THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.131 of 2007 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Aruna Kumar Dash ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. B.S. Dasparida, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.05.2026 :: Date of Judgment: 22.05.2026 S.S. Mishra, J. The appellant, in this Criminal Appeal, has assailed the Judgment of conviction and order of sentence dated 26.02.2007 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Puri in T.R. Case No.5/1 of 2005, whereby the learned Court below, finding the appellant guilty of commission of the offence punishable under Section 20(b)(ii)(B) of the N.D.P.S. Act and sentenced him to undergo R.I. for five years and to pay a fine of Rs.30,000/- (Rupees thirty thousand), in default, to undergo R.I. for a further period of one year under Section 20(b)(ii) of the N.D.P.S. Act. 2. Heard Mr. B.S. DasParida, learned counsel appearing on behalf of the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel appearing on behalf of the Respondent-State. 3. The prosecution case in terse and brief is that on 04.12.2004, when the S.I. of Excise R.K. Praharaj along with his staff were performing patrolling duty at Chandanpur, they received information from reliable source that a person was travelling in a bus carrying ganja. Immediately, he intimated the said fact to his higher authority, who was the Inspector of Excise. Accordingly, they proceeded to the spot. At about 9 A.M., he found a person, who was the accused, getting down from the bus carrying a jari gunny bag on his shoulder. On suspicion, the police officers detained the said person. The accused, after disclosing his identity, expressed his intention to be searched. He also gave option to the accused whether he intends to be searched in presence of an Executive Magistrate or a Gazetted Officer to which the accused gave his option to be searched in presence of the Gazetted Officer, who was the Inspector of Excise present there. The S.I. of Excise searched the accused in presence of the Inspector of Excise and found 15 kgs. 200 grams of contraband ganja. Hence, the case. 4. On the basis of the aforementioned allegations, the F.I.R. was registered against the appellant and investigation was carried out. Thereafter, upon submission of the report under Section 173 of the Cr.P.C., and on the stance of denial of charges, the accused was put to trial. 5. In order to substantiate the charge, the prosecution has examined as many as three witnesses, out of whom P.W.3 was the S.I. of Excise, who received the reliable information. P.W.1 was the Inspector of Excise and P.W.2 was the A.S.I. of Excise, who were present at the time of search and seizure. No evidence was adduced on behalf of the defence. 6. The learned trial Court has given the findings, which reads thus: “Thus from the mandates of the decision that evidence of official witnesses cannot simply be discarded and in order to avoid any amount of foul play of false implication, strict scrutiny and independent corroboration has been insisted upon. In the instant case, no doubt P.W.3 picked upon the conductor of the bus from where the accused alighted and thus in the sense was declined his examination in Court, is citing the conductor of the bus as a witness, P.W.3 has maintained transparency in conducting search and seizure. Nothing has been elicited from the evidence of these witnesses to raise any suspicion or doubt about the search and seizure. 14. So far as performance of duty of P.W.3 is concerned, P.W.1, who is the higher authority, in the cross-examination, has stated that P.W.3 was on mobile duty, which can be ascertained from the daily diary maintained in the office. Copy of such diary is being furnished to the Superintendent of Excise once in a week. P.W.3 himself has stated that he maintained diary showing his performance of duty as per the Excise Manual. Even though copy of the said diary has not been furnished, when P.W.1, the higher authority of P.W.3 has deposed about his performance of his patrol duty, there is nothing to disbelieve him and no advantage can be given to the accused for non-production of the diary. 15. So far as the despatch of sample packet to State Drugs Research Laboratory, Bhubaneswar is concerned, the evidence of P.W.3 shows that he sent the sample through constable Subash Chandra Mohapatra and receipt of the same has been duly acknowledged by the Chemical Examiner vide receipt Ext.7. In para-11 of the cross-examination, it is elicited that the said constable was deputed on the strength of the command certificate, issued by him, though command certificate is available in the office, he has not seized the same. Such lacuna in the prosecution case also is of no help to the accused when receipt of the sealed packet has been acknowledged by the Chemical Examiner, who found the seal to be intact. Thus, from the evidence of the witnesses, as discussed above, it is abundantly clear that on 4-12-04 while P.W.3 along with his staff were performing duty, detected the accused, who was found in possession of the narcotic ganja and the oral evidence of P.Ws.1, 2 and 3 with regard to the recovery of the ganja find support from the report of the Chemical Examiner (Ext.8) from which it appears that on examination he found the sample to be ganja (cannabis) as described u/s. 2(iii) (b) of the N.D.P.S. Act. P.W.3 has complied all the mandatory provisions of the N.D.P.S. Act. Thus, P.Ws.1 to 3 are found to be reliable witnesses and simply because they are official witnesses, their evidence cannot be discarded, who have stood the cross-examination well. 16. Accordingly, the prosecution case is proved beyond all reasonable doubt that the accused was found to be in possession of ganja (Cannabis) and thus he is found guilty of the offence under Section 20(b)(ii)(B) of the N.D.P.S. Act and is convicted thereunder.” 7. Being aggrieved by the aforementioned findings of the learned trial Court which culminated into conviction and sentence, the appellant has filed the present appeal challenging the same on various grounds. 8. Learned counsel for the appellant has submitted that in the present case, only three witnesses have been examined. Reading of the evidence of P.W.1, the Inspector of Excise, who had searched and seized the contraband, would make the case of the appellant very clear that, in the present case, there was a clear non-compliance of the mandatory safe- guard provided under Section 50 of the N.D.P.S. Act. He has drawn the attention of this Court to paragraph-2 of the evidence of the said witness, which reads thus: “2. Thereafter, we concealed ourselves near the bus-stand and after sometime we found a person getting down from the bus and coming with a jari bag and the SI of Excise detained him out of suspicion. Thereafter the SI of Excise after disclosing his identity, asked the said person that he is suspected to be carrying ganja and gave him option if he intends to be searched in presence of an Executive Magistrate or a Gazetted Officer, who is the Inspector of Excise present there. Thereafter the said person, who is the accused, gave in writing expressing that he intends to be searched in presence of the Inspector of Excise.” 9. Learned counsel for the appellant submitted that the Officer, who conducted the search, has adopted a procedure which is directly contravening the rigors contemplated under Section 50 of the N.D.P.S. Act. The accused had to be appraised of his legal right to be searched either before the Executive Magistrate or the Gazetted Officer. There can’t be a third option to be searched before the Police Officer given straight away jumping the first two options. Thus, the consent obtained from the accused was not in conformity with Section 50 of the N.D.P.S. Act. The act of the I.O. providing the third option namely, the search of the accused in presence of the Police Officer was clearly contrary to the procedural safeguard provided in the provision of Section 50 of the Act. 10. Mr. Sobhan Panigrahi, learned Additional Standing Counsel appearing for the State, on the other hand, submitted that the entire evidence brought on record by the prosecution needs to be read in conjunction and in unison. The case of the prosecution cannot be viewed by simply reading of a particular portion of the evidence of one witness. Learned counsel for the State further submitted that, if the entire oral evidence is read in juxtapose with the documentary evidence, no fault could be found from the findings recorded by the learned trial Court. 11. This Court has perused the entire evidence brought on record and also analysed the submissions made by learned counsel appearing for both the parties vis-à-vis the findings recorded by the learned trial Court. The submission made by learned counsel for the appellant has force in view of the settled position of law regarding the requirement of the statutory compliance under Section 50 of the Act as has been decided in the case of The State of Himachal Pradesh vs. Surat Singh1. The evidence of P.W.1 makes it abundantly clear that the procedure contemplated under Section 50 of the N.D.P.S. Act has not been complied with to its letter and spirit. It is also abundantly clear that the 1 2026 INSC 240 Inspector of Excise who himself is claiming to be the Gazetted Officer, has given the option to the accused-appellant for his search. 12. This Court, in the case of Rukmini Pradhan and another V. State of Orissa2 has categorically held that where a Gazetted Officer accompanies the raiding party and remains associated with the search and seizure operation, such officer cannot be treated as an independent Gazetted Officer within the meaning of Section 50 of the N.D.P.S. Act. The object underlying Section 50 is to ensure fairness, transparency and protection against false implication by affording the accused an opportunity to be searched before an independent and impartial authority. Therefore, the presence of a Gazetted Officer who is already a member of the raiding team, does not satisfy the mandatory safeguard contemplated under the statute. The relevant observations are extracted hereinbelow: “9. From the testimony of P.W.9, this has become clear that he has not only accompanied with the raiding party but 2 CRLA No.104 of 2003 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 Punjab 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.” 13. In the present case as well, the alleged Gazetted Officer was admittedly accompanying the raiding party and remained an integral part of the search operation. Such participation clearly destroys the element of independence required under Section 50 of the N.D.P.S. Act. The so- called compliance, therefore, becomes illusory and contrary to the settled position of law laid down by the Hon’ble Supreme Court as well as this Court. Since the mandatory procedural safeguard under Section 50 has not been adhered to in its true spirit, the entire search and seizure stands vitiated, rendering the conviction and sentence of the appellant unsustainable in the eye of law. Page 11 of 11 14. In view of the aforementioned reason, the impugned judgment of conviction and the order of sentence dated 26.02.2007 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Puri in T.R. Case No.5/1 of 2005 is liable to be set aside and the appellant is entitled for acquittal of all the charges, as the prosecution failed to prove its case beyond all reasonable doubt. 15. The appellant is acquitted from all the charges and the bail bond stands discharged. 16. The Criminal Appeal stands allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 22nd of May 2026, Subhasis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 25-May-2026 20:33:05