Orissa High Court
Dillip Kumar Sethi vs State Of Orissa on 26 February, 2026
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.117 of 2005
(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)
Dillip Kumar Sethi ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. Ashreet Behera, Advocate
For the Respondent : Mr. Sobhan Panigrahi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 19.02.2026 :: Date of Judgment: 26.02.2026
S.S. Mishra, J. The present Criminal Appeal, filed by the appellant
is directed against the judgment and order dated 28.02.2005 passed by
the learned Sessions Judge-cum-Special Judge, Cuttack in G.R. Case
No.1226 of 2003/(15T./2003), whereby the appellant has been
convicted for the offence under Section 21(b) of the N.D.P.S. Act and
on that count, he is sentenced to undergo R.I. for three years and to
pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo
further R.I. for six months.
2. Heard Mr. Ashreet Behera, learned counsel appearing for the
appellant and Mr. Sobhan Panigrahi, learned Additional Standing
Counsel for the State.
3. Prosecution story bereft of unnecessary details is that, on
18.08.2003, on receipt of reliable information that the accused was in
possession of brown sugar for sale at Chunavati Lane, the Inspector-
in-Charge of Chauliaganj Police Station (P.W.13) made a station
diary entry (Ext.27) and deputed a raiding party comprising S.I.
Surendranath Routray (P.W.9) as leader, S.I. S.S. Tripathy (P.W.1),
Constable P.K. Lenka (P.W.4) and others to conduct a raid. Two
independent witnesses (P.Ws.6 and 7) were also taken to the spot near
Mangala Engineering Workshop, where the accused was found sitting
and was apprehended while attempting to flee. The accused disclosed
his identity as Dillip Sethi. P.W.9 served a written notice (Ext.3)
informing him of his right to be searched in the presence of a
Gazetted Officer or an Executive Magistrate. The accused opted in
writing (Ext.3/2) to be searched before a Gazetted Officer.
Accordingly, Sri J.K. Patra (P.W.8), City D.S.P., arrived at the spot,
disclosed his identity and, upon the accused reiterating his
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willingness, supervised the search. Prior to the search, the members of
the raiding party and the independent witnesses offered their personal
search to the accused.
On personal search, one polythene packet containing brown
sugar was recovered from the right pocket of the accused’s trouser,
along with paper pieces and a matchbox from the other pocket. The
Scientific Officer (P.W.3) was requisitioned, who weighed the
contraband. The net weight of the brown sugar was found to be 5
grams and 200 milligrams. Two samples of one gram each were
drawn, marked as ‘A/1’ and ‘A/2’, and the remaining contraband was
marked as ‘A’. All packets were sealed with the personal seal of
P.W.9, signatures of the accused, Gazetted Officer, Scientific Officer
and witnesses were obtained, and the articles were seized under
seizure list (Ext.5). The specimen seal was also taken, and the seal
was entrusted to an independent witness under zimanama (Ext.7). The
accused was thereafter arrested. P.W.9 returned to the Police Station,
submitted a written report (Ext.14), and on its basis a case was
registered. The seized articles were resealed by P.W.13 and handed
over for investigation to P.W.12, who made necessary entries in the
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Malkhana register, examined witnesses, seized relevant documents,
prepared the spot map through the Amin (Ext.1), and sent the samples
to the State Forensic Science Laboratory for chemical examination on
the orders of the learned S.D.J.M.
The chemical examination report (Ext.23) confirmed that the
seized substance was brown sugar. Upon completion of investigation
and compliance of statutory formalities, charge-sheet was submitted
against the accused under Section 21(b) of the Act for unlawful
possession of brown sugar for sale.
4. The prosecution has examined thirteen witnesses in support of
its case. P.Ws.1, 4, 9 and 10 were police personnel, who were
members of the raiding party. P.W.2 was the Amin, who prepared the
spot map. P.W.3 was the Scientific Officer, who weighed the seized
brown sugar. P.W.5 was a Police Officer, who claimed to have
witnessed the seizure of the pant of the accused at the Police Station.
P.Ws.6 and 7 were cited as independent witnesses, who were taken
along by the police party prior to the search and seizure; however,
they did not support the prosecution case. P.W.8 was the City Deputy
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Superintendent of Police, Special Branch, Cuttack, who acted as the
Gazetted Officer during the search. P.W.11 was a Police Constable in
whose presence certain seizures were effected at the Police Station.
P.W.12 was the Investigating Officer, who conducted the
investigation. P.W.13 was the Inspector-in-Charge of Chauliaganj
Police Station, who received the reliable information, directed P.W.9
to conduct the search and seizure, and subsequently entrusted the
investigation to P.W.12.
5. The plea of the defence is one of complete denial and false
implication. The accused has taken the specific stand that he was
called from Nuabazar to the Police Station and was compelled to sign
on certain blank papers. He has categorically denied having been in
possession of any brown sugar. On such plea of denial and claim of
innocence, he was put to trial.
6. The learned trial Court, placing substantial reliance on the
testimony of the witnesses, other exhibits placed on record and after
categorically analyzing all the questions put by the defence, arrived at
a conclusion that:
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“16. Attempt has been made on behalf of the defence to disbelieve
the prosecution case that different pictures have been given by the
witnesses regarding colour of brown sugar stated to have been
seized. In my opinion, those statements cannot be taken into
consideration in this case when prosecution has been able to prove
that the sample which was sent to SFSL confirmed that it was
brown sugar and the said sample was drawn from the material
which was seized from the possession of the accused. As I have
already stated that the finding of the SFSL has not been challenged
by the defence, hence it cannot be said that the article which stated
to have been seized from the possession of accused was not brown
but any other material.
17. As per my above findings, I am of the opinion that the
prosecution has been able to prove its case beyond all reasonable
doubts against the accused that the accused was found in unlawful
possession of brown sugar weighing 5 grams and 200 miligrams.
Hence, I found the accused guilty of the charge under section 21(b)
of the Act and I convict him thereunder.”
7. Aggrieved by the Judgement of conviction and order of
sentence, the present appeal has been filed by the sole appellant.
8. Mr. Behera, learned counsel appearing for the appellant,
primarily assails the conviction on the ground of non-compliance with
the procedural safeguards enshrined under Section 50 of the N.D.P.S.
Act.
It is contended that Ext.3, by which the accused was allegedly
informed of his right to be searched in the presence of a Gazetted
Officer or Executive Magistrate, and Ext.6, said to be the written
consent of the accused, are doubtful on the face of the record. Learned
Page 6 of 13
counsel submitted that both documents appear to have been written by
the same person in Odia, whereas the accused has merely appended
his signature in English. According to him, if the accused could sign
in English, it reasonably follows that he was educated enough to write
his own consent. In this circumstance, it raises serious doubt about the
genuineness of the documents and leaves open the possibility that the
consent may have been obtained under compulsion. In this regard,
reliance is placed upon the judgment of this Court in Kashinath Sahu
v. State of Orissa1, wherein, on similar facts involving doubt as to the
authorship of the consent letter, the appeal was allowed on account of
such inconsistencies. It is further argued that from paragraph 19 of the
evidence of PW 12, it transpires that the written options (Exts.3 and
6) were scribed by S.I. Routray, a member of the raiding party. The
relevant portion reads:
“…..I am acquainted with the handwriting and signature
of SI Routray and City DSP Mr. Patra. The written
option of Ext.3 and 6 given to the accused have been
scribed by Mr. Routray………”
1
(2003) 24 OCR 781
Page 7 of 13
Based on the above, learned counsel contended that when the accused
could write his own consent, the fact that the same was written by a
police officer renders the prosecution version doubtful and gives rise
to the possibility of coercion. Learned counsel further submitted that
Exts.3 and 6, which form the very foundation of compliance under
Section 50 of the Act, were not produced at the time when the
accused was initially forwarded to the Court. This omission,
according to him, casts a serious cloud over their authenticity and the
doubt that such may have been manufactured later cannot be ruled
out. Attention is drawn to relevant part of paragraph 12 of the
impugned judgment, wherein the learned Trial Court observed as
follows:
“………………..Mr. Panda has submitted that the
independent witnesses have not supported the
prosecution version that the accused was informed of his
right and the written option asked by the Inspector and
the consent of the accused (Ext.3) and the opportunity
given by the Deputy Superintendent of Police in writing
to get the consent of the accused (Ext.6) have been
subsequently manufactured as those were not produced
at the time of production of the accused and subsequently
those were sent to Court and that would suggest that
existence of Exts.3 and 6 were not there at the time of
forwarding of the accused to Court and those have been
subsequently created for the purpose of this casePage 8 of 13
particularly when no reasonable explanation has not
come from the prosecution side for its non-production at
the time of production of accused in Court. There is some
force in the contention of Mr. Panda. Admittedly Exts.3
and 6 were not produced in Court when the accused was
produced. In my opinion, the above omission is not fatal
to the prosecution…….”
In view of these alleged inconsistencies and omissions, it is submitted
that the mandatory procedural safeguards under Section 50 of the
N.D.P.S. Act have not been strictly complied with. Such lapses,
according to the learned counsel, create a substantial doubt in the
prosecution case, and the benefit of such doubt must enure to the
accused. It is, therefore, prayed that the appeal be allowed and the
appellant be acquitted of the charge.
9. Per contra, the learned Additional Standing Counsel for the
State submitted that all mandatory procedural safeguards, including
those under Section 50 of the N.D.P.S. Act, have been strictly
complied with. It was contended that the learned trial court, upon due
appreciation of the oral and documentary evidence on record, has
rightly held the accused guilty of the offence charged. According to
the State, there has been no violation of the statutory requirements
under Section 50 of the N.D.P.S. Act, and the findings recorded by
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the learned trial court are well-reasoned and based on evidence. It is,
therefore, submitted that the conviction and sentence warrant no
interference by this Court.
10. Having thoughtful consideration to the rival submissions
advanced at the Bar and upon a meticulous re-appraisal of the entire
evidence on record, this Court proceeds to examine whether the
prosecution has been able to establish strict and unimpeachable
compliance of the mandatory requirement embodied under Section 50
of the N.D.P.S. Act.
At the outset, it must be borne in mind that the safeguards
provided under Section 50 are not empty formalities or mere farce but
a valuable and substantive right upon the accused, namely, the right to
be informed that he may opt to be searched in the presence of a
Gazetted Officer or an Executive Magistrate. The object behind
incorporating such a safeguard is to ensure transparency in the search
process and to eliminate the possibility of false implication. The
Hon’ble Supreme Court has repeatedly held that the requirements of
Section 50 are mandatory in nature and must be strictly complied
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with. It is trite in law the graver the offence, stricter should be the
compliance of procedural safeguard.
11. In this case it is evident that Exts.3 and 6 constitute the very
foundation of the prosecution case regarding compliance of the
mandatory requirement of informing the accused of his right to be
searched in the presence of a Gazetted Officer or an Executive
Magistrate. However, certain circumstances cast serious doubt on
their genuineness. Admittedly, these documents were not produced at
the time when the accused was first forwarded to the Court. No
satisfactory explanation has been offered by the prosecution for such
non-production at the earliest point of time.
Further, the evidence of PW 12 reveals that both Exts.3 and 6
were scribed by a member of the raiding party one Mr. Routray.
When the accused could sign in English, and there is nothing on
record to show that he was incapable of writing his own statement,
the fact that the consent letter was written by a police officer assumes
significance. Surprisingly, Ext.6 supposed to have been written by the
Magistrate has also been written by the Police Officer, who has also
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written Ext.3, however, the Magistrate has simply appended his
signature at the bottom. Even the signatures of the accused in both the
exhibits appear to the naked eyes to be different, hence, suspicious
doubt about manipulation or afterthought creation of such documents
cannot be ruled out. In cases arising under the N.D.P.S. Act, where
strict compliance of statutory safeguards is imperative, even minor
deviations may assume importance if they create doubt about
adherence to mandatory provisions.
12. The law is well settled that compliance with Section 50 of the
N.D.P.S. Act is mandatory and failure to strictly adhere to the same
renders the recovery suspect and vitiates the conviction. The Hon’ble
Supreme Court as well as this Court, in a catena of decisions,
including Vijaysinh Chandubha Jadeja v. State of Gujarat2 and
Ashok Kumar Sharma vs State Of Rajasthan3 have consistently held
that non-compliance or doubtful compliance of the procedural
safeguards under Section 50 proves fatal to the prosecution case.
2
2011 (1) SCC 609
3
2013 (2) SCC 67
Page 12 of 13
13. In the case at hand, the cumulative effect of the non-production
of Exts.3 and 6 at the time of initial production of the accused, the
way those documents were scribed, and the lack of convincing
explanation from the prosecution, create a reasonable doubt as to
whether the mandatory safeguards were in fact observed in their true
letter and spirit. Such doubt must necessarily enure to the benefit of
the accused. Accordingly, this Court holds that the prosecution has
failed to establish strict and unimpeachable compliance of Section 50
of the N.D.P.S. Act. The conviction, therefore, cannot be sustained.
14. Hence, the judgment and order dated 28.02.2005 passed by the
learned Sessions Judge-cum-Special Judge, Cuttack in G.R. Case
No.1226 of 2003 (15 T./2003) are hereby set aside. The appellant is
acquitted of the charge and be set at liberty forthwith, if his detention
is not required in any other case. Bail bonds furnished by the
appellant stand discharged.
15. Accordingly, the CRLA is allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated 26th of February, 2026/ Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 26-Feb-2026 17:32:27 Page 13 of 13
