THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.104 of 2003 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) (1)Rukmini Pradhan (2) Manorama Das (dead) ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Ms. Kirtika Banarjee, Advocate For the Respondent : Mr. Debraj Mohanty, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.01.2026 :: Date of Judgment: 12.02.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants are directed against the judgment and order dated 05.04.2003 passed by the learned Additional Sessions Judge-cum- Special Judge, Jajpur in G.R. Case No.53/5 of 2001, whereby the appellants have been convicted for the offence under Section 20(b) of the N.D.P.S. Act and on that count, they are sentenced to undergo R.I. for two years and to pay a fine of Rs.2,000/- (rupees two thousand) each in default to undergo further R.I. for three months each. Page 2 of 13 2. Heard Ms. Kirtika Banarjee, learned counsel appearing for the appellants and Mr. Debraj Mohanty, learned Additional Government Advocate for the State. 3. During pendency of the present appeal, the appellant no.2- Manorama Das expired. Therefore, vide order dated 19.08.2025, the appeal qua the deceased-appellant No.2 stood abated in absence of any application under Section 394 Cr.P.C. moved by her legal heirs or next friend. Accordingly, consideration of the present appeal is confined to the appellant No.1-Rukmini Pradhan only. 4. The prosecution case, in brief, is that on 10.02.2001 at about 1.00 p.m., the Sub-Inspector of Police of Jajpur Road Police Station, Shri Ramakant Mohanty (P.W.7), on receipt of reliable information regarding clandestine transaction of ganja in the house of one Kirtan Das at Jhatiasahi, made a station diary entry to that effect and proceeded to the spot along with other police personnel, an Executive Magistrate, and two independent witnesses. Upon reaching the spot, the raiding party conducted a search of the said house. It is alleged that during course of the raid, the two accused persons attempted to flee through the rear door of the house but were intercepted by two lady Home Guards accompanying the raiding party. Thereafter, following due compliance with the statutory formalities of search and seizure, the accused persons were searched in the presence of the Executive Magistrate and independent witnesses. On such search, 1 kg of ganja was recovered from the possession of accused Manorama Das (appellant No.2) and 300 grams of ganja was recovered from the possession of the other accused, Rukmani Pradhan (appellant No.1). The seized ganja was weighed, samples were drawn therefrom, and both the bulk and sample packets were sealed in accordance with law. Subsequently, P.W.7 produced the accused persons along with the seized articles before the Officer-in-Charge of Jajpur Road Police Station and submitted a written report narrating the occurrence, which was marked as Ext.7. The sample packets were thereafter sent for chemical examination and the chemical analyst’s report confirmed the seized substance to be ganja. Upon completion of investigation, the accused persons were charge-sheeted for the offence under Section 20(b) of the N.D.P.S. Act. 5. In order to substantiate the charges against the accused persons, the prosecution examined ten witnesses in total. Of them, P.Ws. 4, 6, 7, 8 and 10 were the official witnesses. P.W.9 was the Executive Magistrate, and P.W.1 was an independent witness to the search and seizure. P.W.2 was a witness to the seizure of the sarees of the accused persons, while P.W.3 was a witness to the measurement and demarcation of the spot house and premises conducted by the Revenue Inspector, Sukinda Tahasil. P.W.5 was the goldsmith who allegedly weighed the seized ganja. The defence examined one witness, namely, Narahari Patra, cited as a charge-sheet witness, to whom the seal was allegedly handed over on zimanama, but who was withheld by the prosecution for examination. On being examined by the defence as D.W.1, the said Narahari Patra deposed that his signatures were obtained on two blank sheets of paper at the Police Station under threat. 6. The learned trial Court, placing substantial reliance on the testimony of both official and independent witnesses, arrived at the conclusion that the accused-appellants were in conscious possession of contraband ganja and observed as follows:- “14. A broader or over all consideration of evidence clearly establishes that 1 kg of ganja from the conscious possession of accused Manorama Das and 300 gms of ganja from the conscious possession of accused Rukmini Pradhan were seized by the police on the relevant date and time at Hatiasahi on the backside of the house of Kirtan Das while both the accused persons were attempting to escape from that house.” Further, the learned trial Court, after examining the issue of compliance with the mandatory provisions under Sections 42 and 50 of the NDPS Act, held that the statutory requirements had been duly complied with and, accordingly, found the accused persons guilty as charged. In that regard, the Court has observed as under: “15. In the instant case, the prosecution case as well as evidence clearly manifest that the spot house was simply raided and not searched and therefore, section-42 of the Act has no application at all. Section-50 of the Act deals with the personal search of the accused and his right to be searched before a Gazetted Officer or a Magistrate. In the present case both the accused persons were searched before an Executive Magistrate and therefore, section-50 will be said to have been complied with. As regards non-compliance of section-55 as alleged by the defence it is also seen that it has got no merit since the seized contraband articles were produced by P. W.7 before the Officer-in-Charge of Jajpur Road Police Station (P. W. 10). Thus, it is found that there is full compliance of the mandatory provision u/s. 42, 50 of the Act. Hence, the provision u/s. 55 of the Act though not mandatory but obligatory, the same is found to have been complied with. The discrepancy in Ext.7 as regards overwriting the figure 300 grams is apparently an inadvertent mistake by P.w.7 since at an early stage therein 300 gms. of ganja in figures clearly mentioned. Regarding discrepancy and Ext. 6, Zimanama as regards date of zima of the specimen seal, the same does not seem to be very much material since the zimanama stipulates its execution on 10.2.2001, i.e. on the date of incident. 16. Thus, on consideration of the materials on record, and analysis of evidence and for the reasons indicated above, it is ultimately found that prosecution has been able to prove the charge u/s.20(b) of the N.D.P. S. Act, 1985 beyond all reasonable doubts and, therefore, the accused persons are held guilty of the said charge and are convicted thereunder.” 7. Ms. Banarjee, learned counsel for the appellant by relying upon paragraph-14 of the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan vrs. Paramanand & Anr.1; submitted that the impugned judgment is liable to be quashed on two grounds. Firstly, there is a joint communication made by the I.O. to both the accused persons regarding compliance of Section 50(1) of the N.D.P.S. Act, which is forbidden under law. For convenience of ready reference, paragraph-14 of the said judgment is reproduced hereunder:- “14. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a 1 AIR 2014 SC 1384 purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.” Secondly, in compliance of Section 50 of the NDPS Act, the searching Magistrate should not have accompanied the raiding party. Page 8 of 13 The evidence reveals that in the present case, P.W.9, the Magistrate was requisitioned by the police to accompany the raiding party. He has not only accompanied the raiding party but also carried out search of the accused persons. Therefore, on that count also, Section 50 of the NDPS Act is not complied in its true spirit. Ms. Banarjee, learned counsel for the appellants further submitted that in so far sentencing part is concerned, the same is also against the law because Section 22(B) of the NDPS Act prescribed maximum sentence of six months before it suffers the amendment on 01.05.2014. After the amendment, the sentence is extended to one year. However, in the present case, the learned trial Court having convicted the appellants sentence them to undergo R.I. for two years for offence under Section 20(b) of the N.D.P.S. Act, which is in violation of the provisions of un-amended Section 22(B) of the N.D.P.S. Act. She also submitted that although the sentence was not in confirmity with the provisions of law, the surviving appellant No.1 has already undergone the entire period of sentence and challenging the conviction only with a view to effacing the stigma attached to the conviction. Page 9 of 13 8. I have gone through the entire evidence on record and considered the submission made by the parties. It is no more res integra that a joint communication to more than one accused in a case intimating their right to get themselves searched by a Gazetted Officer or a Magistrate is clearly forbidden under Section 50(1) of the N.D.P.S. Act. In the present case, two accused persons were tried. The evidence has come on record that both the accused persons were jointly communicated by the I.O. regarding their right to be searched by a Magistrate or Executive Magistrate. P.W.7 was the I.O. of this case. He in his testimony has stated as under:- “xxxxx We detained them at the backside of the house and I disclosed before them that if they desired, they might be searched before an Executive Magistrate, to which they both consented. Accordingly, I myself, the Executive Magistrate and the two witnesses, namely, Narahari Patra and Ranjan Barik gave our personal search and then both the accused persons were searched by the two lady home guards…..xxxx” Although the written formatted notice purported to have been given jointly to both the accused persons has not been exhibited, but the I.O. of the case had deposed regarding the same. The evidence of the I.O. (P.W.7) coupled with other materials on record makes it abundantly clear that both the appellants were put to notice by the I.O. informing their right under Section 50(1) of the N.D.P.S. Act jointly, which is completely prohibited under law as per the judgment cited by the appellants in the case of State of Rajasthan (supra). The second limb of erroneous compliance of Section 50 of the N.D.P.S. Act is also writ large in the present case. P.W.9, the Executive Magistrate in his testimony has stated that while he was in his office, he was asked to accompany the raiding party and he has accompanied the raiding party and conducted search of the accused persons. To be precise, he has stated as under:- “…….I asked the police to contact me at my office for the purpose. Accordingly, the O.I.C. with his staff came to my office and I accompanied the police party to village Jhatiasahi with Jajpur Road…….. Xxxx xxxx xxxx xxxx 3. After two females were caught red handed by police, they disclosed before those females their purpose of rounding up the house and expressed their intention to search them personally and also their house. I also gave my identity to those females that I was an Executive Magistrate. I myself as well as all the members of the police party gave personal search before the witnesses and before the accused persons. Xxxx xxxx xxxx xxxx 5. After I and the police party gave our search to the accused and the witnesses, the accused persons were searched by the lady constables and on search, 1 kg of ganja was recovered from the possession of accused Manorama and 300 grams of ganja was recovered from the possession of the other accused Rukmini Pradhan.” 9. From the testimony of P.W.9, this has become clear that he has not only accompanied with the raiding party but also personal search of the accused were carried out in his presence. This part of the evidence of the Executive Magistrate (P.W.9) stood corroborated with the testimony of P.W.8, the A.S.I. of Police, Jajpur Road P.S. P.W.8 in his evidence has stated that a requisition was sent to the Executive Magistrate to remain present at the time of house raid. The Executive Magistrate, who became a party, to the raiding party cannot be utilized for the purpose of compliance of Section 50 of the N.D.P.S. Act to carry out the personal search of the accused persons. The Hon’ble Supreme Court in the judgment of State of Rajasthan vrs. Paramanand & Anr (supra) has held as under:- “15. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed.” 10. From the facts scenario of the present case, it is evident that P.W.9, who accompanied the raiding party and search was carried out in his presence, cannot be termed as independent officer as contemplated under Section 50 of the N.D.P.S. Act. In the aforementioned circumstances, it could be safely held that on both the counts as discussed above, the prosecution has given a go-bye to the compliance of Section 50 of the N.D.P.S. Act. The Hon’ble Supreme Court in the case of Gurjant Singh v. State of Punjab2 and State of Rajasthan vrs. Paramanand & Anr (supra), has unequivocally held 2 (2014) 13 SCC 603 that compliance of the procedural safeguard contemplated under Section 50 of the N.D.P.S. Act is mandatory in nature. 11. Since the mandatory provision of N.D.P.S. Act has not been complied with in the present case as discussed above, I am inclined to give indulgence in this matter. The third point argued by Ms. Banarjee, learned counsel for the appellants regarding the sentencing part lost its relevance because the surviving appellant No.1 has already undergone the entire sentenced period awarded to her. In the light of the aforementioned discussion, the appellant No.1 is acquitted of all the charges under Section 20(b) of the N.D.P.S. Act. The bail bond furnished stands discharged. Accordingly, the judgment and order dated 05.04.2003 passed by the learned Additional Sessions Judge-cum-Special Judge, Jajpur in G.R. Case No.53/5 of 2001 is set aside. 12. Accordingly, the CRLA is allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 12th February, 2026/ Swarna Designation: Senior Stenographer