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Judgment
S.S. Mishra, J. The appellant is aggrieved by the judgment dated 22.11.2007 passed by the 1st Addl. Sessions Judge, Cuttack in G.R. Case No. 249 of 2005, whereby he has been convicted for commission of offence under section 21(b) of the NDPS Act and has been sentenced to undergo R.I. for six years and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default to undergo R.I. for one year.
This appeal has been pending since 2009. When the appeal was taken up for hearing, continuously none appeared for the appellant. Therefore, on 28.07.2026 this Court appointed Mr. S.N. Mishra-4 who is present in Court to assist the Court as Amicus Curiae on behalf of the appellant. He obtained the soft copy of the trial court record and rendered effective assistance, for which this Court records appreciation.
The prosecution case, in terse and brief, is that on 17.03.2005 at 9.30 A.M. Jayanta Kumar Mohapatra, the then O.I.C. of Sadar P.S., Cuttack having received information from a reliable source that the accused wearing a sky colour full pant and full shirt, alighted from a bus at Balikuda and was proceeding towards Kaji Patna holding a plastic bag containing brown sugar in his hand, made an entry to that effect in the Station Diary Book and informed about it to the Circle Inspector of Sadar Police Station, Cuttack and Superintendent of Police, Cuttack over telephone. He sent the information in writing to Superintendent of Police, Cuttack. Thereafter, he along with Gajendra Behera, Sub-inspector of Police, and other police staff went to Balikuda in a Police Jeep. They procured two witnesses, namely, Anil Kumark Beuraki and Braja Kishore Mohanty from there and proceeded towards Kajipatna. On the way, they detected the accused in front of Hanuman temple of Balikuda Nua Bazar, while he was standing with a plastic bag. Accused was informed that he was suspected of carrying brown sugar and Sub-Inspector Mohapatra informed S.P., Cuttack over V.H.F. to depute a Gazetted Officer after the accused opted to be searched in presence of a Gazetted Officer in writing. At about 11.20 A.M., Chakradhar Mohapatra, D.S.P., Crime Branch, Cuttack being deputed by S.P., Cuttack arrived at the spot. The Police officers and the independent witnesses gave their personal search and thereafter S.I. Mohapatra took the personal search of the accused, but nothing was recovered except the said plastic bag from his possession. On opening of the plastic bag, a polythene packet containing brown sugar was found and the same on weighment came to be 200 grams. Hence, this case.
On the basis of the aforementioned allegations, police registered the case and investigation was conducted. Charge sheet was filed against the appellant and on his stance of complete denial and claim for trial, he was put to trial after the charges were framed.
To establish the charges, the prosecution examined seven witnesses and exhibited as many as seventeen documents.
After thorough analysis of the evidence on record, the learned trial court in paragraphs-14 and 15 of the impugned judgment held as under:-
“14.It is brought out from the cross-examination of P.Ws.4 and 6 that the accused had held the plastic bag, in his right hand, whereas P.W.2 has stated that the accused had held the bag in his left hand. In this connection, the learned counsel for the accused has relied upon the decision reported in 2001, Vol.21, OCR, page-104 (Jiban -vrs.- State of Orissa), wherein the accused; had been given benefit of doubt, as one of the, official witnesses (P.W.4), stated that ganja: was recovered from the kitchen room, whereas the other, official witness (P.W.6) stated that ganja was recovered from the bed room of the accused. In that case, other circumstances were also taken into consideration to give the benefit of doubt, to the accused. Facts of the said decision cannot be made applicable to the facts of the case in hand; in as much as, such recovery was not made from the house of the accused, but from his possession, while he was standing on the road in front of Hanuman temple. The other decision reported in 2001 Vol.20 OCR SC page 323 (Bholaram -Vrs:-State of Madhya Pradesh) is relied on, wherein the appeal was allowed by setting aside the conviction and sentence passed by the trial Court, in as much as, the three, constables, who accompanied P.W.4 were not examined and the sole testimony of official witness, P.W.4, who adduced evidence that he got information about the appellant to have kept brown sugar in the packet of his trouser and recorded that information in Sanha, Ext.P/13, did not find support from Ext.P/13, as no such information was recorded therein. In the case on hand, all the three official witnesses, namely, P.Ws.2, 4 and 6 have consistently stated about the recovery of the plastic bag containing Brown sugar from the possession of the accused and as noticed earlier, their testimony has found support from the documentary evidence. Thus, the said decision cannot also be made applicable to the facts of the present case. No doubt, P.W.4 while giving information to S.P., Cuttack vide Ext.6 dated 17.03.2005 had requested S.P., Cuttack to depute one D.S.P. to carry out the search and seizure in his presence, but the same would not be a ground to throw away the case of the prosecution on the ground that P.W.4 could not have pre-supposed that the accused would give option to take his search in presence of a police gazetted officer, as facts remain that Section 50 of the Act was not to be complied with, as he had got clear information that the accused was carrying brown sugar in a plastic bag. Therefore, there is no doubt that the plastic bag containing 200 grams of brown sugar was recovered from the possession of the accused on 17.03.2005 under the Seizure List, Ext.2 and that apart, both the P.Ws.2 and 7 have also identified the plastic bag, M.O.I (A) and sealed packet containing residue brown sugar, M.O.II (A-1), sealed sample packet, M.O.III (A-2) and the other sealed sample packet, M.O.IV (A-3) bearing their signatures and the signature of the accused on it.
15.As noticed earlier, P.W.7 received all the seized articles from P.W.4 on the spot and it is in the evidence of P.W.7 that he handed over all the seized articles to PW.4 in the Police Station so as to keep it in safe custody in Police Malkhana. The Malkhana Register, which was seized by the I.O..(P.W.7) under the Seizure List, Ext.12 was produced and marked as Ext. 17. The I.O. (P.W.7, who is acquainted with the hand-writing and signature of P.W.4, has proved the relevant entry, Ext.17/1 stating that the entry was made by P.W.4 and it goes to show that the sealed articles containing residue brown sugar and the sample packets containing sample brown sugar, were kept in Police Malkhana on 17.03.2005. Thus, the testimony of the I.O. has found corroboration from the relevant entry, Ext. 17/1 made in the Malkhana Register, Ext.17. As noticed earlier, all the articles were sent to S.F.S.L., Rasulgarh for chemical examination after the same were, produced in the Court on 18.03.2005 and an endorsement to that effect has also been made as against the entry, Ext. 17/1. The defence got the forwarding report of the accused marked Ext.A through the I.O. (P.W.7) and Ext.A does not show the I.O.. to have produced the sealed articles on 17.03.2005. I have already held that the same articles, which were sent by the Court, were received in the office of State F.S.L., Rasulgarhj and there was no shortage of brown sugar in it. That apart, both P.Ws.2 and 7 have clearly identified the plastic bag, M.O.I'(A), the sealed packet containing residue brown sugar, M.O.II (A-1) and sealed sample packet, M.O.III (A-2) and the other sealed sample packet, M.O.IV (A-3) in the Court and, therefore, the said articles cannot be said to have been tampered with before its production in the Court on 18.03.2005 merely because the I.O. (P.W.7) did not produce it on 17.03.2005, when the accused was produced in the Court. Thus, there is no doubt that the same contraband article, which was recovered from the possession of the accused, was sent for Chemical Examination to S.F.S.L., Rasuigarh and, therefore, it can safely be inferred that brown sugar weighing 200 grams was recovered from the conscious possession of the accused and he had no authority to possess it.”
Mr. Mishra, learned Amicus Curiae appearing for the appellant has filed two written notes of submission one on 04.08.2026 and another on 13.08.2026 along with relied judgments. Drawing the attention of this Court to the evidence of the prosecution, Mr. Mishra, has pointed out series of discrepancies and submitted that the prosecution case is completely riddled with contradictions. He further submitted that in the present case demonstratively the procedural safeguard contemplated under Section 52 of NDPS Act has not been complied with. To begin with, he has first argued regarding the non-compliance and inadequate compliance of Section 50 of the NDPS Act. P.W.2, who was the DSP-cum-Gazetted Officer, in his deposition has stated as under:
“On 17.03.2005 I was also working in the present capacity. On that day at about 9.30 a.m. S.P. Cuttack directed me over phone to proceed to Balikuda side where the police staff of sadar P.S. detained a person suspecting him carrying contraband articles. I arrived at the spot, i.e., a road running in front of Hanuman temple Balikuda at 11.20 a.m. and found the accused Dusasan @ Dusas Rout being detained in circled by OIC Sadar P.S. Jayant Mohapatra, and other police personnel and I also found two outsiders namely Anil Kr. Behera and Braja Mohan Mohanty present along with the police personnel. I enquired Dusasan Rout, if he was willing to be searched in presence in capacity of a gazetted officer after disclosing my identity. Prior to that OIC Sri Mohapatra offered option to the accused in writing. Then Sri Mohapatra and I gave our personal search to the accused. So also other staff and witnesses. The accused was searched and he was holding a plastic (blue strip bag). On search of the bag a polythene packet containing suspected brown sugar was found.”
Similarly, the other prosecution witnesses have also deposed that option was given to the accused to be searched by a Magistrate or Gazetted Officer, who is a police officer. The written notice, which was given by P.W.4 Jayanta Kumar Mohapatra, S.I. to the accused in purported compliance of Section 50 has been exhibited as Ext.3. From the said exhibit, it could be seen the accused was put to notice stating that he has an option of giving his search to the Magistrate or a higher police officer. Although in the said exhibit the accused has signed but it is found that two independent witnesses have not signed in the said notice. For ready reference, the translated version is reproduced below:-
“It is hereby put to you (Dusasan @ Kusasana Rout, S/o Kulamani Rout, vill- Kuruala, P.S. Tangi, Cuttack) notice that from the reliable source it came to the notice that you are in possession of brown sugar therefore, your personal search is required. You can give your search before a magistrate or a high police officer. It is informed to you by writing.
Sd/ Jayanta Kumar Patra IIC, Sadar P.S.
I Dusasan @ Kusasana Rout, S/o Kulamani Rout, vill-Kuruala, P.S. Tangi, Cuttack. My search may be made in presence of high police officer:
Sd/ Kusasana Rout”
From the aforementioned evidence it is abundantly clear that the informant P.W.4 admitted in his deposition that the accused was apprehended on 17.03.2005 while standing in front of Hanuman temple at Balikuda holding a plastic bag. Thereafter he gave option to the accused for personal search either before the Magistrate or before the higher police officer. According to Section 50 of the NDPS Act the accused has to be apprised of his legal right to be searched either before the Magistrate or a gazetted officer. There is no third option to be searched before the police officer. Thus the consent obtained from the accused was not in conformity with Section 50 of the Act. Hence, the entire investigation is vitiated on this count alone. Mr. Mishra, learned Amicus Curiae has relied upon the judgment of Hon’ble Supreme Court in the case of State of Himachal Pradesh vrs. Surat Singh, reported in (2026) 102 OCR (SC) 549. Para-11 of the judgment in Surat Singh (supra) has been relied upon, which reads as under:-
“The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refused/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e. the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh's case. Further a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh's case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but "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. In Vijaysinh Chandubha Jadeja's case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law."
It is further contended by Mr. Mishra that sub-clause (5) of Section 50 in the present case has also been violated by the investigating agency. Section 50, sub-clause (5) read with Section 100(4) Cr.P.C. requires the presence of at least two independent witnesses during search and seizure. P.W.4 in his deposition has stated that he arranged two independent witnesses to witness the search and seizure, however both the independent witnesses have not supported the prosecution case. P.W.1 in his deposition stated that on 17.03.2005 at 10 to 11 A.M. while he was passing through the Balikuda-Kajipatna road, he found P.W.4 Jayanta Mohapatra standing there. When he exchanged his pleasantry to him, he called and took him to the police station saying that brown sugar was recovered from a person. In the police station he took his signature in Ext.2. Similarly, P.W.5 another independent witness has very bluntly denied of having any knowledge regarding any kind of seizure. Moreover, the signatures of these two witnesses are also missing in Ext.3, the written notice given to the accused before the search was conducted. Mr. Mishra, has relied upon the judgment of the Court in the matter of Jagannath Panigrahi vrs. State of Orissa, reported in (2026) 103 OCR 18 and submitted that this Court very emphatically held that conjoint reading of sub section 5 of Section 50 of NDPS Act and sub-section 4 of Section 100 Cr.P.C. manifestly envisaged the presence of at least two witnesses and respectable witnesses during search and seizure. Non-association of minimum two witnesses or failure of prosecution to examine the witnesses or non-support of these witnesses to the prosecution version creates a serious doubt regarding the seizure itself. Similarly, Mr. Mishra has also relied upon the judgment of this Court in the matter of Ranjit Kumar Singh vrs. State of Orissa, reported in (2026) 103 OCR 233 to bring home his point regarding the non-compliance of Section 50 of the NDPS Act.
The learned State Counsel on the contrary could not dispute regarding the position of law, rather there is no answer for the State Counsel regarding the non-compliance of the statutory requirement of giving written option to the accused apprising him his right to be searched by a gazetted officer or a Magistrate. Giving third option to be examined by the police officer, who accompanied the raiding party, is in fact in derogation to the requirement of Section 50 of the NDPS Act.
In view of the aforementioned, this Court need not further go into the other materials available on record. Thereby, solely on the ground on non-compliance of Section 50 of NDPS Act, the appeal is liable to be allowed, as demonstratively the procedural safeguards provided under Section 50 of the NDPS Act has not been complied in the present case. Hence, the entire trial vitiates.
Accordingly, the Criminal Appeal is allowed.
This Court acknowledges the effective and meaningful assistance rendered by Mr. S.N. Mishra-4, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation.