under Sections 35 and 54
of the NDPS Act cannot be invoked against the Appellant. As such, this
Court is of the considered opinion that the conviction of the appellant under
Page 29 of 30
Section 20(b)(ii)(C) of the NDPS Act is unsustainable in law, and the
impugned judgment of the learned Special Judge, Rayagada dated
18.03.2024, at Annexure-1 to the present CRLA petition, is liable to be set
aside. As such, the impugned judgement at Annexure-1 is hereby set-aside.
The appellant, if in custody, shall be set at liberty forthwith.
22. Accordingly, the appeal stands allowed. There shall be no order as
to costs.
(A.K. Mohapatra)
(Judge)
Orissa High Court, Cuttack
The 22nd May, 2026/S.K.Sethi/P.A.
Signature Not Verified
Digitally Signed
Signed by: SISIR KUMAR SETHI
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 25-May-2026 13:33:31
Page 30 of 30
