Ajay Rajaram Bhor vs State Of Odisha

B.P. Routray, J

The sole appellant, namely Ajay Rajaram Bhor has prayed for his release on bail pending appeal, who has been convicted for commission of offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the NDPS Act’) and sentenced to undergo R.I. for 10 years with fine of Rs.1 lakh by the learned Sessions Judge-cum-Special Judge, Malkangiri in his judgment dated 25th April, 2024 passed in Spl.2(a)CC No.30 of 2023 for alleged possession of 100 Kg. of contraband ganja.

The appellant is inside custody since 29th April, 2023 and as submitted by Mr. Manohar, learned counsel on behalf of the Appellant that there are good grounds in the appeal to succeed and keeping in view the number of pending criminal appeals before Orissa High Court, it is not likely to dispose of the appeal soon and therefore the appellant may be enlarged on bail pending appeal.

On the other hand, Mr. Rout, learned Additional Public Prosecutor opposes the prayer for bail with submission that the appellant having been convicted by the trial court, prima facie case is made out against him removing the presumption of innocence, and keeping in view the rigor of Section 37 of the NDPS Act his prayer for bail is liable to be refused.

It is true that the twin conditions prescribed under Section 37 of the NDPS Act for grant of bail in respect of an accused that reasonable grounds are there in favour of his innocence and he is unlikely to commit any offence while on bail, are required to be satisfied in respect of prayer for bail pending appeal.

Hon’ble Supreme Court in the case of State (NCT of Delhi) Narcotics Control Bureau v. Lokesh Chadha, (2021) 5 SCC 724 have held as follows:-

“where the trial has ended up in an order of conviction, the High Court, when a suspension of sentence is sought U/S.389(1) of Cr.P.C., must be duly cognizant of the fact that a finding of guilt has been arrived at by the learned trial Judge at the conclusion of the trial and the High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of NDPS Act.”

The facts of the case in hand are that, on 29th April 2023 in the morning while P.W.3, the Sub-Inspector of Excise attached to Kalimela Excise Station, was performing patrolling duty along with

P.W.1 near MV-66 Chowk detected a Mahindra Pick-Up van coming on the road driven by present appellant and when stopped the same found smell of ganja coming from the vehicle. He then searched the vehicle and found four sacks containing ganja, one kept near the seat of the driver and three others were kept in the Dalla of the vehicle. He then called the independent witness (P.W.2), took samples from each sack containing ganja, seized the same, and produced the accused along with seized contraband, the vehicle and other papers before the court. Upon submission of the prosecution report on 25th August 2023, the accused faced trial. Prosecution examined 3 witnesses on its behalf and exhibited 15 documents along with 9 material objects. The defence did not adduce any evidence either orally or documentary.

The learned trial court upon adjudication found the prosecution has established the charge for commission of offence under Section 20(b)(ii)(c) of the NDPS Act and accordingly convicted the appellant with sentence of rigorous imprisonment for 10 years and fine of Rs.1 lakh.

According to the appellant there are material good grounds in his favour to succeed in the appeal, which are as follows:-

i) The mandatory compliance under Section 50 of the NDPS Act has not been done;

ii) Due provisions of search and seizure as per the mandate of the NDPS Act has not been followed and the prosecution case regarding search and seizure of the contraband from possession of the appellant is full of suspicion;

iii) The sole independent witness has not supported prosecution case;

iv) The provisions under Section 52-A has been violated; and

v) The investigating officer is the informant and custodian of the contraband, which was not produced before the trial court.

As seen from record, it is the prosecution case that when P.W.3 was performing patrolling duty stopped the vehicle driven by the accused upon suspicion. The place is a public road and the time is at 6 O’clock in the morning. Finding ganja in the vehicle he then called P.W.2, an independent witness, and as per prosecution the weighment, measure, search, seizure everything was done in presence of said independent witness. But this independent witness (P.W.2) did not support prosecution case. He has stated in his evidence that, he neither knows the accused nor about the case but one day while he was going to Kalimela the Excise Officer asked him to sign on some papers and accordingly he signed on those papers without knowing the contents thereof. He has further denied the fact of taking of the brass seal in zima as claimed by P.W.3. Here the weighing of the contraband and seizure of the same appears suspicious. The brass seal was not produced in court nor did the prosecution in its cross-examination asked to P.W.2 anything with regard to handing over and possession of the brass seal with him. The prosecution either in the evidence of P.W.3 or in the evidence of P.W.1 has said nothing regarding the process of weighing the contraband. It is important here because the prosecution case is to the effect that while performing the patrolling duty they detected the vehicle with contraband by chance. Since it is a public road, the contraband must have been emptied to a container and was required to have been mixed homogeneously for which a bigger space was required. To bring sanctity in the seizure, prosecution is expected to explain the detail facts. Absence of disclosure of detailed facts with regard to seizure of the contraband brings cloud of suspicion in prosecution case.

Admittedly, personal search of the accused has been taken in the present case and it is also admitted that the personal search has been taken in absence of any Executive Magistrate or Gazetted officer mandated under Section 50 of the Act. It is true that no contraband article could be found from personal possession of the accused. But when a suspect is searched personally in an offence relating to NDPS Act, it is required to be done as mandated under Section 50 of the NDPS Act regardless of the fact whether any contraband or suspected drug / substance is recovered from his personal possession.

In Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380, Hon’ble Supreme Court has stated as follows:-

“18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497].

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Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981] .)

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For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.”

It is true that P.W.3 being the custodian of the bulk quantity of seized ganja and the samples drawn there-from, has not said anything about keeping of the same in the Malkhana before it was sent for chemical examination. Neither any inventory has been prepared nor anything was explained about its safe custody in the Malkhana and most importantly who took the same to the RFSL, Berhampur has not been examined by prosecution. It is stated by the prosecution that the samples of the contraband were sent to RFSL, Berhampur in the hands of one Constable namely Sabita and there are discrepancies found as per Ext.P-10 with regard to date of handing over the samples to her. This is a serious lapse on the part of the prosecution in maintaining the sanctity of testing the samples.

In Bharat Aambale Vs- State of Chhattisgarh, 2025 SCC OnLine SC 110, Hon’ble Supreme Court has culled on the principles relating to section 52-A of the NDPS Act as follows;

“We summarize our final conclusion as under:—

(I) Although Section 52A 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 presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.

(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.

(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.

(IV) The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.

(V) Mere non-compliance of the procedure under Section 52A 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 the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.

(VII) 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.

(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A 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.

(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.

(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non¬compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.”

P.W.3 is the informant, the seizing officer, the weighman, the Malkhana in-charge and the investigating officer also. As held by the Hon’ble Supreme Court in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120, the question of bias or prejudice would depend upon the facts and circumstance of each case. In the given facts of this case, the conduct of prosecution as stated above including the fact of non-compliance of mandatory provisions under Section 50 of the Act casts a serious doubt over the prosecution including prejudice caused to the accused as submitted on his behalf.

Taking note of all such facts it can safely be prima facie opined that the appellant has good grounds in his favour to succeed in the appeal.

Admittedly, the appellant has no criminal antecedent of any nature and therefore no reason appears to apprehend that he would likely to be involved in any offence if released on bail.

Taking note of all such facts and reasons stated above this court is inclined to release the Appellant on bail pending appeal.

Accordingly, it is directed to release the Appellant on bail, pending appeal on such terms and conditions to be fixed by the learned Sessions Judge-cum-Special Judge, Malkangiri in Spl. 2(a)CC No.30 of 2023 including the condition that the Appellant shall furnish bail bond of Rs.50,000/- (fifty thousand) with two solvent sureties (with proper identity proof) out of which one shall be his relative.

It made clear that all such observations made in this judgment are relating to and for the purpose of consideration of the prayer of the appellant in the present I.A. The I.A. is disposed of.