THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 202 of 2000 (In the matter of an application under Section 374 (2) of the Criminal Procedure Code, 1973) 1. Subash Chandra Rout 2. Bhagirathi Rout …… Appellants -Versus- State of Orissa .….. Respondent For the Appellants : Ms. Agnisikha Ray, Advocate, on behalf of Mr. L.N. Patel, Advocate For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 30.04.2026 : Date of Judgment: 22.05.2026 S.S. Mishra, J. The appellants have filed this appeal assailing the judgment of conviction and order of sentence dated 28.07.2000 passed by the learned Addl. Sessions Judge-cum-Judge, Special Court, Jharsuguda in T.R. Case No. 1 and 2000, whereby the learned trial court convicted the appellants under Section 20(b) of the NDPS Act and sentenced them to undergo R.I. for two years and to pay a fine of Rs.10,000/-, each in default to undergo R.I. for six months. 2. Heard Ms. Agnisikha Ray on behalf of Mr. L.N. Patel, learned counsel for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 29.12.1999, Sri Nagendra Prasad Naik (P.W.7), the Inspector-in-Charge of Brajrajnagar Police Station, received telephonic information regarding illegal possession of ganja by the accused persons at their fish stall in the Brajrajnagar fish market. Acting upon such information, he directed S.I. A. Kujru (P.W.11) to record the same in the Station Diary, which was accordingly entered vide Entry No. 371. Simultaneously, intimation was sent to the Superintendent of Police, Jharsuguda, through D.R. No. 2179 dated 29.12.1999. P.W.7 then deputed S.I. C. Pattnaik (P.W.5) along with S.I. A. Kujru (P.W.11) to proceed to the spot and verify the authenticity of the information. Upon reaching the fish market, they secured the presence of two independent witnesses, namely Chintamani Das (P.W.1) and Jiten Singh (P.W.4), and apprised them of the purpose of the search. After identifying the fish stall of the accused persons, P.Ws. 5 and 11 disclosed their identity and informed the accused of the information received regarding their alleged illegal possession of ganja. The accused were further informed of their right to be searched in the presence of a Gazetted Officer or an Executive Magistrate. Upon the accused expressing their desire to be searched before a Gazetted Officer, efforts were made to secure one. As no such officer was immediately available, the Deputy Superintendent of Police, Jharsuguda, Sri Mahendra Kumar Majhi (P.W.9), who was then present in Brajrajnagar, was requested to attend. Accordingly, P.W.9, accompanied by P.W.7, arrived at the spot at about 11:45 A.M. Thereafter, in compliance with due procedure, the searching officers and witnesses offered their personal search to the accused persons. Subsequently, a search of the fish stall was conducted in their presence, during which a polythene packet containing ganja was recovered from a raised platform inside the stall. Page 4 of 13 The accused failed to produce any valid authority for possession of the same. Thereafter, weighing materials were arranged, and upon weighment conducted by P.W.2, the seized contraband was found to weigh 1.5 kilograms. A seizure list was prepared accordingly. Two samples of 24 grams each were drawn from the bulk quantity. Both the bulk and sample packets were properly packed, stitched in white cloth by a tailor (P.W.12), sealed in presence of witnesses, and signatures were obtained thereon. The seal used by P.W.5 was subsequently handed over to an independent witness for safe custody. On the basis of such recovery, the accused persons were arrested for illegal possession of ganja, and a plain paper F.I.R. was prepared at the spot. Upon return to the Police Station, P.W.7 formally registered the case. The seized articles were duly resealed and kept in the Malkhana under proper entry vide No. 62 dated 29.12.1999. Investigation was thereafter entrusted to P.W.11, who forwarded the necessary reports to the Superintendent of Police and took steps for chemical examination of the sample packets. Page 5 of 13 Upon completion of investigation, finding a prima facie case, charge-sheet was submitted against the accused persons for facing trial, leading to institution of the present case. 4. The prosecution, in order to establish the guilt of the accused persons, examined in all twelve witnesses. Among them, P.Ws. 5, 7, 8, 9, 10 and 11 are officials of the Police Department, who have deposed regarding the seizure of contraband ganja from the possession of the accused persons on 29.12.1999 at their fish stall in the Brajrajnagar fish market. P.W.8, an A.S.I. of Brajrajnagar Police Station, has been examined to prove the seizure of the Station Diary Book covering the period from 18.12.1999 to 29.01.2000 (Ext. 15) and the Despatch Register (Ext. 14). P.W.10, the Stenographer attached to the office of the Superintendent of Police, Jharsuguda, has deposed regarding the receipt of information about the illicit possession of ganja by the accused persons, as well as the communication relating to its seizure by S.I. N.C. Pattnaik on 29.12.1999, marked as Exts. 17 and 18 respectively. P.Ws. 1, 2, 3, 4 and 12 are independent witnesses who have supported the prosecution case by deposing about the seizure of ganja from the accused persons at the said fish stall and the role played by them during the process of search and seizure. P.W.6, who was the Revenue Inspector of Brajrajnagar, has been examined to prove the demarcation of the fish stall. The accused persons chose not to examine any witness in their defence. 5. Learned counsel for the appellants submitted that this is a case where the independent witnesses, P.Ws.1, 2, 3 and 12 have not supported the prosecution case. Therefore, the seizure of the ganja from the exclusive possession of the appellants could not be proved by the prosecution with credible evidence. It is also contended by the learned counsel for the appellants that there is no evidence on record to show that, after the seizure was effected, the seized contraband was properly sealed and kept in safe custody. Therefore, compliance of the provisions of Section 57 of NDPS Act is also doubtful in the present case. It is further contended that in the present case rigors of Section 55 of NDPS Act has not been complied with, as neither the seized articles nor the samples had been produced before the Magistrate when the accused were produced. In view of the shaky and uncorroborated testimony of the police witnesses and in view of non- compliance of the mandatory provisions of the Act, the learned counsel for the appellants submitted that this is a clear case where the petitioners are entitled to acquittal. 6. True is that in the present case all the independent witnesses have not supported the prosecution. But, P.W.5, who is the S.I. of Police, in his testimony, has deposed that he arranged P.Ws.1 and 4 as the independent witnesses and explain them regarding the information he has received. He also requested them to remain present during the search of accused persons. Accordingly, P.Ws.1 and 4 accompanied the raiding party to the spot and they were present when P.W.5 searched the fish stall of the accused person and also in presence of P.Ws.7, 9 and 11. It is the case of the prosecution that after seizure of the articles, the same were properly stitched in a white cloth and were sealed in presence of the witnesses by a brass seal by P.W.5 and the brass seal was handed over to P.W.1 under the proper zimanama. However, both the P.Ws.1 and 4 have blankly denied having any knowledge regarding the seizure. They have deposed that on 29.12.1999 at 10.30 A.M. they were called to the police station and asked to sign on certain papers by the police. The contents of the papers in which they signed are not disclosed to them. Both the witnesses have very specifically denied having any knowledge regarding the seizure. Similarly, P.Ws.2 and 3, those who were examined by the prosecution to support the factum of measurement of the sample ganja and recovery of contraband, have also not supported the prosecution. P.W.12 was examined by the prosecution to establish that he was the tailor, who had prepared the cloth packet to preserve the samples and the seized contraband. The said witness has also specially denied having any knowledge regarding the same. Therefore, the prosecution although relied upon the independent witnesses like P.Ws.1, 2, 3, 4 and 12, but none of them lend any support to its case. Therefore, the prosecution is left with only official witnesses. Hence, the entire case of the prosecution now hinges upon the testimony of P.Ws.5, 7, 9 and 11. All these witnesses are official witnesses. 7. The reading of the evidences of these witnesses’ makes it clear that the raid has taken place, recovery was effected and seized of contraband has taken place from the appellants. The sample was rightly drawn up and thereafter the sample was sealed and dispatched for chemical examination. All due procedure contemplated under NDPS Act has been scrupulously followed. If the evidences of all these official witnesses are read in unison and in conjunction, no fault could be found in the prosecution version regarding the seizure, search or the post seizure procedural follow up of the requirements. Taking into consideration the entire evidence of the prosecution and the argument of the defence that the official witnesses cannot be believed being interested witnesses, the trial court has returned the following findings:- “…….It is also the consistent evidence of P.Ws.5, 7, 9 and 11 that after the ganja was recovered P.Ws.2 and 3 were summoned and so also P.W.12 and it is P.W.3 who weighed the main ganja packet and it was P.W.2 who in his weighing instrument drew samples from the main ganja packet which weighing 24 grams twice. Even if P.Ws. Even if P.Ws. 1,2,3,4 and 12 they have not at all supported the fact of search and seizure of ganja from the fish stall of the accused persons but I do not find any reason for discarding the evidence of P.Ws.5,7,9 and 11 as their evidence on these remained aspects has virtually remained unshaken. It is not the settled position of law that the version of official witnesses should be discarded and should be viewed with suspicion when there is no independent corroboration. There is nothing on record to show if P.Ws,5,7,9 and 11 had any animosity with any of the accused persons so as to entangle them falsely in fabricating papers. It would be highly unjust and improper to brush aside the evidence of these witnesses as because the other independent witnesses have turned hostile. The evidence of official witness when remain consistent and cogent their evidence should not be tinged with the suspicion as in the present day society as I have already discussed above it is the order of the day that even a heinous offence is committed in broad day light and that too in presence of hundreds of people but hardly anybody comes forward to speak about that incident and whosoever name as witnesses they do not support the case at times for reasons best known and needs no explanation. In this case it is not only the consistent evidence of P.Ws.5,7,9 and 11 that after recovery of polythene packets from the fish stall of the accused persons said ganja was weighed and thereafter P.W.5 drew samples twice and kept them in separate packets which were kept separately and were stitched by wrapping with white clothes and were sealed with the personal brass seal of P.W.5. M.OS. I, II & III which were produced before the court during trial bears the personal seal of the P.W.5 and also bears the signature of the witnesses and of the accused persons. It is the consistent evidence that after those articles were sealed the sealed articles were kept in Malkhana of Brajrajnagar P.S. and P.Ws.5 and 7 and P.W.11 they deposed that P.W.5 had handed over the plain paper F.I.R. Ext.10 which he drew up at the spot to I.I.C. along with seized properties and P.W.7 resealed the same and kept the same in the Malkhana which was entered in the Malkhana register 62/99 dated 29.12.1999. The said Malkhana register of Brajrajnagar P.S. has been marked as Ext. 12 and the relevant entry that is Malakhana register entry no. 62/99 has been marked as Ext. 12/1. It is the evidence of P.Ws.7 and 11 that on 30.12.99 the seized articles were produced before the learned S.D.J.M., Jharsuguda along with the accused persons and such fact also gets corroboration from Ext. 12/1 and Station Diary Entry No. vide Ext.15/3 and that the P.W.7 had resealed the three ganja packets and kept the same in the malkhana by entering the said fact in Malkhana register vide No.62/99 and kept separately on 29.12.99 at 1 P.M. finds ample corroboration from the S.D.entry No.733 dated 29.12.99 marked Ext 15/2. The record in T.R.Case No. 1/2000 shows that on 30.12.99 when the seized articles were produced before the S.D.J.M., Jharsuguda he had directed that those articles are to be produced before the Special Court Jharsuguda on 3.1.2000. The order dated 3.1.2000 passed by the Special Court specifically shows that the seized articles were produced that day by the I.O. and the same was received by the Malkhana Clerk and the record further shows that on the prayer of the I.O. Sri Kujur on 3.1.2000 the S.D.J.M., Jharsuguda ordered that the sample seized packet containing 24 grams of ganja to be sent to the Deputy Director, R.F.S.L., Sambalpur for chemical examination.” 8. It is true that the prosecution case is only based on the evidence of the official witnesses. But as discussed by the learned trial court, which is reproduced hereinabove, merely the witnesses are official witnesses, their testimony cannot be discarded. In so far as the independent witnesses are concerned, if their evidence is analyzed, at least the evidence of P.Ws.1 and 4 have identified their signature in the seizure report, however partly did not support the prosecution, as a result of which they have been declared hostile. If the part of evidence of P.Ws.1 and 4 are read along with evidence of the official witnesses mainly P.Ws.5, 7 and 9 besides the part evidence of other hostile witnesses, the findings recorded by the learned trial court cannot be found faulted with. Therefore, I am in agreement with the impugned judgment whereby the appellants have been found guilty for the offence under Section 20(b) of the NDPS Act. 9. At this stage, learned counsel for the appellants submitted that the incident relates back to the year 1999 and at the time of incident the appellants were at their early thirties and at present they must be in their sixties. The appellants were arrested in the present case on 29.12.1999 and released on bail on 07.01.2000. Subsequently, after recording of conviction on 28.07.2000, they were taken to custody and released on bail on 11.10.2000. Therefore, in toto, the appellants have undergone custody for a period of two months twenty six days. In view of the aforementioned custody period, learned counsel for the appellants submitted that the sentence awarded by the learned trial court to the appellants to undergo R.I. for two years and to pay a fine of Rs.10,000/- each may be altered to that of the sentence the appellants have already undergone. 10. Regard being had to the quantity of contraband recovered, i.e., 1.5 kg., which is much less than the prescribed commercial quantity and the prolongation of the litigation for more than three decades and by taking into consideration the age of the appellants and all attending circumstances, this Court feels it appropriate to accede to the prayer made by the learned counsel for the appellants. However, to strike the balance of sentence, the fine amount is increased to that of Rs.25,000/- (Rupees twenty five thousand) to be deposited by each of the appellants and in default of making such amount, they are liable to undergo R.I. for two months. In so far as the substantive sentence of two years awarded by the learned trial court is concerned, the same is modified to the period the appellants have already undergone. 11. With the aforesaid modification of the sentence awarded by the learned trial court, the criminal appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd of May, 2026/Ashok MOHAPATRA