Harihar Nayak vs State Of Orissa
2025 Latest Caselaw 10815 Ori

Orissa High Court

Harihar Nayak vs State Of Orissa on 9 December, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No. 135 of 1999

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


Harihar Nayak                   .......                       Appellant

                               -Versus-

State of Orissa                  .......                      Respondent

For the Appellant : Ms. Ayushi Mehta, Advocate

For the Respondent : Mr. R.B. Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 16.10.2025 :: Date of Judgment: 09.12.2025

S.S. Mishra, J. The sole appellant-Harihar Nayak has assailed the

judgment of conviction and order of sentence dated 29.04.1999 passed

by the learned 2nd Addl. Sessions Judge, Berhampur in S.C. No.

15/1998(N) [S.C. No. 45/95 (GDC) (N)] convicting him under Section

20(b)(i) of the NDPS Act and in lieu of that he has been sentenced to

undergo R.I. for two years and to pay a fine of Rs.10,000/-, in default of

payment of fine to undergo R.I. for six months.

2. Heard Ms. Ayushi Mehta, learned counsel for the appellant and

Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the

State.

3. The prosecution story in the present case narrates that on

29.07.1995, P.W.6, the then OIC of Jarada police station along with ASI

of Police of Khariaguda (P.W.2), and S. N. Rao (P.W. 3) were

performing patrol duty at Surangi and when they were returning from

Surangi to Khariaguda near Talapada bus stop, they received

information that one person was carrying ganja in a plastic bag. While

proceeding, they found one person was coming from their opposite

direction carrying one bag. He detained the person and asked for his

identity and he stated that his name was Harihar Nayak, son of

Raghunath Nayak of Marjadapur, P.S., Dharmasala, Dist. Jajpur and he

also disclosed that he had gone to village Tikarpada as said village

Tikarpada is famous for narcotic ganja dealing. Then P.W. 6 suspected

and asked to know the contents of the bag which he was holding and he

stated that he (accused) had kept some quantity of ganja inside the bag,

but he did not disclose the name of the person from whom he brought

the ganja and he could not show any authority for possession of the

ganja. Then he asked the accused whether he will be searched before

any Gazetted Officer or before a Magistrate and accused agreed P.W.6

to be searched by him. Then he gave such request in writing in his own

hand vide Ext. 2. Then P.W.6 directed the ASI and constable to bring

the sealing materials and weighing balance and they returned with those

articles. The witnesses Bhagia Pradhan and Babula Pradhan also came.

Then P.W.6 and his staff gave their personal search to the accused in

presence of witnesses. Thereafter, he searched the plastic bag containing

ganja flowering and fruiting top, which was covered by a polythene

pack. On weighment the said ganja came to 5 Kgs. Then he seized the

ganja in presence of the witnesses at the spot vide seizure list Ext. 1/1

and the accused and in token of receipt of the 100 grams of ganja

towards sample and sealed separately the bag and the sample ganja by

putting his personal seal. Then he drew up plain paper FIR marked Ext.

3, sent the report to the OIC, Jarada PS for registration through the

constable.

4. On the basis of the aforementioned allegations, police registered

the case and investigation was conducted. Charge sheet was filed

against the appellant and on appellant's stance of complete denial and

claim for trial, he was put to trial after the charges were framed.

5. To establish the charges, the prosecution examined seven

witnesses, out of them P.W.6 was the OIC of the Jarada Police Station,

who along with P.Ws.2 and 3 were performing patrol duty on

29.07.1995; P.Ws.2 and 3 were the Constables, those who were present

at the time of seizure of ganja from the accused; P.W.4 was the ASI of

Police, Khariaguda police Out Post and also a witness to the seizure;

P.Ws.1 and 7 were two independent witnesses.

6. The appellant, while taking a stance of complete denial and false

implication, contended that one Runanath Nath allegedly influenced the

police to implicate him in the false case, as that Runanath Nath had

enmity with him. To substantiate the said stand, he had examined one

defence witness as well. The learned trial court dealt with the said plea

and declined to accept the same in view of the unimpeached testimony

of the prosecution witness. The learned trial court dealt the defence plea

in paragraph-7 of the judgment, which reads as under:-

"7 The accused has taken the specific plea by way of giving suggestion to p.w.6 that p.w. 6 invited the accused to police station to be a witness in some other case and took the signatures of the accused and manipulated the documents to be the accused in this case at the instance of Kunananda Nath. P.W.6 has stated that on suspicion he asked the accused to know the contents of the bag which he held. On question he told that he had few quantity of ganja inside the bag, but did not disclose the name of the person from whom he brought the ganja and could not show any authority for

possession of ganja. So, p.w. 6 asked the accused whether he would be searched before a Gazetted Officer or before a Magistrate, the accused requested him to search by him and gave such request in writing in his own hand. Ext. 2 is his writing document giving consent for search and Ext. 2/1 is the signature of the accused, In the statement u/s 313 Cr.P.C the accused has explained Ext. 2/1 is his signature, but Ext. 2 is not in his handwriting. Accused has also signed in the statement recorded u/s 313 Cr.P.C. Hence, Ext. 2/1 and all the signatures of accused in statement u/s 313, CrP.C are admitted signatures of the accused and written in his own hand. Perused Ext. 2. In the first line of Ext. 2 it is written MU SRI HARIHAR ΝΑΙΚ(IN ORIYA). I compared the writing of the first line of Ext. 2 Harihar Nayak with Ext. 2/1 and other signatures of the accused in the statement and each letter of Sri Harihar Naik written in Oriya in the first line of Ext. 2 tallies with each letter of the signature given by the accused which is marked Ext. 2/1 as well as it tallies with the signature of the accused given in the statement recorded u/s313 Cr.P.C. Again in the beginning of 2nd line of Ext. 2 'Naik' written in Oriya also tallies with the words "Naik' written in oriya in Ext.2/1. Hence, to the naked eye it appears that the person who signed as Harihar Naik has written Ext. 2. The accused also admits in his statement recorded u/s 313 Cr. P.C that Ext 1/3 is his signature in the seizure list Ext.1/1. Every letter of Ext. 1/3 also tallies with the letter mentioned in the first line of Ext.2 as Harihar Naik. Hence, I have no hesitation to accept the evidence of p.w. 6 that Ext. 2 is the handwriting of the accused who gave the same in his own hand and above said proof that Ext. 2 is written by the accused has destroyed the plea of the accused that p.w.6 invited the accused to the police station and took his signatures and created documents. P.W.6 is a responsible Govt. Officer and there is no suggestion on behalf of the accused that prior to the occurrence P.W. 6 has or had any type of hostile relationship with the accused. Only he has given suggestion that at the instance of Kunananda Nath, a false case is filed against him. When Ext. 2 is proved as the handwriting of the accused, it clearly falsifies the plea of the accused that P.W.6 by taking signatures of the accused has manufactured documents of the case."

7. Ms. Ayushi Mehta, learned counsel for the appellant has taken me

to the evidence of P.Ws.2, 3, 4 and 5. She submitted that P.W.2, who is

one of the constables, accompanied the team of the police while

apprehending the accused deposed that on 28.07.1995 he along with

other police officials went in a jeep on patrol duty. At about 2.00 A.M.

they found the accused carrying a bag. He further deposed that the bag

was searched by the OIC. The bag contained ganja in jerry packet. The

ganja was taken to a nearby vegetable shopkeeper Bhagia Pradhan and

on search it was found to be 1.00 kg. Out of the same, 100 gm. was

collected separately as a sample, whereas P.Ws.3 and 5 have stated that

after apprehending the accused, the bag was seized and it was taken to

Talapada village for searching by the ASI and on weighing the same, it

was found the bag containing 5.00 kg. ganja and out of which the

sample was drawn. However, P.W.4, who was a driver accompanied

with the police team deposed that all the seized articles were taken to

the police station and searched there. By pointing this part of the

contradictions, Ms. Mehta submitted that not only the seizure of ganja is

doubtful but also the place where the weighment was done is also

doubtful as three different versions are emanating from the evidence of

P.Ws. 2, 3 and 5. She has also pointed out various contradictions by

reading the evidence of all the seven witnesses and submitted that the

entire evidence of the prosecution is riddled with un-explainable

contradiction which creates a serious doubt on the prosecution version.

8. The learned trial court dealt with the said contradictions which

are pointed out by the learned counsel for the appellant. In paragraph-18

of the judgment, the learned trial court analysed the contradictions and

arrived at the following findings:-

"18. Although there are minor contradictions in the evidence of p.ws. 2.3,4,5 and 6 regarding the place from which the accused fled away, regarding weighment, but I do not find any material contradiction in the evidence of above said witnesses. All the witnesses have categorically stated that while they were returning from patrol duty they found the accused coming with a bag(plastic bag) containing some articles and suspecting him, he was detained by P.W.6 and witnesses and on enquiry he stated that he had kept some ganja in the above said bag and he has also given one written consent to p.w.6 that he would be searched by p.w.6. Then p.w.6 and his staff gave personal search to the accused. Then they searched the bag and found some ganja inside the bag and on weighment it came to 5 Kgs. Then p.w.6 seized the above said bag with ganja from the exclusive possession of the accused and accused could not produce any authority for possession of the same. He prepared the seizure list marked Ext. 1/1 and gave copy of the seizure list to the accused and in token of receipt of the same the accused signed on the seizure list and Ext. 1/3 is signature of the accused. M.O.I is the said bag proved through P.W.6, but the paper slip on the said bag was removed and some ganja was inside the torn bag in damaged condition."

9. Ms. Mehta, learned counsel for the appellant further submitted

that in the present case the statutory safeguard under Sections 42, 50

and 55 of NDPS Act has not been complied with in its letter and spirit.

In that regard, she has also flagged the evidence of the witnesses.

10. To counter the contention raised by Ms. Mehta, Mr. R.B. Dash,

learned counsel for the State has submitted that the evidence on record

clearly establishes substantial compliance of Section 50 of the NDPS

Act, as the written consent of the accused to be searched by the I.O. was

obtained prior to the search. It is settled law that when an accused gives

written consent to be searched by the same officer, the mandatory

requirement of Section stands duly satisfied. Further, the prosecution

has successfully proved compliance with Section 55 of the Act. The

evidence of the I.O. corroborated by documentary exhibits, which

shows that the seized articles and sample packets were kept in safe

custody, produced before the learned Magistrate, duly resealed and

forwarded to the chemical examiner without any tampering. Therefore,

the chain of custody remained intact throughout. He further submitted

that the contention of the appellant that the alleged discrepancies in

weighment or documents vitiate the prosecution case, is without merit

because such minor inconsistencies do not affect the core of the

prosecution evidence, which is consistent, cogent and credible. Further,

the plea that there was non-compliance of Sections 42, 50 and 55 of the

NDPS Act has no basis, as the prosecution has satisfactorily established

substantial compliance with all statutory requirements. Mr. Dash,

further submitted that the learned trial court after evaluating the entire

evidence on record has rightly held that the appellant was found in

conscious possession of 5.00 kg. of ganja without any authority or

licence. The seizure list, the written consent and the chemical

examiner's report fully corroborate the prosecution version. Therefore,

the defence plea was found to be an afterthought and not supported by

any material evidence. Hence, the learned trial court has rightly

convicted the appellant under Section 20 (b)(i) of the NDPS Act.

11. I have carefully gone through the evidence of all the prosecution

witnesses adduced in the present case and analysed the submissions

made by both the counsels at the Bar. The contradictions pointed out by

Ms. Mehta, learned counsel for the appellant has been rightly dealt with

by the learned trial court in paragraph-18, which has been reproduced

above. Since the contradictions are minor in nature, which are not

substantial, the same could be ignored in the light of the un-equivocal

evidence of all the witnesses regarding the substratum of allegation

made by the prosecution. In so far as non-compliance of Sections 50

and 55 of the NDPS Act is concerned, I too have examined that aspect

of the matter. The I.O. has informed the accused about his right under

Section 50 of the NDPS Act to be searched in presence of a Magistrate

or a Gazetted Officer. The accused, however, gave his written consent

by Ext.2 to be searched by the I.O. himself. Therefore, the I.O. in

presence of P.Ws.1 and 7, the two independent witnesses, has carried

out the search and seizure. Although, P.Ws.1 and 7 have not supported

the case of the prosecution but they have identified their signature

appearing in the Ext.1, the seizure list. Therefore, the I.O. has complied

Section 50 of the NDPS Act read with Section 100 of the Cr.P.C.

12. In view of the aforementioned, I have no reason to disagree with

the conclusion drawn by the learned trial court on right appreciation of

the evidences of the prosecution. Therefore, the inevitable conclusion is

that the learned trial court has rightly found the accused guilty of the

offence under Section 20(b)(i) of the NDPS Act. Accordingly, the

conviction recorded by the learned trial court is affirmed.

13. At this stage, Ms. Mehta, learned counsel for the appellant by

taking me to the proceeding of this Court dated 28.06.1999 has

submitted that the appellant indeed has already undergone one year and

two months of custody. The proceeding referred to above reads as

under:-

"Misc. Case Nos.160 and 161 of 1999

28.06.1999- Heard. The appellant-petitioner being found guilty under section 20(b) of the N.D.P.S. Act has been sentenced to undergo R.I. for two years and to pay a fine of Rs.10,000/-, in default to undergo R.I. for six months more. It is borne out from the impugned judgment that petitioner surrendered before the court on 29th April, 1998 and Shri D. Panda submits that since then the petitioner is languishing behind the bar. In the meantime more than one year has elapsed. Taking note of the period of detention, I am inclined to admit the petitioner to bail. Hence ordered:

The petitioner be released on his furnishing bond of Rs.20,000/- (rupees twenty thousand) with two sureties each for the like amount to the satisfaction of the Second Additional Sessions Judge, Berhampur, in S.C. Case No.15/1998 (N)[S.C. Case No.45/1995 (GDC) (N)].

Stay realization of fine.

Misc. Cases are disposed of.

Urgent certified copy of this order be granted on proper application."

14. In view of the period the appellant has already undergone and the

fact that the incident relates back to the year 1995, Ms. Mehta submitted

that a lenient view should be taken because at the time of incident the

appellant was 28 years of age and at present he is aged about 58 years.

She further submitted that, over the years, he has led a dignified life,

integrated well into society and is presently leading a settled family life.

Incarcerating him after such a long delay, it is argued, would serve little

penological purpose and may in fact be counter-productive, casting a

needless stigma not only upon him but also upon his family members,

especially when there is no suggestion of any repeat violation or

ongoing non-compliance with regulatory norms. The submission made

by Ms. Mehta is not seriously disputed by Mr. Dash, learned counsel for

the State. Hence, the prayer made by Ms. Mehta, deserves attention.

15. Regard being had to the societal position of the appellant, his

clean antecedents and the fact that the incident had taken place in the

year 1995, I am of the considered view that the appellant is not required

to undergo any further imprisonment at this stage of his life, considering

the fact that he has already suffered the ordeal of trial and appeal for

more than two and half decades and have undergone custody for about

one year and two months during the trial period. Hence, the sentence

imposed by the learned trial court is reduced to the period already

undergone by the accused appellant. However, in order to meet the ends

of justice, the appellant is directed to pay a fine of Rs.3,000/- (Rupees

Three Thousand) within a period of two months, and in default of

payment of such fine, he shall undergo Simple Imprisonment for a

further period of two months.

16. Accordingly the Criminal Appeal is partly allowed and disposed

of.

(S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 9th of December, 2025/Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA

Location: High Court of Orissa Date: 10-Dec-2025 11:30:37