Bijaya Kumar Sahu & Another vs State Of Odisha
2026 Latest Caselaw 1307 Ori

Orissa High Court

Bijaya Kumar Sahu & Another vs State Of Odisha on 12 February, 2026

        THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.205 of 1995

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

Bijaya Kumar Sahu & another          .......                 Appellants

                                -Versus-

State of Odisha                      .......               Respondent

For the Appellants : Mr. Debi Prasad Pattnaik, Advocate

For the Respondent : Mrs. Sarita Moharana, Additional Standing Counsel

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.02.2026 :: Date of Judgment: 12.02.2026

S.S. Mishra, J. The present Criminal Appeal is directed against the

judgment dated 13.06.1995 passed by the learned Sessions Judge,

Balangir in Sessions Case No. 8 of 1995, whereby the appellant and the co-accused were found guilty for the offence punishable under Section

20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985

(for short, "NDPS Act") and were sentenced to undergo rigorous

imprisonment for four years each and to pay a fine of Rs.25,000/- each,

in default, to undergo further rigorous imprisonment for one year each.

2. During the pendency of the appeal, appellant No.2 (Bidyadhar

Sahu) is stated to have expired and accordingly, the appeal survives only

in respect of appellant No.1, namely Bijaya Kumar Sahu. In so far as the

deceased appellant No.2 is concerned, the appeal stands abated in the

absence of application under Section 394 of Cr.P.C. by his L.R. or next

friend. The written instruction is already on record.

3. Heard Mr. Debi Prasad Pattnaik, learned counsel, for the

appellants and Mrs. Sarita Moharana, learned Additional Standing

Counsel for the State.

4. The prosecution case in brief is that on 14.10.1994, P.W.1, a

Constable attached to G.R.P.S., Titilagarh, while performing train guard

duty in Hirakhand Down Express along with P.W.2 and other staff,

entered the 1st Class compartment of the train at Kesinga Railway Station

and found the appellant and the co-accused sitting alone inside the

compartment along with three attaché cases and two air-bags. On being

questioned, both the accused persons claimed ownership over the said

containers. P.W.1 noticed smell of ganja emanating from the said

containers and on further questioning, the accused persons admitted that

the containers contained ganja. When the train reached Titilagarh

Railway Station, P.W.1 with the help of his colleagues, brought the

accused persons along with the said luggage to G.R.P.S., Titilagarh and

submitted a written report before P.W.6, the Officer-in-Charge, who is

an empowered officer under the NDPS Act. Thereafter, P.W.6 called

local witnesses, opened the containers in the presence of witnesses and

the accused persons, found ganja inside the containers, got the same

weighed through P.W.4 and found the total weight to be about 31

kilograms. P.W.6 seized the contraband and the containers under seizure

list Ext.2, collected samples from each container, sealed the same in

presence of witnesses and the accused persons, arrested the accused

persons and forwarded them along with the seized articles to the Court.

The samples were subsequently sent to R.F.S.L., Sambalpur and the

chemical examiner's report confirmed the samples to be ganja. Upon

completion of the investigation, charge-sheet was submitted.

5. The plea of the defence was one of complete denial. The stand

taken was that the accused persons had gone to the railway station to

receive their relatives and were falsely implicated by the G.R.P. staff on

account of refusal to pay the alleged subscription for Dussehra

festivities. The prosecution examined 6 P.Ws. In support of their

defence, the accused persons examined themselves as D.Ws.

6. The learned trial Court, upon meticulous appreciation of the oral

and documentary evidence adduced by the prosecution, came to the

conclusion that the prosecution had successfully established the charge

under Section 20(b)(i) of the NDPS Act against the accused persons

beyond all reasonable doubt. The trial Court relied primarily upon the

consistent and cogent testimonies of the official witnesses, particularly

the evidence of the constables who first intercepted the accused in the

train compartment and the evidence of the Officer-in-Charge of

G.R.P.S., Titilagarh, who conducted the seizure, sampling and

subsequent procedural formalities. The Court observed that the seizure

of ganja from the conscious possession of the accused persons stood duly

proved through the seizure list, sample seal, and chemical examination

report confirming the contraband to be ganja. It was further held that

there was substantial compliance with the procedural safeguards under

the NDPS Act and that minor discrepancies or non-support of

independent witnesses did not affect the core prosecution case,

particularly when the official witnesses were found trustworthy. On such

analysis, the learned trial Court recorded the finding of guilt and

sentenced the accused persons to undergo rigorous imprisonment and

pay fine as prescribed under law. The relevant portion of the aforesaid

judgment is extracted herein below for ready reference:-

"11. Undisputedly P.W.6 is the O.I.C. of G.R.P.S., Titilagarh who had made the seizure. It is categorically stated by him in his evidence that after he seized the articles he collected the sample from each container and sealed the sample in presence of the accused persons and the witnesses. On the

following day he forwarded the accused persons to court along with the seized articles. On 15.11.94 he sent the sample to the R.F.S.L., Sambalpur for chemical examination through the S.D.J.M., Titilagarh under his forwarding letter marked Ext.3. It is stated by him that as he has no seal of his own he used the seal of the R.P.F. in sealing the sample. According to him he had kept the seized articles in his custody in the G.RP.S. from the date of seizure till he sent the articles i.e. on the following day to the court. He had kept those articles in the Malkhana of the G.R.P.S. under his personal supervision and due care. The only contention of the learned advocate for the accused is that as per the evidence of P.W.6, at present M.O.I the attache has been partly broken but at the time of seizure it was not broken. Therefore, the I.O. is negligent in keeping those articles safely in his custody. But undisputedly on the next day of the seizure the I.O. had sent the attaches and the air-bags containing ganja to the court Malkhana. It might be possible that the damage was not when the articles with the I.O. but might be in the court Malkhana or during the transit. Therefore, the negligence of the I.O. in keeping the articles in his custody can neither be inferred nor such negligence if any suggests the violation of section-55 of the Act entailing the acquittal of the accused.

12. In the result both the accused persons are guilty u/s. 20(b)(i) of the N.D.P.S. Act, 1985 and they are convicted thereunder. The accused persons not being below the age of 18 years, the question of releasing them under the provision of the P.O. Act does not arise."

7. Mr. Pattnaik, learned counsel appearing for the appellants,

assailed the impugned judgment primarily on the ground that the learned

trial Court placed undue and excessive reliance upon the evidence of

official witnesses while completely overlooking the evidentiary value of

the independent witnesses. It was contended that the trial Court

erroneously observed that P.Ws.3, 4 and 5 had turned hostile, whereas,

in fact, none of them were declared hostile during the trial. He submitted

that the defence evidence, particularly the testimony of appellant No.1 as

D.W.1 and the platform ticket proved through Exhibit-A, was not

discussed by the trial Court even from the standpoint of probability.

Learned counsel argued that P.W.4, who allegedly weighed the

contraband, failed to identify the material objects (M.O. I to V) and

categorically stated that he could not say why the articles were weighed

and that the prosecution had not even established through him that the

substance weighed was ganja. Similarly, it was urged that P.W.3's

testimony materially contradicted the prosecution case inasmuch as he

stated that he had seen appellant No.2 near the overbridge at about 7.00

A.M. and police personnel near certain articles at GRPS, which

contradicted the prosecution case that the train reached Titilagarh Station

at about 8.00 A.M. This, according to the appellant, probabilised the

defence version that appellant No.1 had merely come to the platform to

receive a friend and was forcibly taken to GRPS.

8. He further submitted that P.W.5 also did not support the

prosecution on the actual seizure and sampling process and admitted that

he had not seen the seizure being affected. According to learned counsel,

the trial Court failed to appreciate these factual inconsistencies and

instead confined itself to discussing the legal compliance of NDPS

provisions without testing the foundational facts of recovery and

possession. He argued that the evidence of P.W.1 on detection was

inherently improbable, particularly when he claimed that the entire first-

class compartment contained only the accused and baggage, yet he did

not immediately inform the TTE or other railway staff present in the

train. It was contended that the trial Court dealt superficially with the

question of travel by the appellants by observing that they were

travelling without ticket, which caused prejudice. It was also submitted

that P.W.2 did not corroborate P.W.1 on detection of contraband from

the train and that P.W.6 (I.O.) admitted that he had no personal

knowledge of the apprehension of the accused, had not prepared any spot

map, and had not visited the compartment from where the alleged

recovery was made. It was further argued that though the prosecution

alleged admission by the accused before P.W.1 regarding ownership of

the baggage and its contents being ganja, such admission was neither

recorded judicially nor properly discussed by the trial Court.

9. Mr. Pattnaik further argued that in NDPS cases, the presumption

under Section 54 arises only after foundational facts of recovery and

conscious possession are proved. It was submitted that in the present

case, recovery itself is doubtful and not corroborated even by the

evidence of the official witnesses, and therefore, the presumption under

Section 54 could not have been invoked. He placed reliance on Sanjeet

Kumar Singh @ Munna v. State of Chhattisgarh, [2022] 11 S.C.R. 166,

to contend that compliance with statutory safeguards under Sections 42,

43, 49 and 50 of the NDPS Act is of utmost importance, particularly

because once possession is proved, the statutory presumption operates

against the accused. He submitted that there was unexplained delay of

about one month in sending samples to RFSL, Sambalpur, and

discrepancies regarding the time of weighment, inasmuch as P.W.1

stated that weighment was done at about 5.00 P.M., whereas P.W.4

stated that he reached GRPS between 10.00 and 11.00 A.M., and the I.O.

remained silent on this aspect. On these grounds, it was contended that

the prosecution case suffers from serious infirmities and the appellant is

entitled to the benefit of doubt and consequent acquittal.

10. Mrs. Maharana, learned Additional Standing Counsel for the

State, submitted that the prosecution case is founded on cogent,

consistent and reliable evidence which clearly establishes the guilt of the

accused persons beyond all reasonable doubt. The factual matrix reveals

that on 14.10.1994, while P.W.1 along with P.W.2 and other railway

police personnel were performing train guard duty in Hirakhand Down

Express, they detected the accused persons sitting alone in a First Class

compartment along with three attaché cases and two airbags. On being

questioned, the accused persons claimed ownership over the said

luggage and P.W.1 noticed smell of ganja emanating from the

containers. On further questioning, the accused persons themselves

admitted that the containers contained ganja. Thereafter, upon arrival of

the train at Titilagarh Railway Station, the accused along with the

luggage were brought to G.R.P.S., Titilagarh, where P.W.6, the Officer-

in-Charge and an empowered officer under the NDPS Act, conducted

search and seizure in the presence of independent witnesses. Upon

opening of the containers, ganja was recovered, weighed and found to be

31 kilograms. The contraband was seized, samples were drawn and

sealed in the presence of witnesses and the accused, and subsequently

sent to R.F.S.L., Sambalpur, which confirmed the substance to be ganja.

Thus, the chain of detection, seizure, sampling and chemical

examination stands fully established.

11. She further submitted that the testimonies of P.Ws.1, 2 and 6 are

consistent and mutually corroborative regarding detection, seizure and

arrest. Nothing material has been elicited in cross-examination to

discredit their testimony. Merely because seizure witnesses P.Ws.3 and 5

turned partly hostile or P.W.4 partially resiled regarding the identity of

containers, the prosecution case cannot be discarded, as it is well settled

that conviction can be based upon reliable testimony of official witnesses

if found trustworthy. The defence plea that the accused persons were

falsely implicated due to refusal to pay Dussehra subscription is wholly

improbable and unsupported by any independent evidence. No complaint

was lodged by the accused persons to any superior authority, nor were

any alleged relatives produced to substantiate the defence version. The

surrounding circumstances including the exclusive presence of the

accused in the compartment, their claim of ownership over the

containers, smell of ganja and subsequent recovery of 31 kg of ganja

clearly establish conscious possession.

12. The State further submitted that there has been due compliance

with procedural safeguards under the NDPS Act. Section 50 is not

attracted in the present case as there was no personal search of the

accused persons and the search was confined only to baggage and

containers. The detection was initially made by P.W.1, who only

questioned and secured the accused and produced them before the

empowered officer P.W.6, who thereafter conducted the search and

seizure in accordance with law. The legal position as laid down in State

of Punjab vs. Balbir Singh, reported in 1994 AIR 1872 and subsequent

decisions clearly establishes that Section 50 applies only to personal

search and not to the search of bags or containers. Similarly, the

requirements of Sections 55 and 57 have been substantially complied

with, as P.W.6 has categorically stated regarding safe custody of seized

articles, proper sealing of samples and reporting to superior officers.

Even assuming minor lapses, the said provisions are directory in nature

and unless prejudice is shown, the trial cannot be vitiated.

13. On careful consideration of the evidence on record, this Court

finds that the presence of the accused persons inside the First-Class

compartment along with the three attaché cases and two airbags is not

disputed. The evidence of P.W.1 clearly establishes that the accused

persons claimed ownership of the containers and admitted that those

contained ganja. The evidence of P.W.2 corroborates the fact that the

accused persons along with the containers were brought to G.R.P.S.

Titilagarh. The testimony of P.W.1 in that regard is relevant, which is

reproduced herein for ready reference:-

"As the smell of ganja was coming, on suspicion I asked to those 2 accused persons, what were the contents of those attache and air bags. By that time the train was about to reach Titilagarh Station. They with much reluctance told that the 2 attache and air bag were containing ganja. I asked them to produce if they had any document in support of taking ganja. But they could not produce. When the train stopped at Titilagarh station I called my colleague who were performing their duties with me to that compartment. There we took both the accused persons and the attache and air bags to the G.R.P.S. and produced them before the O.I.C. of G.R.P.S."

The evidence of P.W.6 establishes seizure, sampling and

forwarding of samples for chemical examination. The chemical

examination report conclusively establishes that the seized substance

was ganja. Nothing material has been elicited in cross-examination to

discredit the core prosecution version.

14. Merely because P.Ws.3, 4 and 5 did not fully support the

prosecution in all particulars does not demolish the prosecution case. It is

well settled that conviction can be based on the testimony of official

witnesses if their evidence is found reliable and trustworthy. In the

present case, the evidence of P.Ws.1, 2 and 6 is consistent and inspires

confidence. The defence plea that the accused were falsely implicated for

refusal to pay subscription appears inherently improbable, particularly in

absence of any complaint made by the accused persons before any higher

authority.

15. So far as compliance of Section 50 NDPS Act is concerned, the

evidence on record clearly establishes that there was no personal search

of the accused persons. The search was confined to attaché cases and

airbags. The law is well settled that Section 50 applies only to personal

search and not to the search of baggage or containers. Therefore, non-

compliance with Section 50 is not established in the facts of the present

case.

16. Regarding Sections 55 and 57 of the NDPS Act, the evidence of

P.W.6 indicates that the seized articles were kept in safe custody and that

intimation was given to superior officers. Even otherwise, the said

provisions are held to be directory in nature and unless prejudice is

shown to have been caused to the accused, non-compliance would not

vitiate the trial. No such prejudice has been demonstrated in the present

case.

17. The contention advanced on behalf of the appellants that the

statutory presumption under Section 54 of the NDPS Act could not have

been invoked in the absence of proof of foundational facts is found to be

devoid of merit in the facts and circumstances of the present case. The

evidence on record clearly establishes the recovery of contraband ganja

from the conscious and exclusive possession of the accused persons,

which has been consistently spoken to by the official witnesses whose

testimonies have remained unshaken in cross-examination. The seizure

list, sample seal, forwarding letter and the chemical examination report

form an unbroken chain of incriminating circumstances proving recovery

and nature of the seized substance. Once such foundational facts are

proved, the statutory presumption under Section 54 of the NDPS Act

legitimately operates against the accused. The reliance placed on Sanjeet

Kumar Singh @ Munna v. State of Chhattisgarh, reported in [2022] 11

SCR 166, is misplaced, as the said decision reiterates the requirement of

proving recovery and possession, which in the present case stands duly

established.

Further, the record reflects substantial compliance with the

procedural safeguards contemplated under Sections 42, 43, 49 and 50 of

the NDPS Act, and no material prejudice has been demonstrated to have

been caused to the accused on account of any alleged procedural lapse.

Therefore, the argument advanced by the learned counsel for the

appellant does not create any dent in the otherwise cogent and reliable

prosecution case.

18. In view of the above discussion, this Court finds no infirmity in

the finding of guilt recorded by the learned trial Court. The prosecution

has been able to prove beyond reasonable doubt that the appellant was in

conscious and illegal possession of 31 kilograms of ganja in

contravention of the provisions of the NDPS Act. Accordingly, the

conviction of the appellant under Section 20(b)(i) of the NDPS Act is

hereby affirmed.

19. Coming to the question of sentence, it is brought to the notice of

this Court that the appellant has already undergone custody for a period

of about 10 months and 24 days. Considering the totality of

circumstances, the long pendency of the appeal, and the period already

undergone, this Court is of the considered view that ends of justice

would be met if the substantive sentence is modified. While maintaining

the conviction, the sentence is modified to rigorous imprisonment for

one year and the fine amount as imposed by the trial Court is maintained.

However, in default of payment of the fine, the appellant shall undergo

rigorous imprisonment for six months instead of one year.

20. Accordingly, the CRA is partly allowed.

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

Dated the 12th Day of February, 2026/Subhashis Mohanty

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack.

Date: 12-Feb-2026 20:02:20