THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.198 of 2003 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Bishnu Raula ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Mr. Tukuna Kumar Mishra, Amicus Curiae For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.03.2026 :: Date of Judgment: 16.04.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 18.07.2003/08.08.2003 passed by the learned Sessions Judge-cum-Special Judge, Koraput at Jeypore in T.R. Case No. 80 of 2000 (arising out of P.R. No. 227/2000-2001 of the Sub Inspector of Excise, Jeypore), whereby the appellant has been convicted for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default to undergo further rigorous imprisonment for six months. 2. The present appeal has been pending since 2003. When the matter was called for hearing continuously, none appeared for the appellant. Therefore, on 24.03.2026, this Court requested Mr. Tukuna Kumar Mishra, learned counsel, who was present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Mishra. 3. Heard Mr. Tukuna Kumar Mishra, learned Amicus Curiae for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. Page 3 of 19 4. The prosecution case in brief is that on 31.08.2000 at about 7:30 P.M., the Excise Sub-Inspector, Jeypore, received reliable information regarding illegal transportation of contraband Ganja through the Jhadanga Dallpa Ghat of river Kolab near village Phampuni under Jeypore Sadar Police Station in the district of Koraput. Acting upon such information, the said officer intimated his superior authority and requisitioned the presence of an Executive Magistrate from the office of the Sub-Collector, Jeypore. Thereafter, he, along with his staff and the requisitioned Executive Magistrate, proceeded to the spot and kept surveillance during the night. 5. On the following day i.e. on 01.09.2000 at about 7:00 A.M., the accused, namely Bishnu Roula, was found approaching the spot in a suspicious manner carrying a bamboo stick (Kaudi). Being suspicious, the Excise staff intercepted and detained him in the presence of the Executive Magistrate-cum-Additional Tahsildar and independent witnesses. Upon search of the bamboo Kaudi carried by the accused, two bags were found concealed therein containing Ganja, consisting of flowering and fruiting tops of cannabis. 6. The seized contraband was weighed on the spot and found to be approximately 20 kilograms, i.e., about 10 kilograms in each bag. Thereafter, the contraband Ganja was seized in the presence of witnesses. Samples of 0.25 grams each were drawn from the seized articles, making four sample packets, which were properly sealed with paper slips bearing the signatures of the Executive Magistrate, independent witnesses, and the accused. The accused was arrested at the spot and forwarded to the Court along with the seized articles. Subsequently, the samples were sent for chemical examination to the State Drugs Control and Research Centre, Bhubaneswar. 7. Upon completion of investigation, the accused was put to trial for alleged commission of offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused denied the allegations and pleaded innocence. Page 5 of 19 8. In order to prove its case, the prosecution examined four witnesses to substantiate the charge. P.W.1 was the Excise Constable who accompanied the raiding party. P.W.2, the Excise Sub-Inspector, was the detecting officer as well as the Investigating Officer of the case. P.W.3 was an independent witness from the locality, and P.W.4 was the Executive Magistrate-cum-Tahasildar who was present during the search and seizure. 9. The learned trial Court, upon appreciation of evidence, held that the prosecution had successfully established that the accused was found in conscious possession of contraband Ganja while transporting the same, and that the search and seizure conducted by the Excise Sub- Inspector in presence of the Executive Magistrate and independent witnesses was proved beyond reasonable doubt. The court rejected the defence plea regarding non-compliance of Sections 42, 50, 52 and 55 of the NDPS Act, observing that there was substantial compliance with the statutory provisions and that the procedure adopted was reasonable and practicable in the given circumstances, without causing any prejudice to the accused. Minor discrepancies in the evidence were held to be natural and not sufficient to discredit the prosecution case. Accordingly, the accused was found guilty under Section 20(b)(i) of the NDPS Act, 1985 and was sentenced accordingly. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “Consequently on the basis of these documentary evidences, I am not inclined to accept the aforesaid submission of the learned defence counsel pertaining to the points involved regarding the contents of those documents that there is no official requisition for the Executive Magistrate and that there was no Intimation to the higher authority. After going through the substantive provisions of Section 50 of the N.D.P.S. Act, 1985, which provides the procedure to be followed by the searching officer, authorised to search, under section 41,42 and 43 thereon. I find that only in case when the person to be searched required that to be searched in presence of a Gazetted officer or nearest Magistrate, then only the searching officer will do the same. More over Sub section 5 also further provides that in exceptional circumstances, the searching officer may not also comply the searching procedure, provided under Sub section 1 of section 50 thereon. Thus, while providing sufficient safeguard for the search, the basic factor of truth of the searching officers search has been kept as genuine. In the instant case the searching officer had pre-requisitioned on Executive Magistrate and took him with him and when the necessity of search arose, he asked the accused whether he is prepared to be searched in presence of such Executive Magistrate and only after his affirmative reply, he has conducted his search. So having regard to the particular facts and circumstances under which the alleged sudden detection of the contraband article has been discovered by him, the procedure followed by him in regard to search appears to be sufficient compliance of provision of Section 50 of N.D.PS.Act and not to have caused any prejudice to the accused, if the real spirit of the provision of section 41, 42, 43 and 44 of the Act is taken into consideration. Therefore, in my opinion the search made by the detecting officer, in this case of the person and personal belonging of the accused do not reveal any manifesting doubt in my mind. A general reading of section 50 does not indicate that there is provision of option is there. If the wordings of that section is read correctly in its's true spirit and on the other hand it reveals if the person to be searched, so required, means if, he, the person to be searched, voluntarily tells that he should be taken to a nearest Gazetted officer or nearest Magistrate to be searched. This wording does not in ordinary parlance reveal any option to be offered by the searching officer to the person to be searched and on the other hand it reveals that the person to be searched, who intend such a proposition, before the searching officer. Even, in such a condition also in this particular case, the searching officer, formed from his own side, asked the accused whether he is willing to be searched in presence of the Executive Magistrate and it is only on his affirmative reply, he cibdycted his search and found the contraband article from his possession. So, I do not find, in general, any contravention of section 50 in regard to the search made by the detecting officer. However, the principles of the reported decision relied on behalf of the accused gives out a contradictory view. xxxxx xxxxxx xxxxxx 18. Thus, on the basis of my aforesaid discussion and analysis of evidence and the points of law applicable to the facts of the instant case, I am of the finding that the search and seizure made by the detecting officer, i.e. P.W.2, in the particular scenario of this case appears to be quite reasonable and has been proved beyond reasonable certainty. There is no room for reasonable doubt in my mind that without affording of possible legal safeguards to the accused, his person and his belongings have been searched and in result of such search 20 K.Gs. of contraband Ganja has been recovered from his conscious possession. 19. On the basis of the aforesaid finding I find that all the submissions made on behalf of the accused asserting that those aspects create reasonable doubt on the truth of the prosecution case, are not true and on the other hand those do not create any reasonable doubt regarding the prosecution case of alleged seizure of contraband Ganja from the possession of the accused and the same is quite believable. Therefore, I discard all the aforesaid points, raised on behalf of the accused. In consequence, I hold that the alleged Ganja was recovered from the conscious possession of the accused or /in the alternative, the same was seized from his conscious possession, when he was transporting the said Ganja. Therefore, he is found to be guilty under section 20(b)(1) of the N.D.P.S Act. 1985.” 10. Mr. Mishra, the learned Amicus Curiae for the appellant contended the impugned judgment of conviction under Section 20(b)(i) of the NDPS Act is unsustainable in law and on facts, as the prosecution has failed to establish its case beyond reasonable doubt. The alleged seizure of 20 kilograms of Ganja on 31.08.2000 suffers from serious procedural irregularities. The evidence of P.W.2, the Investigating Officer, itself discloses that the seized contraband was not immediately deposited in Court on 01.09.2000 due to closure and was produced only on 02.09.2000, without any explanation regarding its safe custody, particularly when admittedly there was no Malkhana in the Excise Office. This creates a serious doubt regarding the sanctity of the seized articles and the possibility of tampering cannot be ruled out. 11. He further submitted that there has been clear non-compliance of the mandatory provisions under Sections 42, 50, 52 and 55 of the NDPS Act. The Investigating Officer has categorically admitted that he did not mention in the prosecution report or case diary that he had informed his superior authority prior to the raid, nor did he produce any office copy of such intimation. Similarly, no valid requisition for the presence of the Executive Magistrate has been proved during trial. Crucially, P.W.2 has admitted that he did not record or mention that the accused was apprised of his right to be searched before a Gazetted Officer or Magistrate, rendering the alleged compliance of Section 50 deceptive. He contended that any partial or vague offer does not amount to valid compliance in the eyes of the law. 12. Mr. Mishra, learned Amicus Curiae further argued that the manner by which the search and seizure has been done itself is doubtful. The Executive Magistrate (P.W.4) was part of the raiding party from the inception, thereby compromising the independence of the search. The independent witness (P.W.3) has admitted that he was called after the alleged detection and merely signed the documents, indicating a mechanical and post facto compliance. Additionally, the brass seal was not handed over to any independent witness and the paper seals were not properly proved during trial, further casting doubt on the integrity of the seizure process. 13. He lastly submitted that the learned trial court erred in law by relying upon unproven documents allegedly available on the record to cure the lacunae in the prosecution case, which is impermissible. He placed reliance on settled legal position, as laid down in decisions such as Arif Khan v. State of Uttarakhand, reported in AIR 2018 SC 2123, Vijaysinh Chandubha Jadeja v. State of Gujrat, reported in AIR 2011 (i) SCC 609, and Bhaskar Kumar Karana v. State, reported in 2001 II OCR 113, mandates strict compliance of procedural safeguards under the NDPS Act. In the present case, such mandatory safeguards having not been adhered to, the conviction is vitiated, and the appellant is entitled to acquittal. 14. Per contra, Mr. Panigrahi, learned Additional Standing Counsel for the State has controverted the submission made by Mr. Mishra, learned Amicus Curiae and justified the impugned judgment. Page 12 of 19 15. This Court has carefully and meticulously gone through the evidence brought on record and have also taken into account the submissions made by both the parties. The first contention raised by Mr. Mishra, learned Amicus Curiae for the appellant regarding not offering the explanation concerning the safe custody of the seized contraband merits attention in view of the evidence of the I.O. (P.W.2) in the present case. In paragraph-5 of his evidence, P.W.2 has deposed as under:- “5. I arrested the accused and forwarded him in custody to court. I kept the seized Ganja in the official Malkhana. I made prayer to the Sessions Judge, Jeypore to send the sample Ganja packets for chemical examination on 2-9- 2000. As per order of the Sessions Judge the sample packets were sent to S.D.J.M., Jeypore, for sending the same to the Chemical Examiner. I sent the seized property to the Court on 1-9-2000 but it was not accepted as the court was closed. So I again sent the seized property to court on 2-9-2000 and it was received in Court Malkhana.” P.W.2 in his evidence has categorically stated that he had sent the seized property (ganja) to the Court on 01.09.2000, however, it was not accepted on the ground that the Court was closed on that date. He further deposed that on the following day, i.e., 02.09.2000, the seized ganja was produced before the Court and thereafter it was deposited in the Malkhana. However, this part of the evidence of the I.O. (P.W.2) is completely contrary to the record. The trial Court’s record clearly reveals that the proceedings in this case had commenced on 01.09.2000, which indicates that it was a working day. P.W.2 appeared before the Court but did not produce the seized contraband. The proceeding dated 01.09.2000 is relevant to be reproduced hereunder for convenience of ready reference:- “1. 01.09.2000:- The S.I. of Excise Jeypore has filed a seizure list and a formality report praying to remand the accused Bishnu Roula to jail custody as he is involved in an offence u/s. 20(b)(i) of NDPS Act. The accused Bishnu Roula, s/o Jaganath Roula vill. Phampuni PS. Jeypore Sadar, District- Koraput has produced by the S.I. of Excise, Jeypore Shri Rabi Prasad Patra. The accused complains of no ill-treatment by the S.I. of Excise while he was in the custody of S.I. of Excise. In this case P.R. has not submitted. Put up on 14.09.2000 for filing of P.R. Accused remained in custody to Sub –Jail, Jeypore till then.” 16. Therefore, the contention raised by Mr. Mishra, learned Amicus Curiae for the appellant regarding the non-deposit of the seized ganja in the Malkhana or non-production of the same before the Court below creates a serious doubt regarding the safe custody of the seized contraband. Secondly, the procedure adopted by the Investigating Agency for producing documents to establish the requisition of a Gazetted Officer appears to be highly questionable. This aspect has been dealt with by the learned trial Court in paragraph-15 of the impugned judgment, which reads as follows:- “15. On close scrutiny of the record, it is found, that there are two documents in this case which has been sent to this Court by the I.O. under his forwarding letter dated 30-10-2000. That forwarding letter speaks that he has enclosed copy of Mal challan, intimation regarding transportation of Ganja, to the higher authority. Order of Sub-Collector, regarding requisition of Executive Magistrate and copy of letter addressed to the Superintendent of Excise, Koraput, regarding detection of case. In fact the copy of the order of the Subdivisional Magistrate, Jeypore, ordering Sri. B.K. Mallick, Additional Tahasildar-cum- Executive Magistrate, Jeypore to remain present with Excise Staff on 31-09-2000 for excise raid is found to be enclosed to that letter and so also his letter of intimation to Inspector of Excise, Jeypore. The Xerox copies of these letters have been attested by Sub Inspector of Excise. It is also a fact that these material documents either have not been brought to the notice of P.W.2 while deposing in Court or P.W.2 has hastily given his evidence in Court without searching for these documents from the Court record with the assistance of the P.P., conducting the case. Since these copies of order have been received in this Court in official course of business, but my mistake either due to lack of sincerity and due to diligence on the part of the P.P. conducting the case or P.W.2, the Excise Sub Inspector, the I.O., while deposing before this Court could not discover these documents those should not be brushed aside and on the other hand should be made part of the evidence to appreciate the prosecution case. These documents belie the aforesaid submission of the learned defence counsel that neither there is due requisition to the Executive Magistrate by the Excise Sub Inspector nor there is official intimation regarding reliable information received by the Excise Sub- Inspector, to his higher authority. Therefore, these two documents are marked as Exts.5 and 6, in the interest of justice for proper appreciation of prosecution case.” 17. The procedures so adopted which has been appreciated by the learned trial Court is not known to the law. Hence, cannot sustain the scrutiny of establish procedure under law. Moreover, this Court in the case of Rukmini Pradhan and another vrs. State of Orissa in CRLA No.104 of 2003 by relying upon the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan vrs. Paramanand and Anr. reported in AIR 2014 SC 1384 has held that if the Magistrate or Gazetted Officer have accompanied the raiding party, then, in that case, compliance of Section 50 of the NDPS Act carries no value. This Court in paragraphs-9 and 10 in Rukmini (supra) has held as under:- “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 Punjab1 and State of Rajasthan vrs. Paramanand & Anr (supra), has unequivocally held that compliance of the procedural safeguard contemplated under Section 50 of the N.D.P.S. Act is mandatory in nature.” 18. Learned counsel for the parties have also drawn my attention to other evidence available on record. However, in the light of the glaring discrepancies highlighted in the preceding paragraphs, further deliberation in the present matter does not appear to be necessary. This is a case where the mandatory procedural safeguard contemplated under Section 50 of the NDPS Act has not been complied with, apart from other significant procedural impropriety committed by the Investigating Officer. Therefore, the only plausible conclusion that can be drawn from the prosecution evidence is that the appellant is entitled to the benefit of doubt. Hence, by extending the benefit of doubt, the appellant is acquitted of the charges under Section 20(b)(i) of the N.D.P.S. Act. The bail bond furnished by him stands discharged. Accordingly, the judgment and order dated 18.07.2003/08.08.2003 passed by the learned 1 (2014) 13 SCC 603 Sessions Judge-cum-Special Judge, Koraput at Jeypore in T.R. Case No. 80 of 2000 is set aside. 19. Accordingly, the CRLA is allowed and disposed of. 20. This Court acknowledges the effective and meaningful assistance rendered by Mr. Tukuna Kumar Mishra, 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. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 16th April, 2026/ Swarna