Orissa High Court
Anup Kumar Majumdar vs State Of Odisha on 13 February, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.417 of 2023
(In the matter of an appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 (corresponding to Section 415 of BNSS),
and arising from the judgment of conviction and order of sentence
dated 07.02.2023 passed by the learned Sessions Judge-cum- Special
Judge, Malkangiri in Case No. Special 2(a) CC 30/2021).
Anup Kumar Majumdar .... Appellant(s)
-versus-
State of Odisha .... Respondent (s)
Advocates appeared in the case:
For Appellant(s) : Mr. Shyam Manohar, Adv.
-versus-
For Respondent(s) : Ms. Sarita Moharana, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-28.01.2026
DATE OF 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 07.02.2023 passed by the learned Sessions
Judge -cum- Special Judge, Malkangiri in Case No. Special 2(a)CC
30/2021, whereby the Appellant has been convicted under Section
20(b)(ii)(C) of the N.D.P.S. Act, 1985 and sentenced to undergo R.I. for
ten years and to pay a fine of Rs.1,00,000/- and in default of payment
of fine, to further undergo R.I. for a further period of one year.
pg. 1
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
I. FACTUAL MATRIX OF THE CASE:
2. Bereft of unnecessary details, the case of the prosecution is that on
13.08.2021 at about 7.30 A.M. while the complainant along with his
staff was performing patrolling duty at Titibiri Chhak under
Malkangiri P.S., they noticed one TATA Indica Car bearing Regd.
No.CG-08-1432 coming from the side of Malkangiri towards Titibiri
Chhak. The car was being driven by one person, while one male and
one female person were sitting on the back seat by holding one jari
basta each on their laps and one jari basta was kept on the front seat of
the driver. On suspicion, as an acute smell of ganja was emanating
from the said vehicle, the complainant disclosed his identity and
detained them and on enquiry, the detained persons disclosed their
identity as Anup Kumar Majumdar (driver), Gobinda Gain and Mira
Biswas, but remained silent regarding the contents of the jari bastas.
The complainant informed them of their legal right under Section 50
of the NDPS Act to be searched before an Executive Magistrate or a
Gazetted Officer. The detained persons opted to be searched by the
complainant himself and gave their consent in writing. Thereafter, the
complainant gave his personal search and from which nothing
incriminating was recovered except his mobile phone, handkerchief,
pen, spectacles and money purse. Thereafter, the personal search of
the accused person was conducted. Subsequently, in the presence of
the witnesses, the TATA Indica Car was searched and three jari bastas
containing contraband ganja were recovered from inside the said
vehicle. Thereafter, the complainant took some contents of the same,
pg. 2
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
rubbed it, burnt it and out of its smoke, colour, his departmental
experience and special narcotic training, opined that the seized
substance was ganja. On weighment, each jari basta was found to be
net 24 kg. of ganja, totalling 72 kg of ganja for which weighment chart
was prepared. Thereafter, the complainant seized the contraband
ganja along with the TATA Indica Car from the three accused persons
in presence of the witnesses and prepared the seizure list. Thereafter,
the complainant drew two packets of samples from each of the jari
bastas of 25 grams and sealed the same by paper slip and brass seal
and marked the jari bastas as A, B and C and the sample packets were
marked as Al, A2 to C1, C2. Thereafter, the brass seal was handed
over in zima of witness Jagannath Bagh. The contents of the seizure
list were read over and explained to the accused persons, who were
thereafter arrested and forwarded to the Court.
3. Upon completion of investigation, P.R. was submitted against the
Appellant and other co-accused persons for the offence under Section
20(b)(ii)(C) of the NDPS Act.
4. 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:
5. In assailing the impugned judgment, learned counsel for the
Appellant Mr. Shyam Manohar submitted that there are material
pg. 3
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
contradictions in the statement of the witnesses. There is no iota of
evidence against the Appellant to have committed the crime.
6. He further submits that in the present case, the compliance of Section
50 was not made properly nor the seized property was kept in safe
custody as per the provisions of Section 57 of the NDPS Act, that was
also ambiguous because the C-7 register which was proved by the
prosecution is a normal binding register and the same is not in proper
form.
7. He further submits that, from the prosecution story it is evident that
the place of detection was Titibiri Chhak but the independent witness,
P.W.5 stated that, the Chhak belongs to village Tindiki and Titibiri
Chhak is at a distance of 7 to 8 kilometers. In view of that, the
prosecution story is also doubtful regarding preparation of many vital
documents in this case.
8. He further contends that the person who transported the sample to
Forensic Lab an essential witness for establishing the chain of custody
has not been examined by the prosecution. In the absence of the said
witness, the prosecution has failed to explain how and under what
circumstances, the sample drawn by the Magistrate reached the
Laboratory. So, any act done by such person cannot be relied upon
when the accused has been deprived of the right to cross-examine that
witness. Moreover, even the F.S.L. officer has not been examined at
least to the fill lacuna in the prosecution case.
pg. 4
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
9. He further submits that the brass seal which was used for the purpose
of sealing in the present case has produced by the I.O. instead of by
the independent witness who had taken the same in zima.
10.He further contends that in the present case, the independent
witnesses with regard to the search and seizure, P.W.2, having turned
hostile deposing that his signature was obtained on some papers at
the instance of the Excise Inspector and had not taken any brass seal
in his zima, which is fatal to the prosecution case. In support of his
contention, he placed reliance in the case of Gorakh Nath Prasad v.
State of Bihar1, the relevant paragraph of which is reproduced below:
“7. The remaining prosecution witnesses being police
officers only, it will not be safe to rely upon their testimony
alone, which in any event cannot be sufficient evidence by
itself either with regard to recovery or the seized material
being ganja. No explanation has also been furnished by the
prosecution for non-production of the ganja as an exhibit in
the trial. The benefit of doubt will, therefore, have to be given
to the appellant and in support of which learned Senior
Counsel Shri Rai has relied upon Jitendra v. State of M.P.
[Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC
(Cri) 2028] and reiterated in Ashok v. State of M.P. [Ashok
v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri)
547] as follows: (SCC pp. 126-27, paras 12-13)
“12. Last but not the least, the alleged narcotic powder
seized from the possession of the accused, including the
appellant was never produced before the trial court as a
material exhibit and once again there is no explanation
for its non-production. There is, thus, no evidence to
connect the forensic report with the substance that was1
(2018) 2 SCC 305
pg. 5
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45seized from the possession of the appellant or the other
accused.
13. It may be noted here that in Jitendra v. State of M.P.
[Jitendra v. State of M.P., (2004) 10 SCC 562: 2004
SCC (Cri) 2028] , on similar facts this Court held that
the material placed on record by the prosecution did not
bring home the charge against the accused beyond
reasonable doubt and it would be unsafe to maintain
their conviction on that basis. In Jitendra [Jitendra v.
State of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri)
2028] , the Court observed and held as under: (SCC pp.
564-65, paras 5-6)
5. The evidence to prove that charas and ganja
were recovered from the possession of the
accused consisted of the evidence of the police
officers and the panch witnesses. The panch
witnesses turned hostile. Thus, we find that
apart from the testimony of Rajendra Pathak
(PW 7), Angad Singh (PW 8) and Sub-
Inspector D.J. Rai (PW 6), there is no
independent witness as to the recovery of the
drugs from the possession of the accused. The
charas and ganja alleged to have been seized
from the possession of the accused were not even
produced before the trial court, so as to connect
them with the samples sent to the forensic
science laboratory. There is no material
produced in the trial, apart from the interested
testimony of the police officers, to show that the
charas and ganja were seized from the possession
of the accused or that the samples sent to the
forensic science laboratory were taken from the
drugs seized from the possession of the accused.
…
6. … The best evidence would have been the
seized materials which ought to have been
pg. 6
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
produced during the trial and marked as
material objects. There is no explanation for this
failure to produce them. Mere oral evidence as to
their features and production of panchnama does
not discharge the heavy burden which lies on the
prosecution, particularly where the offence is
punishable with a stringent sentence as under
the NDPS Act. In this case, we notice that
panchas have turned hostile so the panchnama is
nothing but a document written by the police
officer concerned.’ ”
11. He further contends that P.W.1, a lady constable, conducted the
personal search of the Appellant. Section 42 of the NDPS Act puts a
complete embargo and mandates that such a personal search cannot
do carried out by a constable. So, there is complete infraction of most
of the mandatory provisions of the NDPS Act, which is evident from
the record, including violations of Sections 42, 50 and 52A of the
NDPS Act.
12. He further submits that since the investigation in the present case was
conducted by the police officer, who himself was the informant, the
weighing man, the I.O. and he was also the malkhana in-charge, in
whose custody, the contraband was there prior to sampling and after
sampling and even during whole trial. Hence, the trial was vitiated
and as such the Appellant is entitled to be acquitted. In support of
such contention, learned counsel placed reliance in the case of Mukesh
Singh v. State (Narcotic Branch of Delhi)2.
2
(2020) 10 SCC 120
pg. 7
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
13.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.
14. 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 to 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.
15. In such view of the matter, it was contended that the impugned
judgment of conviction and order of sentence should be set aside.
III. SUBMISSIONS OF THE RESPONDENT/ STATE:
16. In reply, learned counsel for the State submits that the impugned
judgment does not suffer from any illegality as the search and seizure
of contraband ganja being possessed and transported by the
Appellant along with other co-accused person is well established and
compliance of personal under Section 50 of the NDPS Act has been
properly made in the present case.
17. She further contends that the Appellant along with other co-accused
persons were found to be exclusive, conscious and unlawful
possession of three jari bastas containing 72 kilograms of contraband
pg. 8
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
ganja, without any valid license or authority and thus liable under
Section 20(b)(ii)(C) of the NDPS Act.
18. She further submits that the law is well settled that a person may lie
but documents do not. In lieu of above, she further submits that the
Chemical Examination Report (Ext.P-27) done by DECTL (SD),
Berhampur disclosed the seized article to be nothing else than
contraband narcotic substance (Ganja).
19. She further submits that once possession of the contraband is
established, presumption under Section 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 persons to explain their innocent
possession, and in the present case, the Appellant has failed to rebut
these statutory presumptions.
20. She placed reliance in the case of Surinder Kumar v. State of Punjab3.
The relevant paragraphs are reproduced below:
“15. The judgment in Jarnail Singh v. State of
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.
3
(2020) 2 SCC 563
pg. 9
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
18. Having regard to the oral and documentary evidence
placed on record, we are in agreement with the findings
recorded by the trial court and the High Court. From the
evidence on record in this case the prosecution has proved
the guilt of the appellant beyond reasonable doubt. The
conviction recorded and the sentence imposed is in
conformity with the provisions of law and evidence on
record, thus no interference is called for. Accordingly, this
appeal is devoid of merits, and the same is dismissed.”
21. She further placed reliance in the case of Kallu Khan v. State of
Rajasthan4. The relevant paragraph is reproduced below:
“10. It is urged that conviction based on the police witnesses
without having an independent witness is not always fatal.
In support of the said contention, reliance is placed on the
judgment of this Court in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC
563: (2020) 1 SCC (Cri) 767] to urge that merely because
the prosecution did not examine any independent witness
would not necessarily lead to conclusion that the accused
was falsely implicated. In the said judgment, law laid down
in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of
Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191] has
been re-affirmed. It is lastly urged that the concurrent
findings are not normally required to be interfered with
unless there is a perversity. Reliance is placed on the
judgments of this Court in State of U.P.v. Krishna Gopal
[State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988
SCC (Cri) 928] , Ganga Kumar Srivastava v. State of Bihar
[Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC
211 : 2005 SCC (Cri) 1424] , Jarnail Singh [Jarnail Singh v.
State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri)
1191] and Sk. Sakkar v. State of W.B. [Sk. Sakkar v. State
of W.B., (2021) 4 SCC 483 : (2021) 2 SCC (Cri) 488]”.
4
(2021) 19 SCC 197
pg. 10
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
22. She also placed reliance in the case of Baldev Singh v. State of
Haryana5, wherein it has been held as follows:
“10. There is no legal proposition that evidence of police
officials unless supported by independent evidence is
unworthy of acceptance. Evidence of police witnesses
cannot be discarded merely on the ground that they belong
to police force and interested in the investigation and their
desire to see the success of the case. Prudence however
requires that the evidence of police officials who are
interested in the outcome of the result of the case needs to be
carefully scrutinised and independently appreciated. Mere
fact that they are police officials does not by itself give rise
to any doubt about their creditworthiness.”
23. She further argues that the learned trial Court has discussed the
evidence on record and came to the right conclusion that the
contraband article was seized from the exclusive and conscious
possession of the Appellant and taking into account the ratio laid
down in the aforementioned cases, there is no merit in the present
appeal filed by the Appellant and the same should be dismissed in
limine.
IV. COURT’S REASONING AND ANALYSIS:
24. Having bestowed anxious consideration to the rival submissions and
having independently re-appreciated the entire evidence on record,
this Court is mindful that an appeal against conviction under Section
20(b)(ii)(C) of the NDPS Act cannot be decided on mere probabilities.
The statute, by design, reverses certain evidentiary burdens under
Sections 35 and 54, yet the foundational facts must first be proved by
5
(2015) 17 SCC 554
pg. 11
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
the prosecution beyond reasonable doubt. The presumption of
innocence, though statutorily attenuated, is not extinguished. It
merely co-exists with a calibrated evidentiary shift.
25.At the threshold, the prosecution was required to establish: (i) lawful
search and seizure in strict conformity with statutory safeguards; (ii)
conscious possession of the contraband by the Appellant; and (iii)
unimpeachable chain of custody linking the seized material to the
chemical examination report. Only upon satisfaction of these
foundational elements could the presumptions under Sections 35 and
54 legitimately operate.
26.In the present case, the prosecution narrative discloses that the seizure
was effected during patrolling duty at a public place. The distinction
between Sections 42 and 43 of the NDPS Act is jurisprudentially
significant. Section 42 contemplates prior information relating to
search of building, conveyance or enclosed place and mandates
reduction of such information into writing and its communication to
superior officers. Conversely, Section 43 governs search and seizure in
a public place. If the recovery was indeed from a public thoroughfare
(Chhak), during routine patrol without prior recorded information,
the rigour of Section 42 may not strictly apply. However, the
prosecution must demonstrate that the case squarely falls within
Section 43 and that no prior secret information triggered the search.
Any ambiguity on this aspect would assume materiality, for the
constitutional courts have consistently held that compliance with
pg. 12
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
mandatory safeguards under the NDPS Act is not an empty ritual but
a substantive guarantee against arbitrary intrusion.
27.The challenge regarding Section 50 requires careful scrutiny. The law
declared by the Constitution Bench in State of Punjab -vrs.- Baldev
Singh6 has settled that the right under Section 50 is a valuable
statutory right applicable to personal search. Subsequent decisions
have clarified that search of a vehicle or bag carried by an accused
does not, per se, attract Section 50 unless the search is inextricably
linked to the person. In the case at hand, the contraband was allegedly
recovered from jari bags kept inside the vehicle and not from the body
of the Appellant. Therefore, unless the prosecution case is that the
bags were in such immediate physical possession so as to constitute
personal search, strict non-compliance of Section 50 may not vitiate
the recovery process. Nevertheless, the prosecution must demonstrate
that the accused were clearly apprised of their right in meaningful
terms and that the consent obtained was voluntary, informed and not
a mechanical formality.
28.The more profound infirmity alleged by the defence concerns the
chain of custody. In prosecutions under the NDPS Act, the integrity of
the sample from seizure to forensic examination is the linchpin of
conviction. The Supreme Court has reiterated time and again that
non-production of seized material and absence of clear linkage
between the sample tested and the substance seized creates a fatal gap
in the prosecution case. Where independent witnesses have turned
6
(1999) 6 SCC 172
pg. 13
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
hostile and the seized material is not convincingly connected to the
forensic report through cogent evidence, the evidentiary chain stands
fractured and loses its efficacy.
29.In the present case, it is contended that the person who transported
the samples to the Forensic Laboratory was not examined; the F.S.L.
officer was also not examined; and the brass seal, though allegedly
handed over to an independent witness, was produced by the
Investigating Officer himself. These aspects cannot be brushed aside
as mere technicalities. The NDPS Act prescribes severe minimum
sentences; therefore, the evidentiary threshold must be
correspondingly exacting. The prosecution must eliminate every
reasonable possibility of tampering. Where the link evidence is
incomplete, the Court would be justified in entertaining doubt
regarding the sanctity of the samples examined.
30.Equally significant is the fact that one of the independent seizure
witnesses turned hostile and denied having taken custody of the brass
seal. While it is settled law that non-examination or hostility of
independent witnesses is not ipso facto fatal, the testimony of official
witnesses must then be scrutinized with greater circumspection. The
principle is not one of distrust of police testimony, but of heightened
judicial vigilance. The doctrine of prudential scrutiny, articulated in
Baldev Singh (supra), mandates that where conviction rests solely
upon official witnesses in a case involving stringent penal
consequences, the Court must be satisfied that their evidence inspires
confidence and is free from material inconsistencies.
pg. 14
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
31.The argument that the informant himself acted as seizing officer,
Investigating Officer and custodian of the malkhana also merits
consideration. The Constitution Bench in Mukesh Singh (supra) has
clarified that investigation by the informant is not per se illegal or
vitiating. However, such investigation must withstand the test of
fairness and absence of bias. Where procedural lapses coalesce with
concentration of roles in a single officer, the cumulative effect must be
examined. Criminal jurisprudence does not proceed on suspicion,
however strong; it demands proof beyond reasonable doubt.
32.On the issue of conscious possession, the prosecution must show that
the Appellant had knowledge of and control over the contraband.
Mere presence in a vehicle containing contraband is insufficient unless
accompanied by circumstances indicating dominion and awareness.
Conscious possession is a mental state inferred from attendant
circumstances. Once possession is proved, Sections 35 and 54 raise
rebuttable presumptions. However, if the basic fact of possession itself
is clouded by doubt arising from infirm search, doubtful seizure, or
broken chain of custody, the presumption cannot be invoked to cure
such defects.
33.The jurisprudential balance under the NDPS Act is delicate. While the
statute aims to curb the menace of narcotics with stern measures,
constitutional courts have repeatedly cautioned that procedural
safeguards are the only bulwark against misuse. The severity of
punishment amplifies the duty of the Court to ensure strict adherence
to statutory commands.
pg. 15
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
34.If, upon holistic evaluation, the Court finds that the chain of custody
remains intact, the seizure credible, the forensic report duly connected
to the seized material, and the Appellant’s conscious possession
established, then the statutory presumptions would operate and the
conviction would merit affirmation. Conversely, if material gaps
subsist particularly regarding safe custody, seal integrity, examination
of link witnesses, and credible establishment of conscious possession,
then the benefit of doubt must necessarily go to the Appellant. In
criminal jurisprudence, doubt is not a weakness of justice; it is its
constitutional strength.
35.Ultimately, the adjudicatory exercise must rest not on conjecture or
the gravity of the offence alleged, but on the unassailable proof of
compliance with law. The NDPS Act does not dilute the cardinal
principle that it is better that ten guilty persons escape than that one
innocent suffer. Where liberty is at stake for a decade under a
mandatory minimum sentence, the evidence must speak with
certainty not with ambiguity.
36.Upon a comprehensive re-appreciation of the evidence on record and
in the light of the settled jurisprudence governing prosecutions under
the NDPS Act, this Court is constrained to hold that the prosecution
has failed to establish the foundational facts beyond reasonable doubt
so as to sustain the conviction of the Appellant under Section
20(b)(ii)(C) of the Act.
37.The case at hand is not one resting merely on minor discrepancies or
peripheral contradictions. The infirmities pointed out by the defence
pg. 16
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
go to the root of the prosecution case more particularly with regard to
the integrity of the chain of custody, the safe preservation of the
seized contraband, the production and custody of the brass seal, and
the non-examination of vital link witnesses responsible for
transmission of samples to the forensic laboratory. In a prosecution
under the NDPS Act, where statutory presumptions under Sections 35
and 54 operate with full force, the prosecution must first discharge its
initial burden by proving possession and ensuring strict compliance
with procedural safeguards. Such burden cannot be diluted.
38.The evidentiary lacunae relating to the safe custody of the seized
material, the ambiguity surrounding the C-7 register, and the failure
to examine the carrier of the sample create a reasonable doubt as to
whether the sample tested by the forensic laboratory was indeed
drawn from the contraband allegedly seized from the Appellant. The
law is well settled that in offences attracting stringent minimum
punishment, the evidentiary threshold must be correspondingly
rigorous. The constitutional guarantee under Article 21 mandates that
deprivation of liberty must follow a procedure that is not only legal
but fair, just and reasonable.
39.While it is true that non-examination of independent witnesses or
hostility of panch witnesses is not ipso facto fatal, in the present case
the cumulative effect of the infirmities renders the prosecution version
unsafe for sustaining a conviction of such grave consequence.
Suspicion, however strong, cannot substitute proof. The statutory
pg. 17
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Feb-2026 14:40:45
presumptions cannot be invoked to cure foundational defects in the
prosecution case.
40.Accordingly, giving the benefit of doubt to the Appellant, the
impugned judgment of conviction and order of sentence dated
07.02.2023 passed by the learned Sessions Judge-cum-Special Judge,
Malkangiri in Special 2(a) C.C. No.30 of 2021 is hereby set aside. The
Appellant is acquitted of the charge under Section 20(b)(ii)(C) of the
NDPS Act. The Appellant be released forthwith, if not required in any
other case.
41.The Criminal Appeal is, accordingly, allowed.
( Dr. Sanjeeb K Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 13th February, 2026/
pg. 18
