Orissa High Court

Ghanashyam Palei vs State Of Orissa on 19 August, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.68 of 1996

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)


Ghanashyam Palei                      .......                   Appellant

                                 -Versus-

State of Orissa                       .......                 Respondent

For the Appellant : Ms. Upashikha Samantray along with Mr. Mohammad Faradish, Advocates

For the Respondent : Ms. Suvalaxmi Devi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 29.07.2025 :: Date of Judgment: 19.08.2025

S.S. Mishra, J. The present Criminal Appeal, is filed by the appellant

under Sections 374 (2) of the Cr. P.C., assailing the judgment of

conviction and order of sentence dated 24.02.1996 passed by the learned

Additional Sessions Judge, Bhubaneswar in Sessions Trial No. 18/2016 of 1993, whereby the learned trial Court has convicted the accused-

appellant-Ghanashyam Palei under Section 20(b) (ii) of the N.D.P.S. Act

and in lieu of the said conviction, he was sentenced to undergo R.I. for

two years and to pay a fine of Rs.2000/-, in default, to undergo further

R.I. of six months.

After conviction, the appellant filed the present appeal on

07.03.1996. Since he was in custody, he moved an application for grant

of bail before this Court, which was decided on 24.04.1996. This Court

while recording the fact that the appellant has already remained in

custody for a substantial period during and after the trial, had admitted

him to bail. Since then, the appeal has been pending before this Court.

2. The prosecution case, in nutshell, is that on 16.02.1990 at around

12 to 12.30 P.M., the S.I. of Excise Intelligence Branch, Bhubaneswar

(P.W.3) along with his A.S.I. (P.W.2) and Constable (P.W.1), proceeded

towards Old Town, Bhubaneswar on patrolling duty. While patrolling in

that area, they found at Kedargouri Chhak, the present appellant was

proceeding towards Bindusagar carrying a hand bag. On suspicion,

P.W.3 detained the accused and procured attendance of two witnesses

who were passing by that way and expressed his intention to take search

of the accused. After giving personal search of himself and that of the

accompanying excise officials, P.W.3 conducted the search and

recovered that hand bag from the possession of the accused. The said bag

was opened and Ganja in a polythene packet was found inside. On

weighment the recovered ganja was found to be 3 K.G. As the accused

could not show any authority for possession of ganja, P.W.3 seized the

recovered ganja as well as the hand bag. Thereafter, the accused was

arrested and on the basis of the aforesaid allegation, Bhubaneswar E.I.S.

Charge P.R. NO.98/89-90 was registered, which corresponds to 2 (a)

C.C. Case No. 52 of 1990.

3. Heard Ms. Upashikha Samantray appearing along with Mr.

Mohammad Faradish, learned counsel for the appellant and Ms.

Suvalaxmi Devi, learned Addl. Standing Counsel for the State.

4. The appellant was charged for the offence punishable under

Section 20 (b) (ii) of the N.D.P.S. Act and on his stand of denial and

claim of trial, he was put to trial.

5. The prosecution examined only three witnesses. All the three

witnesses are the official witnesses. P.W. 3 was the S.I. of Excise, who

has made the recovery and seizure, P.Ws.1 and 2 were the Excise

Officers, who were in the patrolling duty and accompanied with P.W.3.

The defence in order to establish its case has also examined one witness.

The said witness though was cited by the prosecution, but the

prosecution failed to examine him, rather the appellant-accused has

examined him on his defence.

6. The trial court after analyzing the evidence of the three witnesses

came to the following conclusions

"19. As regards the authority of P.W.3 to make the search, seizure, arrest, investigation etc. under the Act, he has stated to have been generally authorized by the State Government under Section 42/67 and under Section 53 of the Act. He has also proved the Xerox copies of the Notification under Sections 42/67 of the Act as Ext.4 and Notification under Section 53 of the Act as Ext.5. Under these two notifications the officers of and above the rank of Sub-Inspector of Excise have been empowered to perform the duties under Sections 42/67 of the Act and have been invested with the powers of an officer in-charge of a police Station for the investigation of the offences under the Act.

20. To sum up it is now clearly established that P.W.3 was a duly empowered officer under the Act, that while

performing duty under normal course he had conducted search of the accused observing the formalities of search required under the provisions of the Cr.P.C., that on such search there was chance recovery of Ganja, from possession of the accused and that the defence plea of false implication of the accused is not believable and acceptable. Therefore, I hold that the prosecution has succeeded to bring home the charge to the accused beyond all reasonable doubt."

7. Aggrieved by the aforementioned findings recorded by the learned

trial court, the sole appellant has filed the present appeal.

8. Ms. Upashikha Samantray, learned counsel appearing along with

Mr. Mohammad Faradish, learned counsel for the appellant submitted

that the appellant has assailed the order of conviction and sentence

mainly on the ground of non-compliance of the requirements of Sections,

42, 50, 52 and 57 of the Act. It is noticed from the judgment under

challenge that the contention raised by the appellant has been dealt with

adequately by the trial court. In so far the non-compliance of Section 50

of the NDPS Act is concerned, the trial court in paragraph-15 has dealt

with the contention and recorded the following findings:-

"15. From the side of the defence it was suggested to P.W. 3 and it was also contended by the learned counsel for the

defence that the relevant provisions of the Act were not complied with. The learned counsel for the defence mainly referred to Section 50 of the Act. That Section requires that when the authorised officer is about to search a person he shall take such person to the nearest Gazetted officer of the departments mentioned in Section 42 or to the nearest Magistrate if such person as requires. In this context the learned counsel invites my attention to the principles laid down by the apex Court in State of Punjab... Vrs... Balbir Singh and others: (1994) 7 C.C.R. (S.C.) 283, in which it has been laid down that before the search of a person is made such person should be informed that if he do requires he shall be produced before a Gazetted Officer or a Magistrate as provided under Section 50 and that it is obligatory on the part of such Officer to inform the person to be searched about such right and non-compliance thereof would vitiate the trial. In the instant case p.w. 3 stated in cross-examination that before making the search he had given such option to the accused, but stated that he has not mentioned this fact in the prosecution report. So the learned counsel for the defence placed reliance in the case of Ajaya Kumar Naik.... Vrs.... State of Orissa(supra) in which the I.0. had stated to have given such option to the accused but his evidence on that score was not believed since he admitted not to have mentioned this fact in the case diary.

15. In the above context it may be mentioned that the case at hand did not require compliance with Section 50 of the Act. Because, it is not the case of the prosecution nor evidence of the P.Ws. that on receipt of any prior information regarding commission of an offence under the Act the search was made. The prosecution case and evidence of the P.Ws. go to show that while patrolling in normal course for detection of offences committed under the B&O Excise Act, for which an Excise Officer is empowered under that Act, the P.W.3 conducted the search on suspicion and on such search the Ganja was

recovered. So it is a case of chance recovery of the contraband. In Balbir Singh's case (supra) it has been laid down that if the authorized officer without any prior information makes search in normal course of investigation into an offence or suspected offence and when such search is completed, at that stage section 50 of the Act would not be attracted and the question of complying with the requirements there under would not arise and that if during such search there is a chance recover of any narcotic drugs or psychotropie substance, then from that stage onwards the empowered officer should carry out the investigation in accordance with the other provisions of the Act. In view of this ruling and as in the instant case the search was made not on any prior information but merely on suspicion and there was chance recover of the Ganja, there was no necessity for compliance with the provisions of Section 50 of the Act and for failure to comply with that provision the trial would not vitiate. Thus the contention of the defence on this score does not hold good."

9. The learned trial Court essentially arrived at a finding that Section

50 has been complied with, as P.W.3 in his cross examination, has stated

that before the search was conducted, it was informed to the accused as

to whether he was required to produce before the Magistrate for the

purpose of search, to which the accused has declined. Therefore, the

learned trial court concluded that the provisions of Section 50 of the

NDPS Act, has been complied with. While dealing with the contention

of the appellant-accused regarding the non-compliance of the provisions

of Section 57, the trial court recorded the following findings:-

"16. Another point raised by the learned counsel for the defence was that the specimen seal was not produced before the Magistrate or which a reasonable doubt must be entertained that what was seized was not the very article sent for chemical examination. In this case the evidence of the P.Ws is that the seized Ganja and the sample Ganja were sealed at the spot by means of paper seals containing signature of witnesses and accused and it is the evidences of P.W.3 that he himself had sent the sample packet to the State Drugs Testing laboratory for chemical examination since he is empowered to send the same for chemical examination during investigation. His ascertain that he is to empowered or authorized has not been challenged by the defence. Thus, when the articles were not sealed by means of any brass seal, the question of producing the specimen seal before the Magistrate does not arise."

17. Of course there was some delay in sending the sample for chemical examination. The seizure was made on 16.02.90 and P.W.3 has stated to have sent the sample to the Laboratory on 5-3-90. During the intervening period of course the sample Ganja packet was in the Malkhana of his office and he was in charge of that Malkhana. So it was contended from the side of the defence that as the sample packet was in the custody of P.W.3, the possibility of tampering cannot be ruled out. But the chemical examination report vide Ext.3 shows that when the packet was received in the laboratory the seal thereon was found to be intact. The defence has nowhere suggested to P.W.3 that what was seized was not the very article sent for chemical examination. In the premises, it is difficult to accept the above contention of the defence."

10. It is apparently clear from the evidence of P.W.3 that the seizure

was affected in presence of the independent witness and the sample was

drawn and it was kept in a polythene packet and affixed a paper seal on

the same. Since there was no brass-seal affixed to the sample packet

containing sample and seizure articles at the time of production of the

said articles before the Magistrate, the paper seal, which was affixed was

completely damaged, which related to non-production of the seal claims

to be affixed in the packet before the Magistrate. This part of the

evidence is eminently come on record by the evidence of P.W.3. This

also presumes importance because in the present case none of the

independent witnesses could be examined by the prosecution. The

prosecution is only harping upon the official witnesses particularly the

evidence of P.W.3. The learned counsel for the appellant has relied upon

the judgment of this Court reported in (2019) 75 OCR 761 (Manoj

Kumar Panigrahi vrs. State of Orissa) to substantiate the case regarding

the repercussion of non-compliance of Section 57 of the NDPS Act. She

has pointed out paragraph-14 of the judgment, which reads as under:-

"14. In the present case, when the independent witness has not supported the prosecution case, the version of the two official witnesses like P.W.2 and P.W.3 are contradictory to each other and the version of P.W.3 who is an important witness for the prosecution is full of ambiguities, the brass seal stated to have been given in the zima of P.W.2 or the specimen seal impression was not produced before the Court at the time of production of the seized articles, the provisions under Section 57 of the N.D.P.S. Act has not been complied with an moreover when P.W.3 being the officer who not only carried out the search and seizure but also conducted the investigation and submitted the prosecution report, I am of the humble view that it cannot be said that the prosecution has successfully established the charge under Section 20 (b)

(ii) (C) of the N.D.P.S. Act beyond all reasonable doubt against the appellant and therefore, the impugned judgment and the order of conviction cannot be sustained in the eye of law.

Accordingly, the Criminal Appeal is allowed. The impugned judgment and order of conviction passed by the learned Trial Court in convicting the appellant under Section 20 (b) (ii) (C) of the N.D.P.S. Act and the passing the sentence thereunder is hereby set aside. The appellant is acquitted of such charge and he be set at liberty forthwith, if his detention is not required in any other case."

Learned counsel for the appellant has also relied upon another

judgment of this Court reported in 83 (1997) CLT 257 in the case of

Jayakrushna Parida Vrs. The State of Orissa.

11. Conjoint reading of the evidence of P.W.3 and the documentary

evidence in the light of the judgment cited at the Bar, it is abundantly

clear that the mandatory compliance of Section 57 of the NDPS Act on

the part of the prosecution seems to be clearly doubtful. Learned counsel

appearing for the State has also not able to dispute the factual position

emanating from the evidence on record.

12. It is relevant to mention that the independent witnesses in whose

presence the seizure claimed had been effected; were not examined by

the prosecution. On the contrary, one of the witnesses, namely, Kailash

was examined by the defence, as D.W.1. The learned trial Court refused

to rely upon the testimony of D.W.1 on the ground that despite efforts

made by the prosecution, it could not secure the presence of the said

witness. However, the defence could produce the said witness on his

defence. Therefore, the evidence is conveniently ignored. Paragraph-13

of the impugned judgment reflects the same, which reads thus:-

"13. This D.W.1 has been named as a witness to the search and seizure in the prosecution report and seizure list. It is quite strange that even though the prosecution could not be able to secure his attendance for want of his

present where-about, the defence could able to secure his attendance within a day. The defence took the summons from the court on 12-2-96 and brought this witnesses on the following day. He as well as the accused are residents of Kodala P.S. area within the district of Ganjam. The evidence of his witness is that on 12-2-96 the father of the accused delivered the summons to him in his village and so he came to the court for his evidence. If the father of the accused served the summons on the witnesses, in normal course he or any other person in whose presence the summons was served would have given endorsement to that effect identifying the L.T.I. of the summons on the S.R. But it is found that there is only one L.T.I. on the S.R. which has been identified to be that of this witness by the defence lawyer. From these circumstances it appears to me that the evidence of D.W.1 that the summons was served on him in his village is not true but his attendance was procured by the defence from his present place of abode at Bhubaneswar for the purpose of support the defence. In the premises, the suggestion of the prosecution to this witnesses that at the instance of the father of the accused he came forward to depose falsehood to save the accused from punishment cannot be entirely ruled out. Anyway, this D.W.1 does not appear to me to be a truthful witness and hence I am not prepared to accept his evidence that without seeing the search, recovery and seizure he had simply given his L.T.I. on the seizure list."

13. Taking into consideration the entire conspectus of the case and the

evidence on record, I have no hesitation to arrive at the conclusion that

the defence could successfully create a dent in the prosecution story by

bringing the element of doubt in the evidences of the prosecution.

Therefore, the appellant is entitled to be acquitted on the ground that the

prosecution could not prove the case beyond all reasonable doubt.

14. Accordingly, the Criminal Appeal is allowed.

15. The Appellant stands acquitted of all the charges. The bail bond

furnished by him stands discharged.

(S.S. Mishra) Judge The High Court of Orissa, Cuttack.

Dated the 19th August 2025/ Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA