Orissa High Court

Manoj Kumar Sahoo And Another vs State Of Odisha on 11 September, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.65 of 2002

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


Manoj Kumar Sahoo and another               .......            Appellants

                                 -Versus-

State of Odisha                        .......                  Respondent

For the Appellants : Mr. Tukuna Kumar Mishra, Amicus Curiae

For the Respondent : Mr. Raj Bhusan Dash, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 11.09.2025 :: Date of Judgment: 11.09.2025

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

under Section 374(2) of the Cr.P.C., is directed against the judgment and

order dated 15.03.2002 passed by the learned Sessions Judge-cum-

Special Judge, Khurda at Bhubaneswar in T.R. Case No.12 of 1998,

whereby the present appellants have been convicted for the offence under Section 20(b)(i) of the N.D.P.S. Act and on that count, they were

sentenced to undergo R.I. for three years and to pay a fine of Rs.5,000/-,

in default to undergo further R.I. for six months.

2. The present appeal is pending since 12.04.2002. When the matter

was taken up for hearing on 08.07.2025 and 22.07.2025, none had

appeared on behalf of the appellants. Therefore, this Court requested

Mr. Tukuna Kumar Mishra, learned counsel, who is 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

appellants and Mr. Raj Bhusan Dash, learned Additional Standing

Counsel for the State.

4. The prosecution case in terse and brief is that on 04.12.1998 at

about 4.00 P.M., when the S.I. of Excise Mobile, Bhubaneswar namely

Bali Sethi (P.W.3) performing patrolling duty on Khurda-Gurujanga

road along with his A.S.I. (P.W.2), they found the appellant-1- Manoj

Kumar Sahu riding a Luna from Khurda to Gurujanga side with the co-

accused-Laxmidhar Behera (appellant No.2) on the pillion and a cement

plastic bag was tied to the handle of the Luna. It is alleged that the P.W.3

intercepted the accused persons, searched them and the Luna they were

riding, in the presence of two passers-by, one of whom was examined as

P.W.1. On being searched, they found 2 kgs.500 grams of contraband

ganja kept in the cement plastic bag tied to the handle of the Luna.

Thereafter, in the presence of the punch witnesses, the Excise Officer

sealed the plastic bag containing ganja (M.O.II) and seized it and the

Luna (M.O.IV), the accused persons were riding under the seizure list

(Ext.5). The sample packets were sent for chemical examination and the

outcome of the report was positive. In due course, P.W.3 submitted

prosecution report under Section 20(b)(i) of the N.D.P.S. Act against

both the accused persons. Accordingly, charges were framed and on the

stance of denial and claim of trial, both the accused persons were put to

trial.

5. The prosecution in order to bring home charges examined three

witnesses. Out of whom, P.W.1 is claimed and said to be an independent

and punch, witness whereas P.W.2 was the Excise A.S.I. and assistant of

P.W.3 and P.W.3 was the S.I. of Excise Mobile.

6. The learned trial Court by taking into consideration the entire

evidence brought on record particularly the evidence of P.W.3 and the

other witnesses came to the following conclusion:-

"8. The defence has taken a belated plea at the stage of accused statement that the p.w.3.had cheated the accused persons of a sum of Rs.10,000/- each on the pretext of arranging service for them and roped them in a false case as they demanded refund of the money. The D.Ws.1 and 2 who speak of a conversation between both the accused and p.w.3 in this connection at Chhatabar bazar on the day of occurrence, are co-villagers of accused Laxmidhar Behera and Manoj Kumar Sahu respectively. According to D.w.1, accused Manoj runs a grocery shop at Chhatabar bazar, whereas D.w.2 has stated during cross-examination that none of the accused persons has any shop at Chhatabar bazar. The D.w.1 has stated that on 3.12.1998 while he had been to Chhatabar bazar to sell vegetable grown in his land found the p.w.3 talking to both the accused at Chhatabar bazar at about 1 p.m., and the accused were demanding refund of a sum of Rs.10,000/-. The p.w.3 asked them to visit his office so that he can pay back the money and subsequently booked them in a false case, whereas the D.w.2 has stated that he has got a vegetable shop at Chhatabar bazar and at 11 am, on 3.12.1998 while both the accused were standing infront of his shop, one Excise officer went

there and both the accused asked him to return back money he had taken from them and later on he came to know that the Excise officer had booked the accused persons in a false case.

Not only the D.w.2 has contradicted the D.w.1 by stating that the conversation between the accused persons and the p.w.3 took place at 11 a.m. but he has stated that only one Excise officer had been to Chhatabar bazar and the accused persons asked him to return back the money whereas the D.w.1 has stated that there were about 4 to 6 Excise personnel with the p.w.3 at the relevant time. The evidence of D.ws.1 and 2 is beset with material contradictions and inherent improbability. Had there been any nugget of truth in the plea, the defence would not have failed to take the plea from the beginning of the trial. This belated defence plea, therefore, appears to be a got up one.

9. From the discussions made and reasons stated in the foregoing paragraphs I hold that the accused persons were transporting 2kgs 500 grams of Ganja(M.O.II) by the Luna (M.O.IV). I, therefore, hold that the prosecution has been able to bring home the charge u/s.20(b)(i) of the N.D. & P.S. Act against the accused persons.

10. In the result. I find the accused persons guilty u/s.20(b)(i) of the N.D. & P.S. Act, 1985 and convict them thereunder."

7. Being aggrieved by the judgment of conviction and order of

sentence passed by the learned Sessions Judge-cum-Special Judge,

Khurda at Bhubaneswar, the present appeal has been preferred by the

appellants.

8. Mr. Mishra, learned Amicus Curiae for the appellants submitted

that in the present case, the mandatory provision under Section 50 of the

N.D.P.S. Act has not been complied with. He has emphasized Section

50(5) of the N.D.P.S. Act, which reads thus:-

"50. Conditions under which search of persons shall be conducted-

xxxx xxxx xxxx (5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973."

For the convenience of appreciation, Section 100 of Cr.P.C. is also

reproduced:-

"100. Persons in charge of closed place to allow search:- (1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall,

on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by Sub-Section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the

said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under Sub-Section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)."

9. Mr. Mishra, learned Amicus Curiae further submitted that in the

present case, the procedure contemplated under Section 50 of the

N.D.P.S. Act read with Section 100 of Cr.P.C. has been complied

partially, because search and seizure has not been done in presence of

two independent witnesses. To substantiate his case, he has relied upon

the judgment of the Hon'ble Supreme Court in the case of Arif Khan @

Agha Khan vrs. The State of Uttarakhand reported in (2018) 18 SCC

380, wherein it has been held as under:-

"20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied

with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981] .)

21. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband "charas" from the appellant and, if so, whether it was done in the presence of a Magistrate or a gazetted officer so as to make the search and recovery of contraband "charas" from the appellant in conformity with the requirements of Section 50.

22. In our considered view the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the

appellant in the presence of either a Magistrate or a Gazetted Officer.

23. It is the case of the prosecution and which found acceptance by the two courts below that since the appellant-accused was apprised of his right to be searched in the presence of either a Magistrate or a gazetted officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant-accused gave his consent in writing to be searched by the police officials (raiding party), the two courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.

24. We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] . This we say for the following reasons:

24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer. 24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "charas" was not made from the appellant in the presence of any Magistrate or gazetted officer.

24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "charas" from him, was the gazetted

officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer.

24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer."

10. Perusal of the evidence of P.W.3 reveals that he has searched and

seized the alleged contraband ganja from the accused persons by giving a

written notice under Ext.2 that the Gazatted Officer or the Magistrate is

not available and seeking express written consent from them to search

and seized the article from them. The written consent was also obtained

from the accused persons vide Ext.3. Thereafter, the search was carried

out.

11. Mr. Dash, learned Additional Standing Counsel for the State

submitted that since the written consent was obtained from the accused

persons vide Ext.3, the compliance of Section 50 of the N.D.P.S. Act is

satisfied. However, it is apparent on record that although the written

consent was taken but the same was not done in presence of the two

independent witnesses. The evidence of P.W.3 in that regard is relevant,

which is reproduced herein under:-

"In the presence of the witnesses, I informed the accused persons that to be searched in presence of .... Magistrate or a Gazetted Officer of any designated departments. I served a notice on them to exercise their aforesaid option u/s. 50 of the N.D.P.S. Act. Ext.1/1 is the copy of the notice I have served on accd. Laxmidhar Behera and Ext.2/1 is the copy of the notice I have served on accd. Manoj Ku. Sahu. Ext.1/3 is my signature and Ext.1/4 is the signature of accd. Laxmidhar Behera thereon. Ext.2/3 is my signature and Ext.2/4 is the signature of accd. Manoj Ku. Sahu thereon. Both the accd. voluntarily consented to be searched by me and also gave the consent in writing. Ext.3/1 is the written consent of accd. Laxmidhar Behera. Ext.3/3 is the signature of accd. Laxmidhar Behera. Ext.3 is the signature of witness Birakishore Sethi (P.W.1) and Ext.3/2 is the signature of Sapana Pradhan, A.S.I. (P.W.2) who was with me on patrol duty. Ext.4/1 is the written consent of accd. Manoj Kumar Sahu. Ext.4/3 is the signature of accd. Manoj Kumar Sahu. Ext.4 is the signature of witness Birakishore Sethi (P.W.1) and Ext.4/2 is the signature of Sapana Pradhan, A.S.I. (P.W.2) who was with me on patrol duty."

(unclear)

From the prosecution evidence, it is further clear that when the

appellants were intercepted, two persons namely Birakishore Sethi

(P.W.1) and one Pravat Kumar Das from Khurda were passing through

the place of occurrence. They were roped in by the I.O. to be the

independent witnesses. P.W.1 was examined by the prosecution. The

evidence of P.W.1 is somehow shaky, however, the other witness

namely Pravat Kumar Das was not even attempted to be examined by the

prosecution. On the contrary, the defence has examined the said

witnesses as D.W.3, who has deposed as under:-

"1. I know Excise S.I. Bali Sethi (P.W.3). About 3 to 4 years back he took my signature on a written paper at Khurda in connection with a case. He had not read over and explained the contents of the paper but told me that it was in connection with a case of Ganja."

12. In the light of the aforementioned judgment, Mr. Mishra, learned

Amicus Curiae for the appellants submits that the prosecution although

named two independent witnesses namely P.W.1 and D.W.3, but

deliberately did not examine the second witness i.e. Pravat Kumar Das.

In the absence of the evidence of two independent witnesses, the

condition precedent to comply the requirement under Section 100 of

Cr.P.C. to satisfy the compliance of Section 50(5) of the N.D.P.S. Act

lacking at large. Hence, he submits that on the sole ground, the

appellants are entitled to acquittal.

13. The learned trial Court while dealing with the defence plea of non-

compliance of Section 50 of the N.D.P.S. Act has arrived at the

following findings:-

"No doubt, the other punch witness namely, Prabhas Kumar Das examined as D.w.3 has stated that he has lent his signature (Ext.5/2) on the seizure list (Ext.5) at Khurda without witnessing the search and seizure. But this evidence of D.w.3 ipso facto, does not set the cogent evidence of the P.ws.1, 2 and 3 at naught. In the case of DILLIP PANDURANG KOLEKAR, Vrs. STATE OF MAHARASHTRA (II (1992) 2 CC.R.- 1322) a Division Bench of the Bombay High Court observed thus :-

"The punches admit their signatures on Ext 10 and we see no reason to believe their version about being made to give their signatures to a document, the contents whereof do not reflect what had taken place in their presence. A. contemporaneous drawn up Ext.10 suffice to corroborate the sworn testimony of Head constable and police constable. There is no rule of prudence much less of law, that uncorroborated

testimony of police witnesses should not be relied upon."

In the present case the evidence of the Excise Officers (P.Ws.2 and 3) has been corroborated in material particular by one of the punch witnesses namely, the p.w.1."

14. I have carefully gone through the findings recorded by the learned

trial Court on the appreciation of evidence and also the reasoning

recorded to negate the plea of non-compliance of Section 50 of the

N.D.P.S. Act by the defence. I am unable to agree with the reasoning

recorded by the learned trial Court. It is apparently clear from the record

that the prosecution has failed to establish the case beyond all reasonable

doubt, there is a clear non-compliance of the procedural safeguard

contemplated under Section 50 of the N.D.P.S. Act. Hence, the natural of

corollary would be that the appellants are entitled to the benefit of doubt.

Accordingly, by extending the benefit of doubt, the appellants are

acquitted of all the charges under Section 20(b)(i) of the N.D.P.S. Act.

The bail bond furnished stands discharged.