THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.64 of 2010 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Bijay Kumar Behera @ ……. Appellant Bijay Ram Behera -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Subrat Kumar Nayak-3, Advocate For the Respondent : Mr. A.K. Apat, AGA 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 present Criminal Appeal is directed against the judgment and order dated 18.01.2010 passed by the learned 1st Addl. Page 2 of 9 Special Judge-cum-1st Addl. Sessions Judge, Puri in T.R. Case No.2/3 of 2009, whereby the appellant was convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.20,000/-, in default, to undergo simple imprisonment for three months. 2. Heard Mr. Subrat Kumar Nayak-3, learned counsel for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State. 3. The prosecution case, in brief, is that on 09.01.2009 at about 11.45 A.M., P.W.3, the Sub-Inspector of Excise, while on patrol duty at Aandia Sahi under Nimapara Police Station, allegedly received reliable information that the present appellant was in illegal possession of contraband ganja in his house. It is alleged that the information was reduced to writing and was communicated to the superior authority. Thereafter, the Excise officials proceeded to the house of the appellant, conducted search in presence of witnesses and allegedly recovered 3.5 kilograms of ganja kept inside a cement bag under a cot in the house of the appellant. The seized contraband was weighed, sealed and seizure list was prepared at the spot. Subsequently, sample was collected in presence of the learned S.D.J.M. and was sent for chemical examination. On completion of investigation, prosecution report was submitted against the appellant for commission of offence under Section 20(b)(ii)(B) of the NDPS Act. 4. The plea of the defence was one of complete denial. The appellant denied recovery of any contraband from his possession and challenged the legality and authenticity of the alleged search and seizure. It was further contended that mandatory provisions of the NDPS Act had not been complied with and the prosecution story suffered from serious infirmities. 5. In order to establish its case, the prosecution examined three witnesses and proved several documents including the seizure list, zimanama, grounds of belief, chemical examination report and other connected papers. The defence did not adduce any evidence. Page 4 of 9 6. The learned trial court, upon appreciation of the evidence on record, came to hold that the prosecution had successfully established recovery of 3.5 kilograms of ganja from the conscious and exclusive possession of the appellant. The learned court below in para 7 of the impugned Judgement held that there was substantial compliance with the mandatory provisions of the NDPS Act and that the evidence of official witnesses could not be discarded merely because the independent witness had turned hostile. Accordingly, the appellant was convicted and sentenced as aforesaid. The concluding portion of the judgment is extracted herein below for ready reference:- “8. From the conspectus of evidence the Court arrives at an irresistible conclusion that the accused is guilty of the offence punishable under Section 20(b)(ii)(B) of the Act as the prosecution has proved and established the case beyond all reasonable doubt. As a necessary corollary the Court hold the accused guilty under Section 20(b)(ii) (B) of the Act and convict him thereunder.” Aggrieved by the Judgement of conviction and Order of sentence the appellant has filed the present appeal. Page 5 of 9 7. Learned counsel for the appellant assailed the judgment of conviction passed by the learned Addl. Special Judge-cum-Additional Sessions Judge, Puri, contending that the prosecution has failed to establish the charge under Section 20(b)(ii)(B) of the N.D.P.S. Act beyond all reasonable doubt. It was submitted that the alleged contraband was not recovered from the exclusive and conscious possession of the appellant, as the house from which the seizure was effected was admittedly a joint family house occupied by several family members. Therefore, the essential ingredient of conscious possession has not been conclusively proved. 8. It was further contended that there had been non-compliance with the mandatory provisions of Section 42 of the N.D.P.S. Act. Though the prosecution alleged receipt of prior information, no written intimation was sent to the superior officer within the prescribed period as required under Section 42(2) of the Act. Learned counsel submitted that even if the superior officer accompanied the raiding party, the statutory requirement could not be dispensed with. Reliance in this regard was placed upon State of Punjab v. Balbir Singh1. 9. Learned counsel also argued that the prosecution failed to establish safe custody of the seized sample. The evidence of P.W.3 clearly reveals that the sample remained in her office almirah for three days without any entry in the malkhana register, thereby creating a serious possibility of tampering. Such lapses, according to the appellant, vitiate the prosecution case. Reliance was placed upon the decisions in State of Rajasthan v. Gurmail Singh2and Bishnu Raula v. State of Orissa3. It was additionally submitted that the mandatory safeguards under Sections 50, 55 and 57 of the N.D.P.S. Act had not been duly complied with. The evidence of the prosecution witnesses, particularly P.W.2 and P.W.3, disclosed several inconsistencies and procedural irregularities relating to search, seizure, sealing and custody of the contraband articles. 1 1994 SCC (3) 299 2 AIR 2005 SC 1578 3 CRLA 198 of 2003 On such grounds, learned counsel prayed for acquittal of the appellant by extending the benefit of doubt. 10. In the alternative, learned counsel submitted that the occurrence pertains to the year 2009 and nearly sixteen years have elapsed since then. The appellant is presently aged about 62 years, has already undergone custody for about three months and thirteen days, and no other criminal antecedent has been reported against him. It was therefore urged that the sentence may suitably be reduced to the period already undergone. 11. The alternative submission made by the learned counsel for the petitioner, seeking reduction of the sentence to the period already undergone by the appellant, has not been opposed by the learned State Counsel. 12. This Court finds that the learned trial court has elaborately and appropriately dealt with the contentions advanced on behalf of the appellant, particularly in paragraph 7 of the impugned judgment. The evidence on record clearly establishes that seizure of the contraband article had in fact been effected and the prosecution case cannot be said to be unreliable merely on account of the procedural lapses pointed out by the defence. The alleged discrepancies and irregularities highlighted on behalf of the appellant have also been fairly considered and discussed by the learned trial court in the aforesaid paragraph-7, and this Court has not found any such lapses to be of such grave nature which vitiate the prosecution case in its entirety. 13. However, certain aspects relating to compliance with regards to preservation of the seized sample and maintenance of records do cast a somewhat tenebrous shadow over the manner in which the investigation was conducted. However, such irregularities are not sufficient to dislodge the prosecution case. 14. This Court also takes into consideration the fact that the occurrence is of the year 2009 and the appellant has faced the rigors of criminal litigation for a considerable length of time. The appellant is now about 62 years of age, is stated to be a first offender and has already undergone more than half of the substantive sentence imposed upon him. Page 9 of 9 15. Regard being had to the facts and circumstances of the case, this Court is of the considered view that the ends of justice would be adequately met if the substantive sentence imposed upon the appellant is reduced to the period already undergone by him in custody, but the fine of Rs.20,000/- (Rupees twenty thousand) shall remain unaltered. In default of payment of fine, the appellant shall undergo S.I. for a period of one month. Therefore, while the conviction of the appellant is sustained, the sentence is modified to the extent indicated above. 16. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd of May, 2026/Ashok MOHAPATRA