THE HIGH COURT OF ORISSA AT CUTTACK CRA No.205 of 1995 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Bijaya Kumar Sahu & another ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellants : Mr. Debi Prasad Pattnaik, Advocate For the Respondent : Mrs. Sarita Moharana, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.02.2026 :: Date of Judgment: 12.02.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment dated 13.06.1995 passed by the learned Sessions Judge, Balangir in Sessions Case No. 8 of 1995, whereby the appellant and the co-accused were found guilty for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “NDPS Act”) and were sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs.25,000/- each, in default, to undergo further rigorous imprisonment for one year each. 2. During the pendency of the appeal, appellant No.2 (Bidyadhar Sahu) is stated to have expired and accordingly, the appeal survives only in respect of appellant No.1, namely Bijaya Kumar Sahu. In so far as the deceased appellant No.2 is concerned, the appeal stands abated in the absence of application under Section 394 of Cr.P.C. by his L.R. or next friend. The written instruction is already on record. 3. Heard Mr. Debi Prasad Pattnaik, learned counsel, for the appellants and Mrs. Sarita Moharana, learned Additional Standing Counsel for the State. 4. The prosecution case in brief is that on 14.10.1994, P.W.1, a Constable attached to G.R.P.S., Titilagarh, while performing train guard duty in Hirakhand Down Express along with P.W.2 and other staff, entered the 1st Class compartment of the train at Kesinga Railway Station and found the appellant and the co-accused sitting alone inside the compartment along with three attaché cases and two air-bags. On being questioned, both the accused persons claimed ownership over the said containers. P.W.1 noticed smell of ganja emanating from the said containers and on further questioning, the accused persons admitted that the containers contained ganja. When the train reached Titilagarh Railway Station, P.W.1 with the help of his colleagues, brought the accused persons along with the said luggage to G.R.P.S., Titilagarh and submitted a written report before P.W.6, the Officer-in-Charge, who is an empowered officer under the NDPS Act. Thereafter, P.W.6 called local witnesses, opened the containers in the presence of witnesses and the accused persons, found ganja inside the containers, got the same weighed through P.W.4 and found the total weight to be about 31 kilograms. P.W.6 seized the contraband and the containers under seizure list Ext.2, collected samples from each container, sealed the same in presence of witnesses and the accused persons, arrested the accused persons and forwarded them along with the seized articles to the Court. The samples were subsequently sent to R.F.S.L., Sambalpur and the chemical examiner’s report confirmed the samples to be ganja. Upon completion of the investigation, charge-sheet was submitted. 5. The plea of the defence was one of complete denial. The stand taken was that the accused persons had gone to the railway station to receive their relatives and were falsely implicated by the G.R.P. staff on account of refusal to pay the alleged subscription for Dussehra festivities. The prosecution examined 6 P.Ws. In support of their defence, the accused persons examined themselves as D.Ws. 6. The learned trial Court, upon meticulous appreciation of the oral and documentary evidence adduced by the prosecution, came to the conclusion that the prosecution had successfully established the charge under Section 20(b)(i) of the NDPS Act against the accused persons beyond all reasonable doubt. The trial Court relied primarily upon the consistent and cogent testimonies of the official witnesses, particularly the evidence of the constables who first intercepted the accused in the train compartment and the evidence of the Officer-in-Charge of G.R.P.S., Titilagarh, who conducted the seizure, sampling and subsequent procedural formalities. The Court observed that the seizure of ganja from the conscious possession of the accused persons stood duly proved through the seizure list, sample seal, and chemical examination report confirming the contraband to be ganja. It was further held that there was substantial compliance with the procedural safeguards under the NDPS Act and that minor discrepancies or non-support of independent witnesses did not affect the core prosecution case, particularly when the official witnesses were found trustworthy. On such analysis, the learned trial Court recorded the finding of guilt and sentenced the accused persons to undergo rigorous imprisonment and pay fine as prescribed under law. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “11. Undisputedly P.W.6 is the O.I.C. of G.R.P.S., Titilagarh who had made the seizure. It is categorically stated by him in his evidence that after he seized the articles he collected the sample from each container and sealed the sample in presence of the accused persons and the witnesses. On the following day he forwarded the accused persons to court along with the seized articles. On 15.11.94 he sent the sample to the R.F.S.L., Sambalpur for chemical examination through the S.D.J.M., Titilagarh under his forwarding letter marked Ext.3. It is stated by him that as he has no seal of his own he used the seal of the R.P.F. in sealing the sample. According to him he had kept the seized articles in his custody in the G.RP.S. from the date of seizure till he sent the articles i.e. on the following day to the court. He had kept those articles in the Malkhana of the G.R.P.S. under his personal supervision and due care. The only contention of the learned advocate for the accused is that as per the evidence of P.W.6, at present M.O.I the attache has been partly broken but at the time of seizure it was not broken. Therefore, the I.O. is negligent in keeping those articles safely in his custody. But undisputedly on the next day of the seizure the I.O. had sent the attaches and the air-bags containing ganja to the court Malkhana. It might be possible that the damage was not when the articles with the I.O. but might be in the court Malkhana or during the transit. Therefore, the negligence of the I.O. in keeping the articles in his custody can neither be inferred nor such negligence if any suggests the violation of section-55 of the Act entailing the acquittal of the accused. 12. In the result both the accused persons are guilty u/s. 20(b)(i) of the N.D.P.S. Act, 1985 and they are convicted thereunder. The accused persons not being below the age of 18 years, the question of releasing them under the provision of the P.O. Act does not arise.” 7. Mr. Pattnaik, learned counsel appearing for the appellants, assailed the impugned judgment primarily on the ground that the learned trial Court placed undue and excessive reliance upon the evidence of official witnesses while completely overlooking the evidentiary value of the independent witnesses. It was contended that the trial Court erroneously observed that P.Ws.3, 4 and 5 had turned hostile, whereas, in fact, none of them were declared hostile during the trial. He submitted that the defence evidence, particularly the testimony of appellant No.1 as D.W.1 and the platform ticket proved through Exhibit-A, was not discussed by the trial Court even from the standpoint of probability. Learned counsel argued that P.W.4, who allegedly weighed the contraband, failed to identify the material objects (M.O. I to V) and categorically stated that he could not say why the articles were weighed and that the prosecution had not even established through him that the substance weighed was ganja. Similarly, it was urged that P.W.3’s testimony materially contradicted the prosecution case inasmuch as he stated that he had seen appellant No.2 near the overbridge at about 7.00 A.M. and police personnel near certain articles at GRPS, which contradicted the prosecution case that the train reached Titilagarh Station at about 8.00 A.M. This, according to the appellant, probabilised the defence version that appellant No.1 had merely come to the platform to receive a friend and was forcibly taken to GRPS. 8. He further submitted that P.W.5 also did not support the prosecution on the actual seizure and sampling process and admitted that he had not seen the seizure being affected. According to learned counsel, the trial Court failed to appreciate these factual inconsistencies and instead confined itself to discussing the legal compliance of NDPS provisions without testing the foundational facts of recovery and possession. He argued that the evidence of P.W.1 on detection was inherently improbable, particularly when he claimed that the entire first- class compartment contained only the accused and baggage, yet he did not immediately inform the TTE or other railway staff present in the train. It was contended that the trial Court dealt superficially with the question of travel by the appellants by observing that they were travelling without ticket, which caused prejudice. It was also submitted that P.W.2 did not corroborate P.W.1 on detection of contraband from the train and that P.W.6 (I.O.) admitted that he had no personal knowledge of the apprehension of the accused, had not prepared any spot map, and had not visited the compartment from where the alleged recovery was made. It was further argued that though the prosecution alleged admission by the accused before P.W.1 regarding ownership of the baggage and its contents being ganja, such admission was neither recorded judicially nor properly discussed by the trial Court. 9. Mr. Pattnaik further argued that in NDPS cases, the presumption under Section 54 arises only after foundational facts of recovery and conscious possession are proved. It was submitted that in the present case, recovery itself is doubtful and not corroborated even by the evidence of the official witnesses, and therefore, the presumption under Section 54 could not have been invoked. He placed reliance on Sanjeet Kumar Singh @ Munna v. State of Chhattisgarh, [2022] 11 S.C.R. 166, to contend that compliance with statutory safeguards under Sections 42, 43, 49 and 50 of the NDPS Act is of utmost importance, particularly because once possession is proved, the statutory presumption operates against the accused. He submitted that there was unexplained delay of about one month in sending samples to RFSL, Sambalpur, and discrepancies regarding the time of weighment, inasmuch as P.W.1 stated that weighment was done at about 5.00 P.M., whereas P.W.4 stated that he reached GRPS between 10.00 and 11.00 A.M., and the I.O. remained silent on this aspect. On these grounds, it was contended that the prosecution case suffers from serious infirmities and the appellant is entitled to the benefit of doubt and consequent acquittal. 10. Mrs. Maharana, learned Additional Standing Counsel for the State, submitted that the prosecution case is founded on cogent, consistent and reliable evidence which clearly establishes the guilt of the accused persons beyond all reasonable doubt. The factual matrix reveals that on 14.10.1994, while P.W.1 along with P.W.2 and other railway police personnel were performing train guard duty in Hirakhand Down Express, they detected the accused persons sitting alone in a First Class compartment along with three attaché cases and two airbags. On being questioned, the accused persons claimed ownership over the said luggage and P.W.1 noticed smell of ganja emanating from the containers. On further questioning, the accused persons themselves admitted that the containers contained ganja. Thereafter, upon arrival of the train at Titilagarh Railway Station, the accused along with the luggage were brought to G.R.P.S., Titilagarh, where P.W.6, the Officer- in-Charge and an empowered officer under the NDPS Act, conducted search and seizure in the presence of independent witnesses. Upon opening of the containers, ganja was recovered, weighed and found to be 31 kilograms. The contraband was seized, samples were drawn and sealed in the presence of witnesses and the accused, and subsequently sent to R.F.S.L., Sambalpur, which confirmed the substance to be ganja. Thus, the chain of detection, seizure, sampling and chemical examination stands fully established. 11. She further submitted that the testimonies of P.Ws.1, 2 and 6 are consistent and mutually corroborative regarding detection, seizure and arrest. Nothing material has been elicited in cross-examination to discredit their testimony. Merely because seizure witnesses P.Ws.3 and 5 turned partly hostile or P.W.4 partially resiled regarding the identity of containers, the prosecution case cannot be discarded, as it is well settled that conviction can be based upon reliable testimony of official witnesses if found trustworthy. The defence plea that the accused persons were falsely implicated due to refusal to pay Dussehra subscription is wholly improbable and unsupported by any independent evidence. No complaint was lodged by the accused persons to any superior authority, nor were any alleged relatives produced to substantiate the defence version. The surrounding circumstances including the exclusive presence of the accused in the compartment, their claim of ownership over the containers, smell of ganja and subsequent recovery of 31 kg of ganja clearly establish conscious possession. 12. The State further submitted that there has been due compliance with procedural safeguards under the NDPS Act. Section 50 is not attracted in the present case as there was no personal search of the accused persons and the search was confined only to baggage and containers. The detection was initially made by P.W.1, who only questioned and secured the accused and produced them before the empowered officer P.W.6, who thereafter conducted the search and seizure in accordance with law. The legal position as laid down in State of Punjab vs. Balbir Singh, reported in 1994 AIR 1872 and subsequent decisions clearly establishes that Section 50 applies only to personal search and not to the search of bags or containers. Similarly, the requirements of Sections 55 and 57 have been substantially complied with, as P.W.6 has categorically stated regarding safe custody of seized articles, proper sealing of samples and reporting to superior officers. Even assuming minor lapses, the said provisions are directory in nature and unless prejudice is shown, the trial cannot be vitiated. 13. On careful consideration of the evidence on record, this Court finds that the presence of the accused persons inside the First-Class compartment along with the three attaché cases and two airbags is not disputed. The evidence of P.W.1 clearly establishes that the accused persons claimed ownership of the containers and admitted that those contained ganja. The evidence of P.W.2 corroborates the fact that the accused persons along with the containers were brought to G.R.P.S. Titilagarh. The testimony of P.W.1 in that regard is relevant, which is reproduced herein for ready reference:- “As the smell of ganja was coming, on suspicion I asked to those 2 accused persons, what were the contents of those attache and air bags. By that time the train was about to reach Titilagarh Station. They with much reluctance told that the 2 attache and air bag were containing ganja. I asked them to produce if they had any document in support of taking ganja. But they could not produce. When the train stopped at Titilagarh station I called my colleague who were performing their duties with me to that compartment. There we took both the accused persons and the attache and air bags to the G.R.P.S. and produced them before the O.I.C. of G.R.P.S.” The evidence of P.W.6 establishes seizure, sampling and forwarding of samples for chemical examination. The chemical examination report conclusively establishes that the seized substance was ganja. Nothing material has been elicited in cross-examination to discredit the core prosecution version. Page 15 of 18 14. Merely because P.Ws.3, 4 and 5 did not fully support the prosecution in all particulars does not demolish the prosecution case. It is well settled that conviction can be based on the testimony of official witnesses if their evidence is found reliable and trustworthy. In the present case, the evidence of P.Ws.1, 2 and 6 is consistent and inspires confidence. The defence plea that the accused were falsely implicated for refusal to pay subscription appears inherently improbable, particularly in absence of any complaint made by the accused persons before any higher authority. 15. So far as compliance of Section 50 NDPS Act is concerned, the evidence on record clearly establishes that there was no personal search of the accused persons. The search was confined to attaché cases and airbags. The law is well settled that Section 50 applies only to personal search and not to the search of baggage or containers. Therefore, non- compliance with Section 50 is not established in the facts of the present case. Page 16 of 18 16. Regarding Sections 55 and 57 of the NDPS Act, the evidence of P.W.6 indicates that the seized articles were kept in safe custody and that intimation was given to superior officers. Even otherwise, the said provisions are held to be directory in nature and unless prejudice is shown to have been caused to the accused, non-compliance would not vitiate the trial. No such prejudice has been demonstrated in the present case. 17. The contention advanced on behalf of the appellants that the statutory presumption under Section 54 of the NDPS Act could not have been invoked in the absence of proof of foundational facts is found to be devoid of merit in the facts and circumstances of the present case. The evidence on record clearly establishes the recovery of contraband ganja from the conscious and exclusive possession of the accused persons, which has been consistently spoken to by the official witnesses whose testimonies have remained unshaken in cross-examination. The seizure list, sample seal, forwarding letter and the chemical examination report form an unbroken chain of incriminating circumstances proving recovery and nature of the seized substance. Once such foundational facts are proved, the statutory presumption under Section 54 of the NDPS Act legitimately operates against the accused. The reliance placed on Sanjeet Kumar Singh @ Munna v. State of Chhattisgarh, reported in [2022] 11 SCR 166, is misplaced, as the said decision reiterates the requirement of proving recovery and possession, which in the present case stands duly established. Further, the record reflects substantial compliance with the procedural safeguards contemplated under Sections 42, 43, 49 and 50 of the NDPS Act, and no material prejudice has been demonstrated to have been caused to the accused on account of any alleged procedural lapse. Therefore, the argument advanced by the learned counsel for the appellant does not create any dent in the otherwise cogent and reliable prosecution case. 18. In view of the above discussion, this Court finds no infirmity in the finding of guilt recorded by the learned trial Court. The prosecution has been able to prove beyond reasonable doubt that the appellant was in conscious and illegal possession of 31 kilograms of ganja in contravention of the provisions of the NDPS Act. Accordingly, the conviction of the appellant under Section 20(b)(i) of the NDPS Act is hereby affirmed. 19. Coming to the question of sentence, it is brought to the notice of this Court that the appellant has already undergone custody for a period of about 10 months and 24 days. Considering the totality of circumstances, the long pendency of the appeal, and the period already undergone, this Court is of the considered view that ends of justice would be met if the substantive sentence is modified. While maintaining the conviction, the sentence is modified to rigorous imprisonment for one year and the fine amount as imposed by the trial Court is maintained. However, in default of payment of the fine, the appellant shall undergo rigorous imprisonment for six months instead of one year. 20. Accordingly, the CRA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 12th Day of February, 2026/Subhashis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 12-Feb-2026 20:02:20