THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 263 of 1998 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Bharat Bhoi ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Devashis Panda, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.03.2026 : Date of Judgment: 16.04.2026 S.S. Mishra, J. The present appeal has been preferred by the appellant assailing the judgment and order dated 07.09.1998 passed by the learned Sessions Judge-cum-Special Judge, Khurda, Bhubaneswar in T.R. Case No.1 of 1998. By the impugned judgment, the learned Trial Court found the appellant guilty of the offence punishable under Section 20(b) of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of two years and six months along with a fine of Rs.1,000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months. 2. Heard Mr. Devashis Panda, learned Counsel for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 05.01.1998, P.W.3, the Sub-Inspector of Excise attached to E.I. and E.B., Bhubaneswar, while on patrol duty at Old Town, Bhubaneswar at about 2:30 P.M., received reliable information that the accused would be arriving in that area carrying contraband excisable articles. Acting upon such information, P.W.3 made necessary preparations and, in the meantime, requested two persons passing by to act as independent witnesses. While P.W.3 along with the witnesses were present at the spot, the accused was seen approaching carrying a bag. He was intercepted and detained by P.W.3, who disclosed his identity by showing his official identity card and informed the accused of his intention to conduct a search of his person as well as the bag in his possession. The accused was further apprised of his right to be searched in the presence of an Executive Magistrate or a Gazetted Officer. However, the accused consented to be searched by P.W.3 himself. Upon observing necessary formalities, the personal search of the accused was conducted, but no incriminating article was recovered from his possession. Thereafter, the bag in his possession, which was tied with a rope, was opened by P.W.3. On search, an L&T cement ‘jari’ bag containing a substance was found inside. Upon opening the said ‘jari’ bag, ganja was found. The contraband was weighed at the spot and was found to be 5 kilograms. Subsequently, the seized ganja was kept in the same ‘jari’ bag, the mouth of which was properly tied, and a paper slip bearing the signatures of the accused, the witnesses, and P.W.3 was affixed thereto. The contraband was seized in presence of the witnesses and a seizure list was prepared at the spot. A copy of the seizure list was handed over to the accused, who acknowledged receipt thereof. Thereafter, the accused was arrested and brought to the office of P.W.3 along with the seized articles and relevant documents. The seized property was duly deposited in the office Malkhana. P.W.3 submitted a detailed report of the search and seizure to the Deputy Commissioner of Excise, Central Division. Subsequently, the accused was forwarded to the Court along with the seized property and forwarding report. The seized samples were drawn by the learned S.D.J.M., Bhubaneswar and sent for chemical examination, which, upon analysis, was confirmed to be ganja. 4. In order to establish its case, the prosecution has examined three witnesses. P.W.1, namely Anil Kumar Das, was an independent witness to the search, recovery and seizure, who has deposed regarding the entire occurrence. P.W.2, S.A. Khan, Assistant Sub- Inspector of Excise, and P.W.3, the Sub-Inspector of Excise, both attached to E.I. and E.B., Bhubaneswar, were the official witnesses, who have also testified in detail about the entire incident. The defence plea is one of complete denial of the allegations. No evidence has been adduced on behalf of the defence. Page 5 of 19 5. The learned Trial Court, upon a detailed analysis of the evidence available on record, returned its findings in the following terms:- “XXXX XXXX XXXX In this case the accused was searched on the public road in presence of witnesses and from the bag in his possession, contraband Ganja was recovered. Hence, it cannot be said that the mandatory provision as laid down in Sections 41 and 42 of the N.D.P.S. Act have not been complied with in this case. It cannot be disputed that the Sub-Inspector of Excise is the authorised officer to conduct search and seizure etc., under the N. D. P. S. Act. P.w.3 who is the searching and seizing officer of this case is empowered to do the same under the provisions of the N.D.P.S. Act and Section 53 of the N.D.P.S. Act has been complied with in this case. The sample Ganja was sent to the Chemical Examiner for examination and Ext. 10 the report of the Chemical Examiner reveals that the sample was found to be Cannabis (Ganja). 7. In view of my above mentioned discussions it is crystal clear that the accused on 5.1.1998, was in illegal possession of 5 Kgs. of Ganja and hence he is liable to be convicted u/s.20 (b) of the N.D.P.S. Act. In the result, the accused is found guilty of the charge u/s.20(b) of the N.D.P.S. Act and is convicted thereunder.” 6. Mr. Devashis Panda, learned counsel for the appellant, assailing the impugned judgment, submitted that the prosecution case suffers from serious infirmities and non-compliance of mandatory provisions of the N.D.P.S. Act, thereby rendering the conviction unsustainable in the eye of law. It is contended that though the prosecution cited two independent witnesses, namely P.W.1, Anil Kumar Das and one Bipin Das, the latter has not been examined without any explanation, thereby creating a gap in the prosecution case. P.W.1, the sole independent witness examined, has not supported the prosecution in material particulars, as he has merely stated to have signed on a paper, the contents of which he does not remember, thus casting doubt on the alleged search and seizure. 7. Learned counsel further submitted that the evidence of P.W.2, S.A. Khan, Assistant Sub-Inspector of Excise, is completely silent with regard to compliance of the mandatory provisions under Sections 42 and 50 of the N.D.P.S. Act. Referring to the evidence of P.W.3, the searching and seizing officer, it is submitted that though he claims to have given the appellant the option of being searched before a Gazetted Officer or Magistrate and to have reduced the same into writing (Ext.3), the said compliance is highly doubtful as P.W.3 himself admitted that the appellant is illiterate and incapable of reading or writing beyond signing in Odia. It is further pointed out that there is no mention in the seizure list or report that the contents of such notice were read over and explained to the appellant or that the appellant requested the officer to reduce his option into writing. Moreover, during reading of the statement of the accused under Section 313 Cr.P.C., he has specifically denied having exercised any such option and stated that his signature was obtained on a blank paper. In such circumstances, the alleged compliance of Section 50 of the N.D.P.S. Act becomes questionable. 8. It is further contended that the prosecution has failed to establish proper sealing of the seized contraband. None of the witnesses have stated that the seized articles were sealed with any brass seal or in accordance with the prescribed procedure. The alleged sealing with a paper slip, without proper safeguards, leaves ample scope for tampering and manipulation. It is submitted that proper sealing and its documentation are mandatory requirements under Section 55 of the N.D.P.S. Act, and failure in this regard creates serious doubt about the safe custody and sanctity of the seized contraband. 9. Mr. Panda, learned Counsel for the appellant also questions the authenticity of the Malkhana register entry (Ext.11). It is argued that the said entry contains reference to T.R. Case No.1 of 1998, which was not in existence at the time of its alleged preparation. Further, the said document neither bears the signature nor the seal of the Officer- in-Charge, and admittedly, the same was not forwarded to the Court along with the forwarding report. Such discrepancies, according to the learned counsel, clearly indicate manipulation and render the document unreliable. In view of the aforesaid inconsistencies, omissions and procedural lapses, it is contended that the prosecution has failed to prove the foundational facts of conscious and exclusive possession, as well as the legality of search and seizure, beyond reasonable doubt. The non-compliance of mandatory provisions of the N.D.P.S. Act vitiates the entire prosecution case and therefore, the appellant is entitled to the benefit of doubt and consequent acquittal. 10. Per contra, Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State, while supporting the impugned judgment, contended that the prosecution has duly established its case and the alleged discrepancies highlighted by the appellant are without substance and does not cause potential threat to the credibility of the evidence at large. It is submitted that P.W.3, in paragraph-5 of his evidence, has categorically stated that after weighment, the seized contraband ganja was properly sealed and a paper seal was affixed by means of lac. This version is further fortified by the order sheet dated 06.01.1998 of the learned S.D.J.M., Bhubaneswar, which revealed that the seized contraband was produced before the Court in a sealed condition and that the sample was drawn only after breaking open the seal for the purpose of sending it to the State Drugs Testing & Research Laboratory, Orissa, Bhubaneswar. In view of such contemporaneous judicial record, the contention of the appellant that sealing by paper slip renders the seizure doubtful or susceptible to tampering is wholly untenable. 11. Learned Additional Standing Counsel further submitted that P.W.3, in paragraph-6 of his deposition, has stated that he sent a detailed report of search and seizure to the Deputy Commissioner of Excise, Central Division, which has been marked as Ext.5 and was duly forwarded on 06.01.1998, thereby demonstrating due compliance with the statutory requirements. It is also his evidence that the seized articles were kept in the office Malkhana and corresponding entry was made in the Malkhana Register, which has been marked as Ext.11. During cross-examination, P.W.3 has clarified that the T.R. number was entered in Ext.11 subsequently upon receipt from the Court. Since Ext.11 was exhibited without any objection at the time of trial, it is not open to the appellant to question its admissibility at this stage. In support of the aforesaid contention, learned counsel has placed reliance on the judgment of the Hon’ble Supreme Court in P.C. Purushothama Reddiar v. S. Perumal1, wherein it has been held as follows:- “19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility see Bhagat Ram v. Khatu Ram and Another. 1 1972(1) SCC 9 20. It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.” It is, therefore, submitted that the prosecution has successfully proved the charge beyond all the reasonable doubts and the conviction recorded by the learned Trial Court warrants no interference. 12. With the help of learned counsel for the parties, I have gone through the evidence available on record so as to appreciate the evidence and to analyse as to whether the learned trial Court has rightly relied upon the evidence to arrive at a conclusion that the appellant is guilty of the offence punishable under Section 20(b) of the N.D.P.S. Act or not. 13. In this case, P.W.1 is an independent witness. He in his evidence has deposed that the civil dressed Excise Officers stopped him on his way at Canal Bandha and asked him to stop there, as they were apprehending that someone is transporting ganja in that way. All of them stayed there conspicuously waiting for the person to cross that way. After some time, the accused arrived and the Excise people detained him. Immediately thereafter, the S.I. of Excise wrote the incident in a paper and got it typed through someone and also obtained his signature, i.e. Ext.1. The S.I. of Excise, P.W.3 asked the detained the accused, if he is willing to be searched by him or by some Magistrate or Badababu. The accused replied the S.I. may search him. Then P.W.3 reduced the same into writing and handed over the writing notice to the accused, which is Ext.2. In Ext.2, the signature of the accused was also obtained. The original Ext.2 was handed over to the accused by P.W.3. After receiving the original of Ext.2, the accused told P.W.3 to get him searched. This also reduced to writing i.e. Ext.3. He further stated that in the said write up, he has signed and his signature is marked as Ext.3/1. The signature of one Bipin Das was also obtained in the same paper as Ext.3/2. His personal search was done and nothing was found. He and Bipin Das also searched the accused, but nothing was recovered. P.W.3 opened the bag which the accused was holding in his right hand and one jerri bag containing ganja was recovered from inside the bag. It was properly weighed, which was found to be 5 Kgs. of ganja. The seizure list was prepared as Ext.4 and the signature of the present witness and the independent witness Bipin Das was obtained as Ext.4/1 and Ext.4/2 respectively. 14. The defence raised the plea that the independent witness P.W.1 who has fully supported the prosecution is a stock witness and he himself was involved in one of the N.D.P.S. Act. Therefore, the defence put a suggestion to the said witness regarding the same, which was denied by the witness. P.W.2 was the A.S.I., who was also a part of the patrolling party with P.W.3. He also narrated the incident and subsequent procedural follow up made by P.W.3 in a similar way as has been narrated by P.W.1. P.W.3 was the Investigating Officer, in his evidence, he has also meticulously narrated the incident dated 05.01.1998 which started from 2.30 P.M. The procedural safeguard as required to be followed under the provisions of the N.D.P.S. Act, has been diligently followed by P.W.3 as has been deposed by this witness is his evidence. 15. Mr. Devashis Panda, learned counsel appearing for the appellant pointing out to paragraph-5 of the evidence of P.W.3 submitted that in the present case, the I.O. has not followed the procedural safeguard contemplated under Section 57 of the N.D.P.S. Act. He has emphatically relied upon paragraph-5 of the evidence of P.W.3, which reads thus: “5. Then I poured the Ganja to the first gunny bag from the Jari bag and took the weighment, which came to 5 Kgs. The weighed Ganja was kept in the said Jari bag and tied the mouth of that Jari bag, kept it inside the first bag, tied its mouth and I put paper seal on the bag taking the signature of the accused, witnesses and myself in a slip of paper and pasted it by means of Lac, which is called paper seal.” However, P.W.3 in paragraph-6 of his evidence has very categorically stated that he came to the Office along with the accused, seized property, seizure list etc. and kept the seized property in the Malkhana. He also entered this in C-7 case register in which the case particulars, list of seized property are maintained. He further stated that he sent the detailed report of search and seizure to the Dy. Commissioner, Excise, Central Division through Inspector, Excise, E.I. & E.B., Cuttack. The office copy of the said report has been exhibited as Ext.5. Reading of the evidence of P.W.3, as discussed above, makes it clear that the I.O. has indeed complied with the requirement of Section-57 of the Act to report the arrest and seizure to the Senior Officer. Page 15 of 19 16. Mr. Panda, learned counsel, by pointing out the evidence of P.W.3 in the cross-examination has submitted that the Malkhana Register has been manipulated. As such, the very seizure and the safe custody of the seized ganja is compromised in the present case. He has read out the evidence of P.W.3 in the cross-examination. The following portion of evidence in the cross-examination has been pointed out: “Further Examination by prosecution:- I have brought the C-7 Register-cum-Malkhana Register from my Office. I have kept the seized article in the office Malkhana and accordingly I have made entry in this register. This is that entry Ext.11. Cross-Examination by defence :- It is not a fact that Ext.11 does not bear any date. The date is 5.1.98, which is mentioned against that entry. As per Form No.C-7 of Excise Manual, we are maintaining this register. The name of this Register is Malkhana-cum- Case Register. It is audited regularly. The label indicating that ‘C-7 case and Malkhana Register’ is missing. After getting the T.R. number from the court, I mentioned the same against the entry. It is not fact that I have subsequently prepared Ext.11 in order to suite the case. Ext.11 has been made in my own hand, but I have not put my signature therein. It is not a fact that this register is not maintained in regular course of business in my office, for which there is no mention of the name of the register in the Book containing Ext.11.” From the evidence in the cross-examination, it appears that in Ext.11, in the Malkhana Register, while the entry was made by the I.O., the T.R. Case No.1 of 1998 has been entered. In fact, at the time of entry as reflected in Ext.11, there was no question of the I.O. knowing the T.R. case number, as it was not in existence then. However, in the cross-examination, P.W.3 has very clearly explained that, after he got the T.R. Case number from the Court, he mentioned the same against the entry and it is prepared against the entry. He denied to the suggestion that Ext.11 was subsequently prepared. 17. To counter this submission of Mr. Panda, learned counsel for the appellant, Mr. Panigrahi, learned Additional Standing Counsel has submitted that the said exhibit having been come on record without any objection from the defence, the submission of Mr. Panda at this stage is not entertainable. He has already relied upon the judgment of the Hon’ble Supreme Court in P.C. Purushothama Reddiar (supra). I am fully in agreement with the contention of Mr. Panigrahi, learned State Counsel, hence the point raised by Mr. Panda is devoid of merit. 18. By taking into consideration the nature of evidence brought on record, the learned trial Court, inter alia, returned the following finding: “Perusal of Ext.3 reveals that the accused gave his option to be searched before P.W.3 in presence of the available independent witnesses who were present there and he did not want to be searched before a Gazetted Officer or any Executive Magistrate. Ext.3 has been signed by the accused vide Ext.3/4, the other witnesses and P.W.3 himself. There is no suggestion to any of the witnesses that they have taken the signature of accused in Ext.3 in blank paper and that the contents thereof were not written at the spot and that those were not read over and explained to the accused and the witnesses. In the cross- examination P.W.3 has categorically stated that the accused himself told that he does not know writing and reading excepting putting his signature, he has not ascertained the same during course of investigation from any other source. Thus, I find that the provisions as laid down in Section 50 of the N.D.P.S. Act has been properly complied with in this case. With regard to the safe custody of the seized articles it is argued on behalf of the accused that the same being not deposited before any O.I.C. of the police station, the trial is vitiated and the accused is entitled to acquittal. In this case the seizure was made by the Excise Sub-Inspector and he has categorically deposed that the seized articles were kept in the Malkhana of his office and he has entered this in the Register C- 7. The relevant entry is marked as Ext.11. Perusal of the register reveals that the detection of cases and keeping of the seized property in the Malkhana have been entered in this register. P.W.3 has also deposed that the label ‘C-7 Case and Malkahana Register’ attached to this register is missing and this register is maintained as per Form No.C-7 of the Excise Manual and the name of this register is Malkhana-cum-Case Register which is audited regularly and after getting the T.R. number from the Court he entered the same against the entry. He has bluntly denied the suggestion that he subsequently prepared Ext.11 for the purpose of this case. He has categorically deposed that entry Ext.11 has been made in his own hand but he has not put his signature there. He also denies the suggestion that this register is not maintained in the regular course of business for which there is no name of the register in the book containing Ext.11.” 19. I have no reason to disagree with the analysis of evidence made by the learned trial Court to arrive at a conclusion that the appellant is guilty of the offence under Section 20(b) of the N.D.P.S. Act. Page 18 of 19 Therefore, the judgment of conviction recorded by the learned trial Court stands affirmed. 20. At this stage, Mr. Panda, learned counsel for the appellant submitted that the appellant was about 35 years of age at the time of the incident which had taken place in the year 1998. At present, he would be about 60 years of age. The alleged recovery of the ganja was only 5 kgs., which is not the commercial quantity. The appellant has already undergone custody for a period of 6 months and 17 days in the present case. Keeping in view the long pendency of the appeal, the age of the appellant and the nature of evidence, Mr. Panda, learned counsel submitted that even if the conviction recorded by the learned trial Court is up held by this Court, a lenient view should be taken while sentencing him in the present case. 21. I have carefully considered the submissions made by learned counsel for the parties and taken into consideration the entire circumstances of the present case, this Court is of the view that the sentence imposed by the learned trial Court necessitated to be modified. 22. Accordingly, while upholding the conviction under Section 20(b) of the N.D.P.S. Act against the appellant, the sentence of 2 years and 6 months imposed by the learned trial Court stands modified to that of the sentence the appellant has already undergone. However, the fine amount of Rs.1,000/- is increased to Rs.5,000/-. In default of paying the fine amount, the appellant is liable to undergo R.I. for one month. 23. With such modification, the CRA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 16th of April, 2026/ Subhasis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack.