[Cites 61, Cited by 0]
Orissa High Court
Pradeep Mohanty @ Babaji vs State Of Odisha on 9 January, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.471 of 2021
In the matter of a Memorandum of Appeal under
Section 374(2) of the Code of Criminal Procedure
..................
Pradeep Mohanty @ Babaji Appellant
Mohanty ....
-versus-
State of Odisha .... Respondent
For Appellant : M/s. Rakesh Behera,
Advocate
For Respondent : M/s. C.K. Pradhan,
Addl.Govt. Advocate
CRLA No. 475 of 2021
Manas Ranjan Tripathy .... Appellant
-versus-
State of Odisha .... Respondent
For Appellant : M/s. B.K. Behera-1,
M.R. Parichha, D. Jagat,
Advocate
For Respondent : M/s. C.K. Pradhan,
Addl.Govt. Advocate
// 2 //
CRLA Nos. 529 of 2021
Ayub Sahu & Aju Sahu Appellants
....
-versus-
State of Odisha .... Respondent
For Appellant : M/s. S. Dash,
For Respondent : M/s. C.K. Pradhan,
Addl.Govt. Advocate
PRESENT:
THE HONBLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
-----------------------------------------------------------------------------
Date of Hearing:10.10.2025 and Date of Judgment:09.01.2026
-----------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. Since all these three appeals arise out of a common
judgment passed by the learned First Additional Sessions
Judge, Rourkela in Special G.R. Case No.6 of 2019, all the
appeals were heard analogously and disposed of by the
present common order.
2. Learned Special Judge vide the impugned
judgment dt.16.08.2021 convicted all the three appellants
// 3 //
for the offence under Section 20(b)(ii) (C) of the NDPS Act
and Section 29 of the Act. While convicting the appellants
for the aforesaid offences, they were sentenced to undergo
R.I for a period of 10 (ten) years and to pay a fine of Rs.1,
00,000/- (Rupees One lakh only) each for the offence
under Section 20(b)(ii)(C) of the NDPS Act and in default,
each of them to undergo R.I for another 2(two) years.
3. The case of the prosecution is that on 12.11.2019
at about 7:15 PM, the informant Uday Kumar Sahu, SI of
Police, presented a written report stating therein that on
the same day the IIC, R.N Palli PS received an information
from reliable source that contraband ganja is being
transported from Kandhamal to Rourkela in a silver colour
Indigo ECS vehicle bearing OR -03 registration number.
The IIC entered the said fact in SDE No. 10 and thereafter
he along with ASI PK Jena, Havildar AP Samal, Constable
UK Swain, Constable P.B. Chardia and constable UC
Pradhan were directed vide GD Entry No. 12 and
command certificate no. 393 dated 12.11.2019 to proceed
to Panposh Chowk on NH 143 for conducting MV checking
to verify the veracity of the information. Accordingly, he
// 4 //
along with other staffs and independent witnesses namely
Asish Jaiswal and Shankar Shaw proceeded to Panposh
Chowk in official jeep driven by Assistant Driver Sribasta
Behera. At Panposh Chowk they performed MV checking
with an intention to track the suspected Indigo ECS. At
about 3.15 PM, they could detect an Indigo car bearing
Regd No. OR-03G 5622 coming from Sundargarh side. It
was signaled to stop, but without stopping the said vehicle
proceeded towards Jalda side. Accordingly, the vehicle was
chased and could be detained at about 3:30 PM at Ruptola
Chowk in presence of independent witnesses. It was
noticed that inside the vehicle three persons were present.
On being asked, they disclosed their names to be Manas
Ranjan Tripathy, Ayub Sahu and Pradeep Mohanty. They
all admitted to have been transporting ganja. Further,
Ayub Sahu disclosed that they have been supplying ganja
to Bapi Parida, Ashok Swain and Amulya Kumar Rout and
also to some other persons.
3.1. It was further reported that from inside the said
vehicle smell of ganja was coming out and two large
packets were found loaded inside the vehicle. At 3:35 PM,
// 5 //
he informed the fact of detention of the vehicle loaded with
ganja and suspected persons to the IIC over phone and to
the DCO ASI R.N Das. It was further reported that he
served notices on the three persons found inside the car
as to whether they intend to be searched before an
Executive Officer or Gazetted Officer in compliance with
Section 50 of NDPS Act. Those persons, in turn, exercised
their option in writing that they wanted to be searched
before an Executive Magistrate and such fact was
intimated to the IIC over phone. While waiting for the
arrival of the Executive Magistrate, Havildar AP Samal was
commanded at 5:30 PM for arranging a weighman for
weighing the contraband Ganja and also to bring a tailor
for stitching cotton bags for packing those contraband
Ganja. At around 4:00 PM, Havildar AP Samal arrived with
one tailor namely Sk. Mustaque Ali and weighman namely
Sushil Kumar Gupta along with digital weighing machine.
3.2. At 5.45 PM, Executive Magistrate Dilip Kumar
Tripathy arrived at the spot and after his arrival he was
explained about the purpose of his visit to the said spot.
Thereafter the police staff, Executive Magistrate
// 6 //
introduced themselves to those three persons detained at
the spot and also gave their personal search and upon
such search no incriminating or contraband articles were
found from them. According to the informant, on personal
search of accused Manas, who was the driver of the
vehicle two mobile phones and cash of Rs 3700/-were
recovered and the same were seized in presence of the
independent witnesses and Executive Magistrate. On
search of accused Ayub, two mobile phones, cash of Rs
9800/-, ATM cards and his driving license were recovered
and the same were also seized in presence of the
independent witnesses and Executive Magistrate.
Similarly, on search of accused Pradeep one mobile phone
and cash of Rs 50,500/- was recovered and the same were
also seized in presence of independent witnesses and
Executive Magistrate.
3.3. Thereafter, the vehicle was searched in presence of
two independent witnesses and plastic gunny bags having
ganja smell was found. Both the bags were brought out of
the vehicle. When the first bag was opened, 44 numbers of
identical cello tape wrapped polythine packets containing
// 7 //
contraband ganja was found. Some of those individual
small identical packets were weighed and they came to be
one kilogram in average. Those individual polythene
packets were opened, and the ganja were heaped on to a
dari making a homogeneous mixture and then was
weighed by the weighman and on such weighment, the
weight of such ganja came to be 44 kgs. Thereafter, such
homogeneous heap of ganja was packed in a plastic gunny
bag which was marked as "Package-1". From it, two
samples of Ganja, each weighing 25 grms were drawn
which were packed and sealed separately in polythene
pouches marked as "Original Sample-1" and "Duplicate
Sample-1". The net weight of the bulk ganja after drawl of
samples came to be 43.950 kg.
3.4. Then the second bag was opened and from it 34
numbers of identical cello tape wrapped polythene packets
containing contraband ganja was recovered. The polythene
packets were opened and were made one homogeneous
mixture and then was packed into another plastic gunny
bag which was when weighed came to be 34 kgs. Such
plastic bag was marked as "Package No. 2." From it two
// 8 //
samples of ganja each weighing 25 grams were drawn,
which were packed and sealed separately in polythene
pouches marked "Original Sample-2" and "Duplicate
Sample-2". The net weight of the bulk ganja after drawl of
samples came to be 33.950 kgs. The same were sealed
properly by using his personal brass seal and sample
drugs were again sealed in paper envelopes. The sample
ganja marked as "original sample-1" and "original sample -
2" along with the Test memo were kept in a large size
envelope for the purpose of sending it to RFSL for
examination and was marked as "secret drugs sample/test
memo." Thereafter, the vehicle, two bulk ganja packets,
two envelopes containing samples, one large envelope
marked as Secret Drug sample, 78 number of empty
wrapped polythene kept in another plastic bag and the
dari used for heaping homogeneous mixture of seized
ganja were seized at 6:30 P.M. in presence of independent
witnesses and the Executive Magistrate. The brass seal
that was used for sealing purposes was left in zima of
independent witness Asish jaiswal. The weighing machine
was seized from Sushil Kumar Gupta and was left in his
// 9 //
zima. Both the tailor and the weighman were paid their
dues. It was then reported that the accused persons as
well as the seized items were brought to the police station
and then the written report was filed. On the basis of the
said written report, IIC R.N Palli PS registered a FIR in R.N
Palli PS Case No. 289/2019 against all the above-named
accused persons for commission of offences under Section
20(b)(ii)(C) of the NDPS Act (in short, "the Act").
4. It is contended that after completion of the
investigation, final form was submitted on 11.05.2020
against 7(seven) numbers of accused persons which
includes the present 3(three) appellants for the offence
under Section 20(b)(ii)(C) of the NDPS Act and Section
120-B of the Indian Penal Code. But vide order
dt.18.12.2020, learned Special Judge framed charge
against all the 7(seven) accused persons, for commission
of offence under Section 20(b) (ii) (C)/29 of the Act.
4.1. Basing on such charge framed, all the Seven
accused persons though faced the trial, but save and
except the present 3(three) appellants, the other four
accused persons were held not guilty of the charges and
// 10 //
accordingly were acquitted vide the impugned judgment
dt.16.08.2021. However, the present appellants were
convicted and sentenced for the offence under Section 20-
b (ii) (C)/29 of the Act and have been sentenced to
undergo R.I for 10(ten) years and to pay a fine of Rs.1,
00,000/- (Rupees one lakh) each, in default, R.I for further
2(two) years.
4.2. Learned counsels appearing for the appellants
while assailing the impugned order of conviction and
sentence, contended that since the provisions contained
under the Act were never followed, which are mandatory
requirements, the order of conviction and sentence so
passed against the appellants cannot be sustained.
4.3. With regard to the illegalities and irregularities
committed during investigation, learned counsels
appearing for the appellants contended that the
contraband was seized from the vehicle OR-03-G 5622 on
12.11.2019 and the occurrence took place in between 3.15
P.M to 6.30 P.M. After seizure of the contraband, F.I.R
was lodged by the S.I. of police, who was leading the
search party-P.W.7 in Raghunathpalli Police Station at
// 11 //
about 7.15 P.M. All the 3(three) appellants were arrested
from the spot and remanded to custody on 13.11.2019.
4.4. It is contended that even though the case involves
seizure of contraband, but while making such seizure of
the contraband, the brass seal which was used to seal the
bulk contraband as well as the samples, was never
produced before the Court. Since the brass seal which
was used to put the seal on the bulk contraband so
marked as M.O.II as well as the samples marked as
M.O.III and M.O.IV, it casts a serious doubt with regard to
the contraband seized from the vehicle so marked as
M.O.II and safe custody of the contraband during the
intervening period between seizure and production before
the Court, becomes very much doubtful.
4.5. Even though P.W.7 in Para 28 of his deposition
contended that he handed over the brass seal to P.W.6,
but the same was never produced before the Special Court
at the time of production of the contraband. P.W.7 in his
cross-examination in para-43 also admitted that he had
not taken the impression of the brass seal in a plain paper
// 12 //
and it was never submitted before the Court for
inspection.
4.6. It is also contended that even though P.W.7 in
para-28 of his deposition contended that he handed over
the brass seal to P.W.6, but P.W.6 in his cross
examination at para-18 contended that the brass seal was
handed over to him at the Police station after receipt of the
summon in the case. Statement of P.W.7 in para-28 and
43 of his cross-examination and that of P.W.6 in para-18
reads as follows:
P.W.7
28. I handed over my brass seal to the independent
witness Asish Jaiswal with a direction that he will
produce the same as and when directed by the Court.
This is the said zimanama that was executed while
handing over the brass seal to Asish Jaiswal already
marked as Ext.16 and this is my signature appearing
therein marked as Ext.16/2. This is my personal
bras seal which I handed over to Asish Jaiswal
already marked as MO-VII.
Xxx xxx xxx
43. I cannot say the last of renewal and the period to
which such renewal was valid in respect of the said
weighing machine which was used in the instant case
for weighing the ganja. The specimen impression of
the brass seal that was used in the instant case for
sealing the contraband articles has not been taken in
a plan paper and was not submitted before the Court
for inspection.
// 13 //
P.W.6
18. I have given all my signatures in connection with
the present case at the police station. By the time I
had signed over the seizure lists nothing was written
over it. It is a fact that the brass seal was handed
over to me at the police station after I received
summons in the instant case.
4.7. It is also contended that even though learned
Special Judge in para-71 of the judgment came to a
conclusion that impression of the brass seal is present on
the test memo found inside the sample packet, but the
said test memo was never exhibited by the prosecution
through the P.Ws. P.W.7, in para-44 of his deposition
clearly contended that such a test memo is not available
in the case record. It is accordingly contended that on the
face of such admission made by P.W.7, learned Special
Court could not have held that impression of the brass
seal, is present in the test memo. It proves that the brass
seal used during seizure was not produced before the
Court, at the time of production of the contraband and the
sample packets.
4.8. It is contended that since the Test memo was never
produced and exhibited, learned Special Judge could not
have referred to such a document to satisfy the lacunae in
// 14 //
the prosecution case. Since NDPS Act is a stringent law
which provides for stringent punishment for possession of
contraband, in absence of the test memo being exhibited,
learned Special Judge could not have upheld that since
impression of the brass seal is present on the test memo
found inside the sample packet, it clearly proves that the
brass seal was used during seizure of the contraband and
the sample packets. In support of such submission, with
regard to the non-production of the brass seal by the
prosecution and its impact, reliance was placed to the
following decisions of this Court.
1. Amresh Chandra Barik & Others vs.
State of Odisha, 2021(I) OLR 992.
2. Sk. Sahir Khan vs. State of Orissa,
(2023) 91 OCR 208.
4.9. This Court in the case of Amresh Chandra Barik
in para-10 & 12 has held as follows:
10. xxx xxx xxx
Production of sealed packets of seized contraband
article or sealed-sample packets of such article in
Court in itself is not sufficient to prove its safe
custody before production. Handing over the
brass seal to an independent, reliable and
// 15 //
respectable person and asking him to produce it
before the Court at the time of production of the
seized articles in Court for verification are not the
empty formalities or rituals but is a necessity to
eliminate the chance of tampering with such
articles. The Court before which seized articles are
produced is also required to insist on for the
production brass seal or at least verify the
specimen seal impression with reference to the
seals attached to the seized bags or the sample
packets, if the samples are collected by the officer
conducting search and seizure before its
production in Court and such verification aspect
should be specifically reflected by the Court in the
order sheet. The prosecution is required to prove
the proper sealing of seized articles and complete
elimination of tampering with such articles during
its retention by the investigating agency. In
absence of such procedure being strictly followed,
there is every chance of tampering with the
articles or with the seal The entire path of journey
of the contraband articles from the point of its
seizure till its arrival before the chemical examiner
has to be proved by adducing cogent, reliable and
unimpeachable evidence as in a case of this
nature, the punishment is stringent in nature
otherwise there would be every chance of
prejudice being caused to the accused.
xxx xxx xxx
12. In view of the foregoing discussions, when the
brass seal of P.W. 4 with which bulk quantity and
sample packets of contraband ganja were sealed
so also the specimen seal impression stated to
have been taken in separate sheets were not
produced in Court either at the time of production
of the seized articles in Court for verification or
during trial and when all the seized articles
including four out of the five sample packets sent
for chemical examination were not kept in the
malkhana of Phiringia police station as is evident
from Malkhana register and when the safe
custody of the contraband seized before its
production in Court on 27.09.2013 is a doubtful
feature and tampering with the same during its
retention by investigating agency is not completely
ruled out, it cannot be said that the prosecution
has successfully established the charge under
// 16 //
section 20(b)(II) (C) of the N.D.P.S. Act against the
appellants beyond all reasonable doubt
Therefore, the Impugned judgment and order of
conviction of the appellants under section 20(b)(ii)
(C) of the N.D.P.S. Act and the sentence passed
thereunder is not sustainable in the eye of law.
Accordingly, both the Criminal Appeals are
allowed. The appellants Amresh Chandra Barik
and Premananda Sahoo are acquitted of the
charge under section 20(b)(ii)(C) of the N.D.P.S.
Act. The appellants who are now in jail custody be
set at liberty forthwith, if their detention is not
required in any other case.
Trial Court records with a copy of this judgment
be sent down to the learned trial Court forthwith
for information.
4.10. This Court in the case of Sk. Sahir Khan in para-
8(iv) has held as follows:
8(iv) xxx xxx xxx
Law is well settled as held in the case of Herasha
Majhi-Vrs.-State of Odisha reported in
MANU/OR/0529/2019: 2020 (1) ILR-CUT-197 that
the prosecution has to prove that the contraband
articles produced before the Court were the very
articles which were seized and the entire path has to
be proved by adducing reliable, cogent,
unimpeachable and trustworthy evidence. Since the
punishment is stringent in nature, any deviation
from it would create suspicion which would result in
giving benefit of doubt to the accused.
xxx xxx xxx
In the case in hand, even though after the samples
were drawn and the seized article were produced in
police station, those were kept in police malkhana as
appears from the oral as well as documentary
evidence, but in my humble view, it is not sufficient.
itself to completely rule out tampering with the
same. When the prosecution is producing the brass
seal at the time of production of seized articles and
// 17 //
the seizure containing brass seal Impression was
produced on 25.01.2011, it was the duty of the
learned Special Court to verify at least the brass seal
impression appearing on the seizure list with the
seal impression available on the sample packets as
well as on the bulk quantity of ganja packet which
were produced on 27.01.2011 and marked as Exts.
A/1, A/2, A and also to verify whether the seals
appearing on the seized articles are in proper
condition or not, but the same has not been done
nor verified. Therefore, I am of the humble view that
it is a fit case where benefit of doubt should be
extended in favour of the appellants.
4.11. Learned counsel appearing for the appellants made
further submission contending inter alia that not only
prosecution failed to prove that the contraband seized with
the sample, was sealed by use of the brass seal, which
was never proved, but also there is serious doubt about
sealing of the contraband by the said brass seal in
question. It is contended that P.W.7 in his deposition in
para-14 though submitted that he directed P.W.3 to get a
tailor and weighman and also directed P.W.3 to get his
personal brass seal and other materials kept in the NDPS
kit from the Police Station. But P.W.3 in his deposition
contended that he was only asked by P.W.7 only to get a
tailor and weighman and he went to the spot with the
tailor and weighman, but not with the NDPS kit. The
aforesaid lacuna in the prosecution was also admitted by
// 18 //
P.W.7 in para-14 of his deposition. Para-14 of the
deposition of P.W.7 reads as follows:
14. I intimated IIC, RN Palli P.S about the option
exercised by each of the accused persons with
regard to their search in presence of Executive
Magistrate. At around 3.50 P.M, I directed
Havildar Amulya Prasad Samal to get a tailor and
a weigh man to the spot. I also directed him to get
my personal brass seal, lac, candle and other
NDPS kits and my personal Laptop from the police
station.
4.12. It is also contended that there is serious doubt
about the safe custody of the contraband as well as
samples drawn from the bulk contraband on the date of
occurrence. It is contended that even though the bulk
contraband was seized with preparation of the samples
vide M.O.II, III and IV, but after such seizure of the
contraband, when the same was kept in the Malkhana of
the concerned Police Station, there was no entry made
with regard to such seizure of the contraband when the
same was taken for production before the Special Court.
The lacunae on the part of the prosecution regarding not
making any entry in the Malkhana Register, when the
seized contraband was taken from the Malkahana before
the Special Court, was also admitted in Para-74 of the
judgment. Even though learned trial Court came to a
// 19 //
finding that no entry was made when the bulk contraband
as well as the samples were taken from the Malkhana to
the Court, but with a view that said entry was made vide
Station Diary Entry under Ext.54, overlooked such lacuna
of the prosecution.
4.13. It is also contended that no entry was made when
the sample packets M.O.III and M.O.IV were kept in the
Malkhana, after the same was brought back from the
Court on 13.11.2019. The aforesaid fact is also admitted
by P.W.19 in his cross examination, more particularly; in
Paragraph-14. Not only that P.W.19 in para-25 of his
examination, also deposed that the samples were taken
out of the police Malkhana on 14.12.2019 and a
Command Certificate was issued to Constable L. Ekka for
taking the sample to RFSL, Sambalpur. However, no entry
was made in the Malkhana Register regarding taking out
of such sample packets and handing it over to Constable
L. Ekka. Not only that, P.W.19 in his cross-examination
at Para-47 also admitted that command certificate issued
to Constable L. Ekka has not been seized. Not only that
the said Constable was also not examined as a witness in
// 20 //
the case. Statement of P.W.19 in para-14, 25 and 47
reads as follows:
14. On 13 11.2019 1 forwarded all the accused
persons arrested till then to the Court of Special
Judge, Rourkela. The escort party which
escorted the accused persons to the Court were
also handed over the seized ganja and were
commanded to produce the same before the
Special Court.
The said fact was entered in station diary entry
No.10 dated 13.11.2019 marked as Ext.54 (with
objection).
25. On 14.11.2019 the exhibit kept at
Malkhana was brought out and a command
certificate was issued to one constable No.
1069. L. Ekka to proceed to RFSI, and deposit
the said exhibit there. Accordingly, Sri L.Ekka
proceeded to RFSL and deposited the exhibit on
14.11.2019 and obtained the receipt from
RFSL, Sambalpur with regard to such deposit.
This is the said acknowledgement receipt issued
by RFSL, Sambalpur with regard deposit of
exhibit marked as Ext.61.
47. On 14.11.2019 the exhibit kept at
Malkhana was brought out and a command
certificate was issued to one constable No.
1069. L. Ekka to proceed to RFSI, and deposit
the said exhibit there. Accordingly, Sri L.Ekka
proceeded to RFSL and deposited the exhibit on
14.11.2019 and obtained the receipt from
RFSL, Sambalpur with regard to such deposit.
This is the said acknowledgement receipt issued
by RFSL, Sambalpur with regard deposit of
exhibit marked as Ext.61.
4.14. It is accordingly contended that since the
movement of the sample packets from the Malkhana to
RFSL, Sambalpur was made without any entry in the
Malkhana Register; it creates serious doubt over the
// 21 //
genuineness and authenticity of the samples so taken
from the Malkhana to the laboratory at Sambalpur.
4.15. It is also contended that P.W.7, who seized the
contraband and made the samples during the relevant
point of time, was also the Malkhana In-charge.
Therefore, manipulation with the sample by P.W.7 cannot
be ruled out.
4.16. With regard to not making any entry in the
Malkhana Register, while taking the sealed contraband
from the Malkhana to the Court, it is contended that the
same is violative of Rule 119 of the Orissa Police Rules. As
per the said Rule, every article which the police takes
charge, shall be entered in the Malakhana Register and a
receipt shall be obtained, whenever any such article is
made over to the owner or sent to the Court, number of
such receipt shall be entered in the Register. Since in the
case in hand, the said provision was never followed, there
is serious doubt with regard to the production of the
sample before the Court and so also taking the same to
the laboratory through Constable L. Ekka. In support of
the aforesaid submission, reliance was placed to a
// 22 //
decision of this Court reported in Ramakrushna Sahu
and Others Vs. State of Orissa, 2018 (1) ILR CUT 599
has held as follows:
12. Rule 119 of the Orissa Police Rules which deals
with malkhana register states, inter alia, that all the
articles of which police take charge, shall be entered
in detail, with a description of identifying marks on
each article, in a register to be kept in P.M. form No.
18 in duplicate, and a receipt shall be obtained
whenever any article or property of which the police
take charge is made over to the owner or sent to the
Court or disposed of in any other way and these
receipt shall be numbered serially and filed, and the
number of receipts shall be entered in column No. 7.
Therefore, it is clear that whenever any article is
seized and kept in police malkhana, details thereof
should be entered in the malkhana register and while
taking it out, the entry should also be made in such
register. This would indicate the safe custody of the
articles seized during investigation of a case before its
production in Court.
4.17. Learned counsel appearing for the appellants
also made further submission contending inter alia that
even though the prosecution has taken the plea that the
bulk contraband as well as the samples were seized and
sealed in presence of the Executive Magistrate-P.W.14,
but, in view of the statements of P.W.19 vis-à-vis P.W.7
and so also of P.W.14, the same is not out of suspicion.
4.18. Even though P.W.19, the I.O of the case in
Para-5 of his deposition stated that at about 3.40.P.M
on 12.11.2019, he got information from P.W.7, the
// 23 //
Seizure Officer, who was at the spot, that the accused
persons want to be searched before an Executive
Magistrate, but the Command Certificate was issued by
P.W.19 to P.W.17 (Ext.33) to make a requisition of the
Executive Magistrate. Since P.W.19 in his evidence
submitted that he got the information at 3.40 P.M from
P.W.7 to make requisition of the Executive Magistrate,
as the accused persons went to be searched before him,
the Command Certificate by P.W.19 in making the
requisition at 3.30. P.M could not have been done.
4.19. It is also contended that P.W.17 in his cross-
examination clearly acknowledged that the Command
Certificate, so issued by P.W.19, though was produced
in the Office of S.D.M, Panposh vide Ext.3, but no such
signature acknowledging the same was taken, while
making such a requisition. P.W.17 in para-6 of the
deposition also admitted that while taking the Command
Certificate from P.W.19, he has not put his signature on
the Issue Register. It is also admitted that no staff from
the office of S.D.M, Panposh was examined, to show that
the Command Certificate was in fact received in the
// 24 //
office of S.D.M. Panposh. From the aforesaid statement
of P.W.19 vis-à-vis P.W.17, it clearly shows that the
Executive Magistrate never remained present at the spot
and no such requisition was ever sent to the Executive
Magistrate to be at the spot and everything has been
manipulated, subsequently. Statement of P.W.17 in his
cross-examination in para-6 reads as follows:
6. It is a fact that Issue Register is maintained at
the police station. I have not put my signature on
the said Register at the time of receiving the letters
carrying the information and the requisition for
deputation of an Executive Magistrate, before I
proceeded to the Office of SDPO, SP, Rourkela and
SDM, Panposh. It is a fact that behind Ext.33, I
have stated in writing that I returned back from the
spot to the police station with the police staff and
the Executive Magistrate proceeded on his own.
4.20. It is also contended that P.W.15 who happens
to be the weighman in his deposition clearly stated
that, by the time he reached the spot, he saw the
vehicle being surrounded by the Police staff and an
outsider, who is not a police staff. After his presence
near the spot, the bulk contraband was taken out of
the car and was weighed by him. But P.W.15 in his
statement nowhere mentioned that, while making such
weight of the bulk contraband, P.W.14 was present at
// 25 //
the spot. Similarly, P.W.4, who came to the spot at the
same time as that of P.W.14, in his evidence did not
make any mention that P.W.5 was present during
recovery and seizure. Similarly, P.W.15 in his evidence
submitted that by the time he reached the spot, he only
saw P.W.15 at the spot. P.W.15 in his cross-
examination also clearly admitted that he has not
provided any certificate to the I.O or the Inquiry Officer,
after completion of the search, seizure and sealing of
the contraband as well as the sample.
4.21. It is further contended that since the bulk
contraband as well as the samples were not seized in
presence of the Executive Magistrate and such
presence of the Executive Magistrate, in view of the
statement of P.W.15 vis-à-vis P.W.4 are doubtful, it is
to be held that the samples were never drawn at the
spot in presence of the P.W.14 and accordingly that
amounts to non-compliance of the statutory provision
contained under Section 52-A of the NDPS Act. From
the evidence of P.W.14, it can be safely inferred that,
// 26 //
Section 52-A of the Act was never followed. P.W.14 in
para-7 of his deposition has held as follows:
7. Thereafter the police started searching the
vehicle From inside the vehicle, no incriminating
materials or contraband were recovered From
the dickey of the car, two plastic bags were
recovered. On opening the first of the two plastic
bags, it was noticed that 44 small packets
wrapped with cello tape have been kept inside it
and each of the packets was weighing 1 kg. Four
to five packets out of those 44 packets were
taken for weighment and the weight of each of
the packet approximately came to be 1 kg.
Thereafter all the 44 packets were unwrapped
and the materials kept inside the said packets
were unloaded on a Dari. The contents of all the
44 packets were thereafter put inside a plastic
bag and thereafter it was weighed. The
weighment of the said bulk ganja came to be 44
kgs. From the said bulk ganja, two samples
weighing 25 grams each were brought out by the
police which were marked as original sample 1
and duplicate sample 1. Thereafter the bulk
ganja kept in the plastic bag was sealed in my
presence by stitching it and by use of wax.
Inside the said plastic bag after taking out the
samples, 43 kgs and 950 grams of ganja were
kept. This is my signature appearing over the
cloth used for packing the bulk ganja in the
plastic bag along with the endorsement "seizure
and sealing made in my presence" marked as
Ext. 11/3. The said cloth packet has already
been marked as MO V. This is my signature
appearing along with my designation seal over
the sample named "duplicate sample 1" marked
as Ext. 10/3. The said sample packet has
already been marked as MO IV.
4.22. It is contended that the discrepancy with
regard to the statement of P.W.14 so made in para-7, is
very much evident from his cross-examination in para-
12. Since it is a mandatory requirement that the
// 27 //
Executive Magistrate has to issue a Certificate
certifying the seizure and seal of the bulk contraband
as well as the samples, but in view of the statement of
P. Ws, it creates a serious doubt on the prosecution,
with regard to the seizure and preparation of the
samples with the seal. It is accordingly contended that
since statutory provision contained under Section 52-A
of the Act has not been followed, it cannot be held that
prosecution has proved the involvement of the
appellants, beyond all reasonable doubt. In support of
his submission, reliance was placed to the decisions of
the Hon'ble Apex Court reported in the case of Union
of India Vs. Mohanlal, (2016) 3 SCC 379 and Yusuf
Vs. State, (2024) 14 SCC 217.
4.23. Hon'ble Apex Court in the case of Mohanlal
in para- 15 of the said judgment has held as follows:
15. It is manifest from Section 52-A(2)(c)
(supra) that upon seizure of the contraband
the same has to be forwarded either to the
officer-in-charge of the nearest police station
or to the officer empowered under Section
53 who shall prepare an inventory as
stipulated in the said provision and make
an application to the Magistrate for
purposes of (a) certifying the correctness of
the inventory, (b) certifying photographs of
// 28 //
such drugs or substances taken before the
Magistrate as true, and (c) to draw
representative samples in the presence of
the Magistrate and certifying the
correctness of the list of samples so drawn.
4.24. Hon'ble Apex Court in the case of Yusuf in
para-11 to 16 of the said judgment has held as follows:
11. A simple reading of the aforesaid provisions,
as also stated earlier, reveals that when any
contraband/narcotic substance is seized and
forwarded to the police or to the officer so
mentioned under Section 53, the officer so referred
to in sub-section (1) shall prepare its inventory
with details and the description of the seized
substance like quality, quantity, mode of packing,
numbering and identifying marks and then make
an application to any Magistrate for the purposes
of certifying its correctness and for allowing to
draw representative samples of such substances
in the presence of the Magistrate and to certify the
correctness of the list of samples so drawn.
12. Notwithstanding the defence set up from the
side of the respondent in the instant case, no
evidence has been brought on record to the effect
that the procedure prescribed under sub-sections
(2), (3) and (4) of Section 52-A of the NDPS Act
was followed while making the seizure and
drawing sample such as preparing the inventory
and getting it certified by the Magistrate. No
evidence has also been brought on record that the
samples were drawn in the presence of the
Magistrate and the list of the samples so drawn
were certified by the Magistrate. The mere fact
that the samples were drawn in the presence of a
gazetted officer is not sufficient compliance of the
mandate of sub-section (2) of Section 52-A of the
NDPS Act.
13. It is an admitted position on record that the
samples from the seized substance were drawn
// 29 //
by the police in the presence of the gazetted officer
and not in the presence of the Magistrate. There is
no material on record to prove that the Magistrate
had certified the inventory of the substance seized
or of the list of samples so drawn.
14. In Mohanlal [Union of India v. Mohanlal,
(2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864] case,
the Supreme Court while dealing with Section 52-
A of the NDPS Act clearly laid down that it is
manifest from the said provision that upon seizure
of the contraband, it has to be forwarded either to
the officer-in-charge of the nearest police station or
to the officer empowered under Section 53 who is
obliged to prepare an inventory of the seized
contraband and then to make an application to
the Magistrate for the purposes of getting its
correctness certified. It has been further laid down
that the samples drawn in the presence of the
Magistrate and the list thereof on being certified
alone would constitute primary evidence for the
purposes of the trial.
15. In the absence of any material on record to
establish that the samples of the seized
contraband were drawn in the presence of the
Magistrate and that the inventory of the seized
contraband was duly certified by the Magistrate,
it is apparent that the said seized contraband and
the samples drawn therefrom would not be a
valid piece of primary evidence in the trial. Once
there is no primary evidence available, the trial as
a whole stands vitiated.
16. Accordingly, we are of the opinion that the
failure of the authorities concerned to lead
primary evidence vitiates the conviction and as
such in our opinion, the conviction of the appellant
deserves to be set aside. The impugned judgment
and order [Yusuf v. State, 2022 SCC OnLine Mad
4810] of the High Court as well as the trial court
// 30 //
convicting the appellant and sentencing him to
rigorous imprisonment of 10 years with fine of Rs
1 lakh and in default of payment of fine to
undergo further imprisonment of one year is
hereby set aside.
4.25. Learned counsel appearing for the appellants
also made further submission contending inter alia
that since there are discrepancies in the statement of
the official witnesses, because of such discrepancy,
evidence laid by the prosecution through the P.Ws.
could not have been accepted by the learned Special
Judge while holding the appellants guilty of the
charges.
4.26. It is contended that P.W.7 in para-27 of his
cross-examination since contended that he was going
through the seizing and sealing procedure till 7 P.M on
12.11.2019, it clearly proves that he had not gone back
from the spot to the Police Station, with lodging of the
F.I.R at 7.15 P.M. Not only that P.W.7 in his cross-
examination examination in para-27 though submitted
that he was in the spot till about 7 P.M. on 12.11.2019,
but P.W.16 who happens to be the driver of the Police
vehicle in para-9 of his deposition submitted that they
// 31 //
returned to the Police Station by 5 P.M on the date of
occurrence. Not only that, even though P.W.19 in para-
7 of his deposition contended that P.W.7 returned to the
Police Station at 7.15 P.M, but in the seizure memo so
prepared under Ext.50, P.W.19 reflected the time of
seizure at 6.40 P.M on 12.11.2019. It is accordingly
contended that in view of such statement of P.W.7 vis-à-
vis P.W.16 and P.W.19, there is serious doubt as to at
what time, the seized contraband along with the sample
were brought to the Police Station.
4.27. It is also contended that P.W.7 in his
deposition in para-6 though admitted that when he
stopped the car on 12.11.2019, he found 2(two) persons
sitting in the front seat and one person sitting in the
back, but P.W.1 who had accompanied P.W.7 in the
police vehicle, in para-5 submitted that he saw one
person sitting on the front and 2(two) persons in the
back side. Not only that, P.W.7 in para-6 of his
deposition though contended that the offending vehicle
with all the 3 (three) appellants were intercepted at
Ruptala Chowk, however the car driver of the police
// 32 //
vehicle bearing Regd. No. OD-05-E 6631 so exhibited
vide Ext.31, clearly shows that the vehicle had only gone
up to Hockey Chowk and back to the Police Station.
P.W.17, who is another Constable accompanying the
seizure party, in his cross-examination in para-8 also
contended that the distance between Hockey Chowk and
Ruptala Chowk is around 500 metres. It is accordingly
contended that there is also doubt as to whether the
offending vehicle was intercepted at Ruptala Chowk.
4.28. It is also contended that even though P.W.7 in
para-5 of his deposition submitted that he called 2(two)
independent witnesses, while proceeding to the spot,
prior to detention of the offending vehicle, but P.W.13
who happens to be another Constable accompanying the
police vehicle in para-4 of his deposition contended that,
P.W.19 requisitioned the Executive Magistrate and
2(two) independent witnesses to the spot.
4.29. Even though P.W.14 in para-11 of his
deposition made a statement that the contraband
articles were weighed 4(four) times, but P.W.15, who is
the weighman, in para-18 of his cross-examination,
// 33 //
submitted that the contraband articles were weighed
2(two) times. Not only that, P.W.1 who is a member of
the police party, in para-19 of his cross-examination
submitted that the contraband were weighed 6(six)
times. But such discrepancy in the statement of P.W.14,
P.W.19 and P.W.1 was not taken into consideration by
the learned Special Judge.
4.30. It is also contended that since conscious
possession of the contraband, has not been proved
conclusively against the appellant and no evidence
having been laid that the appellants had any connection
with the co-accused persons, benefit of doubt should go
in favour of the appellants. In support of the aforesaid
submission, reliance was placed to a decision of the
Hon'ble Apex Court reported in Avtar Singh & Others
Vs. State of Punjab, (2002) 7 SCC 419. Hon'ble Apex
Court in the said judgment in paragraph-6 has held as
follows:
6. Possession is the core ingredient to be
established before the accused in the instant
case are subjected to the punishment under
Section 15. If the accused are found to be in
possession of poppy straw which is a narcotic
drug within the meaning of clause (xiv) of Section
// 34 //
2, it is for them to account for such possession
satisfactorily; if not, the presumption under
Section 54 comes into play. We need not go into
the aspect whether the possession must be
conscious possession. Perhaps taking a cue from
the decision of this Court in Inder Sain v. State of
Punjab [(1973) 2 SCC 372: 1973 SCC (Cri) 813]
arising under the Opium Act, the learned trial
Judge charged the accused of having conscious
possession of poppy husk. Assuming that poppy
husk comes within the expression poppy straw,
the question, however, remains whether the
prosecution satisfactorily proved the fact that the
accused were in possession of poppy husk.
Accepting the evidence of PW 4, the Head
Constable, it is seen that Appellant 3 (Accused 4)
was driving the vehicle loaded with bags of
poppy husk. Appellants 1 and 2 (Accused 1 and
2) were sitting on the bags placed in the truck.
As soon as the vehicle was stopped by ASI (PW
2), one person sitting in the cabin by the side of
the driver and another person sitting in the back
of the truck fled. No investigation has been
directed to ascertain the role played by each of
the accused and the nexus between the accused
and the offending goods. The word "possession"
no doubt has different shades of meaning and it
is quite elastic in its connotation. Possession and
ownership need not always go together but the
minimum requisite element which has to be
satisfied is custody or control over the goods.
Can it be said, on the basis of the evidence
available on record, that the three appellants --
one of whom was driving the vehicle and the
other two sitting on the bags, were having such
custody or control? It is difficult to reach such
conclusion beyond reasonable doubt. It
transpires from the evidence that the appellants
were not the only occupants of the vehicle. One
of the persons who was sitting in the cabin and
another person sitting at the back of the truck
made themselves scarce after seeing the police
and the prosecution could not establish their
identity. It is quite probable that one of them
could be the custodian of the goods whether or
not he was the proprietor. The persons who were
merely sitting on the bags, in the absence of
proof of anything more, cannot be presumed to
be in possession of the goods. For instance, if
// 35 //
they are labourers engaged merely for loading
and unloading purposes and there is nothing to
show that the goods were at least in their
temporary custody, conviction under Section 15
may not be warranted. At best, they may be
abettors, but there is no such charge here. True,
their silence and failure to explain the
circumstances in which they were travelling in
the vehicle at the odd hours, is one strong
circumstance that can be put against them. A
case of drawing presumption under Section 114
of the Evidence Act could perhaps be made out
then to prove the possession of the accused, but
the fact remains that in the course of
examination under Section 313 CrPC, not even a
question was asked that they were the persons
in possession of poppy husk placed in the
vehicle. The only question put to them was that
as per the prosecution evidence, they were
sitting on the bags of poppy husk. Strangely
enough, even the driver was questioned on the
same lines. The object of examination under
Section 313, it is well known, is to afford an
opportunity to the accused to explain the
circumstances appearing in the evidence against
him. It is unfortunate that no question was
asked about the possession of goods. Having
regard to the charge of which the appellants
were accused, the failure to elicit their answer on
such a crucial aspect as possession, is quite
significant. In this state of things, it is not proper
to raise a presumption under Section 114 of the
Evidence Act nor is it safe to conclude that the
prosecution established beyond reasonable
doubt that the appellants were in possession of
poppy husk which was being carried by the
vehicle. The High Court resorted to the
presumption under Section 35 which relates to
culpable state of mind, without considering the
aspect of possession. The trial court invoked the
presumption under Section 54 of the Act without
addressing itself to the question of possession.
The approach of both the courts is erroneous in
law. Both the courts rested their conclusion on
the fact that the accused failed to give
satisfactory explanation for travelling in the
vehicle containing poppy husk at an odd hour.
But the other relevant aspects pointed out above
were neither adverted to nor taken into account
// 36 //
by the trial court and the High Court. Non-
application of mind to the material factors has
thus vitiated the judgment under appeal.
4.31. A further submission was also made that
since during cross-examination of the appellants under
Section 313 Cr.P.C, no specific question was put as to
whether the contraband was seized from their
conscious possession, in absence of any such
questions being put to the appellants, which is a
mandatory requirement, violation of the same entails
benefit in favour of the accused persons. Reliance was
placed to a decision of the Hon'ble Apex Court in the
case of State of Punjab Vs. Hari Singh & Others,
(2009) 4 SCC 200. Hon'ble Apex Court in the case of
Hari Singh in paragraph-16 to 27 has held as follows:
16. In the present case, though, there was
evidence regarding conscious possession, but,
unfortunately, no question relating to possession,
much less conscious possession was put to the
accused under Section 313 CrPC. The
questioning under Section 313 CrPC is not an
empty formality.
17. "7. A few decisions of this Court need to be
noticed in this context.
8. In Bibhuti Bhusan Das Gupta v. State of
W.B. [AIR 1969 SC 381] this Court held that the
pleader cannot represent the accused for the
// 37 //
purpose of Section 342 of the Code of Criminal
Procedure, 1898 (hereinafter referred to as 'the
old Code') which is presently Section 313 CrPC.
9. Section 313 CrPC reads as follows:
'313. Power to examine the accused. -- (1) In
every inquiry or trial, for the purpose of enabling
the accused personally to explain any
circumstances appearing in the evidence against
him, the court--
(a) may at any stage, without previously warning
the accused, put such questions to him as the
court considers necessary.
(b) Shall, after the witnesses for the prosecution
have been examined and before he is called on
for his defence, question him generally on the
case:
Provided that in a summons case, where the
court has dispensed with the personal
attendance of the accused, it may also dispense
with his examination under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such
questions, or by giving false answers to them.
(4) The answers given by the accused may be
taken into consideration in such inquiry or trial
and put in evidence for or against him in any
other inquiry into, or trial for, any other offence
which such answers may tend to show he has
committed.'
10. '9. The forerunner of the said provision in the
[old Code] was Section 342 therein. It was
worded thus:
"342. Power to examine the accused.--(1) For the
purpose of enabling the accused to explain any
circumstances appearing in the evidence against
// 38 //
him, the court may, at any stage of any inquiry
or trial, without previously warning the accused,
put such questions to him as the court considers
necessary, and shall, for the purpose aforesaid,
question him generally on the case after the
witnesses for the prosecution have been
examined and before he is called on for his
defence.
(2) The accused shall not render himself liable to
punishment by refusing to answer such
questions, or by giving false answers to them;
but the court and the jury (if any) may draw
such inference from such refusal or answers as
it thinks just.
(3) The answers given by the accused may be
taken into consideration in such inquiry or trial
and put in evidence for or against him in any
other inquiry into, or trial for, any other offence
which such answers may tend to show he has
committed.
(4) No oath shall be administered to the accused
when he is examined under sub-section (1)."
10. Dealing with the position as the section
remained in the original form under the old Code,
a three-Judge Bench of this Court (Fazal Ali,
Mahajan and Bose, JJ.) interpreted the section
in Hate Singh Bhagat Singh v. State of Madhya
Bharat [1951 SCC 1060: AIR 1953 SC 468] that:
(AIR p. 470, para 8)
"8. ... The statements of the accused
recorded by the committing Magistrate
and the Sessions Judge are intended in India
to take the place of what in England and in
America he would be free to state in his own
way in the witness box. They have to be received
in evidence and treated as evidence and be duly
considered at the trial."
// 39 //
11. Parliament, thereafter, introduced Section
342-A in the old Code (which corresponds to
Section 315 of the present Code) by which
permission is given to an accused to offer himself
to be examined as a witness if he so chose.
12. In Bibhuti Bhusan Das Gupta case [AIR 1969
SC 381] another three-Judge Bench ... dealing
with the combined operation of Sections 342 and
342-A of the old Code made the following
observations: (AIR p. 384, para 7)
"7. ... Under Section 342-A only the accused can
give evidence in person and his pleader's
evidence cannot be treated as his. The answer of
the accused under Section 342 is intended to be
a substitute for the evidence which he can give
as a witness under Section 342-A. The privilege
and the duty of answering questions under
Section 342 cannot be delegated to a pleader. No
doubt the form of the summons shows that the
pleader may answer the charges against the
accused, but in so answering the charges, he
cannot do what only the accused can do
personally. The pleader may be permitted to
represent the accused while the prosecution
evidence is being taken. But at the close of the
prosecution evidence the accused must be
questioned, and his pleader cannot be examined
in his place."
13. The Law Commission in its Forty-first Report
considered the aforesaid decisions and also
various other points of view highlighted by legal
men and then made the report after reaching the
conclusion that:
(i) in summons cases where the personal
attendance of the accused has been dispensed
with, either under Section 205 or under Section
540-A, the court should have a power to
dispense with his examination; and
// 40 //
(ii) in other cases, even where his personal
attendance has been dispensed with, the
accused should be examined personally.
14. The said recommendation has been followed
up by Parliament and Section 313 of the Code,
as is presently worded, is the result of it. It
would appear prima facie that the court has
discretion to dispense with the physical presence
of an accused during such questioning only in
summons cases and in all other cases it is
incumbent on the court to question the accused
personally after closing prosecution evidence.
Nonetheless, the Law Commission was
conscious that the rule may have to be relaxed
eventually, particularly when there is
improvement in literacy and legal aid facilities in
the country. This thinking can be discerned from
the following suggestion made by the Law
Commission in the same report:
"24.45. Section 342 should be retained. --We
have, after considering the various aspects of the
matter as summarized above, come to the
conclusion that Section 342 should not be
deleted. In our opinion, the stage has not yet
come for it being removed from the statute book.
With further increase in literacy and with better
facilities for legal aid, it may be possible to take
that step in the future."
15. The position has to be considered in the
present set up, particularly after the lapse of
more than a quarter of a century through which
period revolutionary changes in the technology of
communication and transmission have taken
place, thanks to the advent of computerization.
There is marked improvement in the facilities for
legal aid in the country during the preceding
twenty-five years. Hence a fresh look can be
made now. We are mindful of the fact that a two-
// 41 //
Judge Bench in Usha K. Pillai [Usha K.
Pillai v. Raj K. Srinivas, (1993) 3 SCC 208: 1993
SCC (Cri) 824] has found that the examination of
an accused personally can be dispensed with
only in summons case. Their Lordships were
considering a case where the offence involved
was Section 363 IPC. The two-Judge Bench held
thus: (SCC pp. 212-13, para 4)
"4. ... A warrant case is defined as one relating
to an offence punishable with death,
imprisonment for life or imprisonment for a term
exceeding two years. Since an offence under
Section 363 IPC is punishable with imprisonment
for a term exceeding two years it is a warrant
case and not a summons case. Therefore, even
in cases where the court has dispensed with the
personal attendance of the accused under
Section 205(1) or Section 317 of the Code, the
court cannot dispense with the examination of
the accused under clause (b) of Section 313 of
the Code because such examination is
mandatory."
16. Contextually we cannot bypass the decision
of a three-Judge Bench of this Court in Shivaji
Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri)
1033] as the Bench has widened the sweep of
the provision concerning examination of the
accused after closing prosecution evidence.
Learned Judges in that case were considering
the fallout of omission to put to the accused a
question on a vital circumstance appearing
against him in the prosecution evidence. The
three-Judge Bench made the following
observations therein: (SCC p. 806, para 16)
"16. ... It is trite law, nevertheless fundamental,
that the prisoner's attention should be drawn to
every inculpatory material so as to enable him to
// 42 //
explain it. This is the basic fairness of a criminal
trial and failures in this area may gravely imperil
the validity of the trial itself, if consequential
miscarriage of justice has flowed. However,
where such an omission has occurred it does not
ipso facto vitiate the proceedings and prejudice
occasioned by such defect must be established
by the accused. In the event of evidentiary
material not being put to the accused, the court
must ordinarily eschew such material from
consideration. It is also open to the appellate
court to call upon the counsel for the accused to
show what explanation the accused has as
regards the circumstances established against
him but not put to him and if the accused is
unable to offer the appellate court any plausible
or reasonable explanation of such circumstances,
the court may assume that no acceptable answer
exists and that even if the accused had been
questioned at the proper time in the trial court he
would not have been able to furnish any good
ground to get out of the circumstances on which
the trial court had relied for its conviction."
17. The above approach shows that some
dilution of the rigour of the provision can be
made even in the light of a contention raised by
the accused that non-questioning him on a vital
circumstance by the trial court has caused
prejudice to him. The explanation offered by the
counsel of the accused at the appellate stage
was held to be a sufficient substitute for the
answers given by the accused himself.
18. What is the object of examination of an
accused under Section 313 of the Code? The
section itself declares the object in explicit
language that it is "for the purpose of enabling
the accused personally to explain any
circumstances appearing in the evidence against
// 43 //
him". In Jai Dev v. State of Punjab [AIR 1963 SC
612] Gajendragadkar, J. (as he then was)
speaking for a three-Judge Bench has focused
on the ultimate test in determining whether the
provision has been fairly complied with. He
observed thus: (AIR p. 620, para 21)
"21. ... The ultimate test in determining whether
or not the accused has been fairly examined
under Section 342 would be to inquire whether,
having regard to all the questions put to him, he
did get an opportunity to say what he wanted to
say in respect of prosecution case against him. If
it appears that the examination of the accused
person was defective and thereby a prejudice
has been caused to him that would no doubt be
a serious infirmity."
19. Thus, it is well settled that the provision is
mainly intended to benefit the accused and as
its corollary to benefit the court in reaching the
final conclusion.
20. At the same time, it should be borne in mind
that the provision is not intended to nail him to
any position, but to comply with the most
salutary principle of natural justice enshrined in
the maxim Audi alteram partem. The word "may"
in clause (a) of sub-section (1) in Section 313 of
the Code indicates, without any doubt, that even
if the court does not put any question under that
clause the accused cannot raise any grievance
for it. But if the court fails to put the needed
question under clause (b) of the sub-section it
would result in a handicap to the accused and
he can legitimately claim that no evidence,
without affording him the opportunity to explain,
can be used against him. It is now well settled
that a circumstance about which the accused
was not asked to explain cannot be used against
him.
// 44 //
21. But the situation to be considered now is
whether, with the revolutionary change in
technology of communication and transmission
and the marked improvement in facilities for
legal aid in the country, is it necessary that in all
cases the accused must answer by personally
remaining present in court. We clarify that this is
the requirement and would be the general rule.
However, if remaining present involves undue
hardship and large expense, could the court not
alleviate the difficulties. If the court holds the
view that the situation in which he made such a
plea is genuine, should the court say that he has
no escape, but he must undergo all the
tribulations and hardships and answer such
questions personally presenting himself in court.
If there are other accused in the same case, and
the court has already completed their
questioning, should they too wait for long
without their case reaching finality, or without
registering further progress of their trial until
their co-accused is able to attend the court
personally and answer the court questions? Why
should a criminal court be rendered helpless in
such a situation?
22. The one category of offences which is
specifically exempted from the rigour of Section
313(1)(b) of the Code is "summons cases". It
must be remembered that every case in which
the offence triable is punishable with
imprisonment for a term not exceeding two years
is a "summons case". Thus, all other offences
generally belong to a different category
altogether among which are included offences
punishable with varying sentences from
imprisonment for three years up to imprisonment
for life and even right up to death penalty. Hence
there are several offences in that category which
// 45 //
are far less serious in gravity compared with
grave and very grave offences. Even in cases
involving less serious offences, can the court not
extend a helping hand to an accused who is
placed in a predicament deserving such a help?
23. Section 243(1) of the Code enables the
accused, who is involved in the trial of warrant
case instituted on police report, to put in any
written statement. When any such statement is
filed, the court is obliged to make it part of the
record of the case. Even if such case is not
instituted on police report the accused has the
same right (vide Section 247). Even the accused
involved in offences exclusively triable by the
Court of Session can also exercise such a right to
put in written statements [Section 233(2) of the
Code]. It is common knowledge that most of such
written statements, if not all, are prepared by the
counsel for the accused. If such written
statements can be treated as statements directly
emanating from the accused, hook, line and
sinker, why not the answers given by him in the
manner set out hereinafter, in special
contingencies, be afforded the same worth.
24. We think that a pragmatic and humanistic
approach is warranted in regard to such special
exigencies. The word "shall" in clause (b) to
Section 313(1) of the Code is to be interpreted as
obligatory on the court and it should be complied
with when it is for the benefit of the accused. But
if it works to his great prejudice and
disadvantage the court should, in appropriate
cases e.g. if the accused satisfies the court that
he is unable to reach the venue of the court,
except by bearing huge expenditure or that he is
unable to travel the long journey due to physical
incapacity or some such other hardship, relieve
him of such hardship and at the same time
// 46 //
adopt a measure to comply with the
requirements in Section 313 of the Code in a
substantial manner. How could this be
achieved?
25. If the accused (who is already exempted
from personally appearing in the court) makes an
application to the court praying that he may be
allowed to answer the questions without making
his physical presence in court on account of
justifying exigency the court can pass
appropriate orders thereon, provided such
application is accompanied by an affidavit sworn
to by the accused himself containing the
following matters:
(a) A narration of facts to satisfy the court of his
real difficulties to be physically present in court
for giving such answers.
(b) An assurance that no prejudice would be
caused to him, in any manner, by dispensing
with his personal presence during such
questioning.
(c) An undertaking that he would not raise any
grievance on that score at any stage of the case.
26. If the court is satisfied of the genuineness of
the statements made by the accused in the said
application and affidavit it is open to the court to
supply the questionnaire to his advocate
(containing the questions which the court might
put to him under Section 313 of the Code) and fix
the time within which the same has to be
returned duly answered by the accused together
with a properly authenticated affidavit that those
answers were given by the accused himself. He
should affix his signature on all the sheets of the
answered questionnaire. However, if he does not
wish to give any answer to any of the questions,
he is free to indicate that fact at the appropriate
place in the questionnaire (as a matter of
// 47 //
precaution the court may keep photocopy or
carbon copy of the questionnaire before it is
supplied to the accused for an answer). If the
accused fails to return the questionnaire duly
answered as aforesaid within the time or
extended time granted by the court, he shall
forfeit his right to seek personal exemption from
court during such questioning. [The court has
also to ensure that the imaginative response of
the counsel is intended to be availed to be a
substitute for taking statement of the accused.]
27. In our opinion, if the above course is adopted
in exceptional exigency, it would not violate the
legislative intent envisaged in Section 313 of the
Code.'
The above position was indicated in Basavaraj
R. Patil v. State of Karnataka [(2000) 8 SCC 740:
2001 SCC (Cri) 87] , SCC pp. 749-54, paras 9-27.
11. It is true that in Chandu Lal Chandraker
case [Chandu Lal Chandraker v. Puran Mal,
1988 Supp SCC 570: 1988 SCC (Cri) 907] two
Hon'ble Judges have taken a view supporting
that of the appellant. It appears that in the said
case no reference was made to Bibhuti Bhusan
Das Gupta case [AIR 1969 SC 381].
12. Judged in the background of principles set
out in Basavaraj R. Patil case [(2000) 8 SCC 740:
2001 SCC (Cri) 87] the inevitable conclusion is
that the High Court's impugned order does not
suffer from any infirmity to warrant
interference." [Ed. : As observed in Keya
Mukherjee v. Magma Leasing Ltd., (2008) 8 SCC
447, pp. 449-55, paras 7-12.]
18. When the accused was examined under
Section 313 CrPC, the essence of accusation was
not brought to his notice, more particularly, that
possession aspect, as was observed by this
Court in Avtar Singh v. State of Punjab [(2002) 7
// 48 //
SCC 419: 2002 SCC (Cri) 1769]. The effect of
such omission vitally affects the prosecution
case.
4.32. Making all these submissions, learned
counsel appearing for the appellants contended that
since there is serious doubt with regard to seizure of the
contraband from the conscious possession of the
appellants, conduct of the investigation and discrepancy
in the evidence of the P.Ws, on the face of such
materials being available, learned Special Court should
not have held the appellants guilty of the charges of the
offence under Section 20(b( (ii) (C ) of the NDPS Act, r/w
Section 29 of the said Act. It is accordingly contended
that the appellants have been wrongly convicted and
sentenced vide the impugned judgment dt.16.08.2021
and the same requires interference of this Court.
5. Mr. C.K. Pradhan learned Addl. Govt. Advocate on
the other hand made his submission in support of the
impugned judgment. It is contended that the plea
raised by the appellants with regard to the brass seal
having not been produced at the time of production of
the contraband with proper sealing of the bulk
// 49 //
contraband as well as the samples and because of such
non-compliance, appellants are not to be held guilty of
the charges, so raised by the appellants, has been
properly dealt with by the learned Additional Sessions
Judge in para-70, 71, 73 & 74 of the judgment.
5.1. It is contended that since such a plea raised by the
accused persons has been dealt with by the learned
Addl. Sessions Judge, the plea so taken by the
appellants in the present appeals cannot be accepted. It
is also contended that non-compliance of the statutory
provision contained under Section 52-A of the Act has
also been dealt with by the learned Special Judge in
Paragraphs 64,65,70,71,73, & 74 of the judgment reads
as follows:
64. PW 14 has also deposed that the after the bulk ganja
were kept back in the plastic gunny bags, the same were
sealed in his presence by stitching it and by use of wax.
He further deposed that after the sealing was made, he
had signed over the clothes used for packing the bulk
ganja in the plastic bags and hand given an endorsement
that seizure and sealing made in my presence. He also
deposed that samples which were drawn before him were
also sealed and packed before him. During his
examination in the Court, the bulk ganja and samples
packets were produced in the Court and he identified his
signatures on the said bulk ganja packets and the
samples packets. It was also noticed that the endorsement
given by him also appeared therein. Therefore, the
evidence of PW 14 fully corroborates the evidence of PW 7
with regard to packing and sealing of seized bulk ganja
// 50 //
and also the sample packets. In course of his cross-
examination, it was elicited from him that he had not
issued any certificate to PW 7 or the IO with regard to
search, seizure and sealing on the date of occurrence.
Admittedly, from the evidence on record, it can be said that
no such certificate has been issued. But, it may humbly be
noted here that, PW 14 has given endorsement over the
bulk ganja packets, which were also produced in the
Court, that seizure and sealing was done in his presence
and thereafter has put his signatures. The seizure list
marked as Ext. 15/1 by which the bulk ganja, sample
packets and other articles were seized carries an
endorsement given by PW 14 that seizure has been done
in his presence and signatures. On perusal of the sample
packets which were drawn by PW 7 and were produced
before the Court as material objects, clearly mentions the
place of drawal of samples, the quantity of sample that
was drawn and the name of Signatures of the independent
witnesses, PW 14 and PW 7 finds place over the sample
packets. True it is that no separate certificate has been
issued by PW 14, but he has given endorsement over the
seized bulk ganja that the seizure and sealing done in his
presence and the signed it. Similarly over the seizure list
under Ext. 15/1 he has given endorsement in respect of
seizure done in his presence. Lastly, the sample packets
drawn at the spot and so also the bulk ganja packets
states the quantity of ganja, the names of the witnesses
and the place of seizure and drawal over the packets.
Although no separate weighment chart has been prepared,
but over the material objects containing bulk ganja and
sample packets, the quantity of ganja has clearly been
mentioned. Therefore, such non giving of separate
certificate by PW 14 will not affect the case of the
prosecution.
65. It has also been argued that presence of PW 14 at the
spot is doubtful. In order to drive the said point to home,
the learned defense counsel has pointed that while PW 15
the weighman has deposed that ganja was weighed twice,
PW 14 has stated the ganja was weighed four times.
Admittedly, there is a discrepancy in the evidence of both
these witnesses regarding how many times, the ganja was
weighed. But then, as noted above, PW 14 in his evidence
has categorically deposed that he received an order from
SDM, Panposh to proceed to the spot of the occurrence. The
said written order of SDM, Panposh has been marked as
Ext. 29. As noted above, on reading of the said letter it
transpires that such order of deputing PW 14 to the spot
was passed in response to the requisition of PW 19
requesting SDM, Panposh for deputation of an Executive
Magistrate to the spot to witness search and seizure. The
evidence of PW 14 is that he proceeded to the spot along
with a police staff. PW 17 in his evidence has deposed that
he had accompanied PW 14 to the Spot. In that regard,
// 51 //
after returning to the office, he had reported the said fact
in the reverse side of the command certificate that was
issued to him in Ext. 33. Under Section 114(e) of the
Evidence Act, the Court is to presume that the judicial and
official acts have been performed regularly. The
prosecution in order to raise such presumption has not
only examined witnesses but also has proved certain
documents which has never been challenged by the
accused persons. The document by which PW 14 was
directed to proceed to the spot is an official correspondence
and the veracity of the said document or the contents of
such document has never been challenged. Under such
circumstances, it is difficult to accept the contention of the
learned counsel for the accused persons that the presence
of PW 14 at the spot at the time of search, seizure and
sealing is doubtful.
xxx xxx xxx
70. It has been argued on behalf of the defense that the
specimen of the brass seal impression was not produced
before the SDJM for verification. Further, the evidence of
PW 6 makes it doubtful that the brass seal which was
used for sealing, actually was handed over to him on the
date of occurrence. Further, there is no cogent evidence
that, the seized contrabands were kept in safe custody
after it was taken to police-station. It is the settled
principle of law that prosecution is required to prove proper
sealing of seized materials and completely eliminate
chances of tampering with such article during retention by
the investigating agency. The burden of proof of entire path
of the journey of the articles from the point of seizure till its
arrival before chemical examiner has to be proved by
adducing cogent, reliable and unimpeachable evidence.
71. PW 7 has deposed to have prepared test memo at the
spot in respect of the samples drawn in which he
mentioned the total quantity recovered, quantity of sample
drawn and had obtained the signatures of PW 6, PW 9
and PW 14 over it and the same also contains the
impression of his brass seal. However, it was admitted by
PW 7 that he has not prepared the same in duplicate and
a copy of copy is available inside the sample packet. It has
also been admitted by PW 7 that he has not taken
specimen impression of the brass seal that was used in
the instant case for sealing the contraband articles on a
plain paper. Therefore, on/reading of the evidence of PW 7
it is apparent that while preparing test KELAKRO mos in
respect of the samples drawn from both the bags he has
put the seal impression over the same. As discussed
above, from each of the bags two samples were drawn.
While, the sample drawn from MO IV, has been marked as
Original Sample I and Duplicate Sample 1, the sample
drawn from MO II was marked as Original Sample 2 and
// 52 //
Duplicate Sample 2. It is the evidence of PW 7 and all other
official witnesses that bulk ganja as well as the samples
2024 drawn were sealed. PW 7 has deposed that he used
his own brass seal to seal the seized articles as well as
the sample packets. PW 7 has also deposed that after
using the brass seal he had handed over it to PW 6 on
execution of a zimanama with a direction that he will
produce the same as and when called upon by the Court.
Such zimanama was marked as Ext. 16. PW 6 in course of
trial, produced the brass seal before the Court and such
brass seal was marked as MO-VII. The brass seal at the
time when it was produced before the Court was kept
inside a polythene packet. The said witness also deposed
that he executed the zimanama marked as Ext. 16.
However, in his cross-examination, it was deposed by him
that he was handed over the brass seal on the date he
came to depose evidence after receiving summons in the
present case. Therefore, it appears that there is a
discrepancy as to handing over the brass seal to PW 6 on
the date of occurrence at the spot. On perusal of Ext. 16, it
appears that the said document has been signed by PW 6.
Further, in the contents of such Ext. 16, it has been stated
that zimadar had received the brass seal from PW 7. It
may be noted here that, the zimanama when was
adduced as evidence in the Court, has never been
objected. It is not the evidence of PW 6 that he had not
executed the zimanama. It is also not in dispute that such
PW 6 is a literate person and there is no evidence to show
that he cannot read or understand English language.
Infact PW 6 in his evidence has never disputed the
contents of such Ext. 16. Nothing has been elicited from
him that when he signed the zimanama, he did not know
the contents of the said document. Rather, on perusal of
Ext. 16, it is forthcoming that he had received the brass
seal upon handed over by PW 7 and undertook to produce
it before the Court. As noted above, PW 7 has categorically
deposed that on 12.11.2019, at the spot he had executed
the zimanama in favour of PW 6. This fact has also not
been disputed by the accused persons. On the other hand,
PW 6 in course of his cross-examination by the prosecution
has deposed that on the date of occurrence, he had
accompanied PW 7 and other police staffs to the spot
where the vehicle has detained. When the cross-
examination of PW 7 is seen, it is apparent that nothing
has been elicited from him that the zimanama under Ext.
16 was not executed at the spot. His evidence in respect of
the fact that he handed over the brass seal to PW 6 at the
spot has not been challenged in any mariner. Except a
suggestion that PW 6 was given the brass seal on the date
when he came to Court for rendering his evidence, nothing
else has been elicited from PW ? to show that the said
brass seal was actually not handed over to such PW 6.
Nothing has been elicited from PW 6, in course of cross-
examination to show that he was coerced, threatened or
// 53 //
pressurized to sign Ext. 16. Therefore, under such
circumstances it is difficult to accept that PW 6 who is a
literate person although executed the zimanama was not
handed over the brass seal by PW 7. The evidence of PW 6
that he was handed over the brass seal on the date he
came to give deposition in the Court is not believable in
view of the oral evidence of PW 7 and the documentary
evidence under Ext. 16 wherein it has been acknowledged
by PW 6 that he had received the brass seal in zima.
xxx xxx xxx
73. PW 13 has deposed that on 13.11.2019, he forwarded
all the accused persons arrested till that date to the
Special Court. At the time of producing the accused
persons before the Court, the two packets of bulk ganja,
two envelopes containing sample ganja and a plastic bag
containing the empty wrappers collected from 78 packets.
The said fact has also ben entered in Station diary vide
SDE No. 10 dated 13.11.2019. Such SDE entry was
marked as Ext. 54 but with objection from the side of the
defense. It may be noted here that, the objection raised in
respect of manual station diary entries, have already been
dealt with in previous paragraphs. It was further deposed
that under Ext. 53 a prayer was made before the Court to
draw samples from the seized ganja and forward the
same for chemical examination. It is also the evidence of
PW 19 that on the same day, his prayer for drawal of
samples was allowed and he was directed to produced all
the bulk ganja and sample packets before the Learned
SDJM. Accordingly, he also produced the said seized
articles before the Leamed SDJM, Panposh on 13.11.2019
itself. Upon production, the Learned SDJM, drew two
samples from the bulk ganja packets each weighing 25
which were sealed by him. Thereafter the learned SDJM
forwarded the samples collected by the informant and the
samples drawn by him, to the chemical examiner by a
forwarding letter marked as Ext. 56. It is also the evidence
of PW 19 that, the bulk ganja in two packets, the two
envelopes containing sample deposited in the Court
Malkhana on 13.11.2019 vide CMR No. 33/2019 and such
Mal Challan in CMR No. 33/2019 was marked as Ext. 58.
PW 19 has also deposed that after the return of the escort
party from the Court, they handed him over Ext. 58 and
one sealed packet to be deposited at RFSL. It was then
deposed that since it was night by that time, the said
sealed exhibit was kept at Malkhana of the PS and to that
effect SDE No. 16 dated 13.11.2019 was made. The
sealed exhibit was kept after noting the said fact in
Malkhana register vide U entry no. 164/19.
74. On perusal of the Malkhana Register, it is apparent
that no separate entry has been made while the bulk
ganja and sample packets were taken out of the Malkhana
// 54 //
on 13.11.2019 for producing before the Court. But then on
perusal of Ext. 54, it is apparent that at 2:30 PM of
13.11.2015, the seized exhibits were brought out of the
Malkhana and were handed over to the escort party.
Therefore, although no separate entry in Malkhana register
with regard to bringing out of seized exhibits have been
made, but the said fact has been specifically noted in the
station diary. Now on perusal of the order sheet of the
present case, it is apparent that on 13.11.2019, the seized
articles and the accused persons were produced before the
Court on that day. Also the order sheet of the Court reveals
that on the same day, the IO was directed to produce the
seized exhibits before the Learned SDJM for drawl of
samples. The order sheet of the Learned SDJM, Panposh in
the part file which was opened pursuant to the order of the
Special Court, reveals that 13.11.2019, before him on the
same day, two sealed plastic bags were produced. It has
been noted by the leamed Magistrate that seal of the
plastic bags marked as Package No. 1 and Package No. 2
were broken in his presence and after opening each of the
packet. The said samples drawn by him were sealed. It is
also stated in the order sheet that after drawing of the
samples, the two plastic bags were again sealed in his
presence. It also appears that after the completion of the
process of drawl of samples, the two plastic gunny bags
carrying bulk ganja, samples Collected by the informant
marked, as duplicate sample no. 1 and duplicate sample
no. 2, two envelopes of the sample collected by the learned
Magistrate, one sealed envelope containing broken seals
and sealed packet containing white cloth was kept in the
Court Malkhana in CMR No. 33/2019. Therefore, from the
order sheet of this Court as well as that of the learned
Magistrate it appears that on 13.11.2019, not only the
seized articles were produced before the Special Court but
was also produced before the SDJM. The learned SDJM
has specifically noted that the sealed packets carrying
bulk ganja was broken by him which means by the time it
was produced before him it was in sealed condition.
Therefore, the order sheet of the learned Magistrate is
clear to the extent that he has not noticed any tampering
and that by the time it was produced before him, the same
were sealed condition. It is also forthcoming from the order
sheet of the learned Magistrate that the seized bulk ganja,
four envelopes containing samples drawn from the bulk
ganja of which two was drawn by PW 7 and two by the
learned Magistrate and the broken seals were deposited in
the Court Malkhana on 13.11.2019 itself. It is also
apparent that the other two packets of samples drawn by
him and PW 7 were directed to be produced before the
Chemical Examiner on 13.11.2019.
// 55 //
5.2. Learned Addl. Govt. Advocate also contended that
P.W.14 in para 8, 9 & 12 since has clearly proved the
seizure of the bulk contraband as well as the
preparation of the samples in his presence with due seal
being put on the same, such deposition of the P.W.14
cannot be brushed aside. Statement of P.W.14 in Para
8, 9 & 12 reads as follows:
8. Thereafter the second bag was opened. From
inside it, 34 packets were recovered. The entire
contents of the 34 packets were unloaded on the
Dari The said bulk materials were thereafter put
inside a plastic bag and was weighed. On
weighment, the weight of such bulk materials came
to be 34 kgs. From the said bulk ganja, two samples
weighing 25 grams each were brought out by the
police which were marked as original sample 2 and
duplicate sample 2. Thereafter the bulk ganja kept
in the plastic bag was sealed in my presence by
stitching it and by use of wax. Inside the said plastic
bag after taking out the samples, 33 kgs and 950
grams of ganja were kept. This is my signature
appearing over the cloth used for packing the bulk
ganja in the plastic bag along with the endorsement
"seizure and sealing made in my presence" marked
as Ext. 8/3. The said cloth packet has already been
marked as MO 1. This is my signature appearing
along with my designation seal over the sample
named "duplicate sample 1" marked as Ext 9/3. The
said sample packet has already been marked as MO
III. In both the packets, the independent witnesses
had also signed in my presence.
9. The police thereafter seized the Indigo ECS car,
the bulk ganja kept in both the packets, the
envelopes containing duplicate sample 1 and 2. one
envelope over which it was scribed secret drugs
samples/test memo", the Dari that was used in the
search and seizure process by preparing a seizure
list in presence of me. This is the said seizure list
// 56 //
already marked as Ext. 15/1 and this is my
signature appearing therein marked as Ext.15/3.
The said seizure was made at around 6.30 PM. In
all the seizure lists over which I have put my
signatures, the same were also signed by other
independent witnesses.
12. I cannot say if the Enquiry Officer had prepared
any document for keeping the specimen impression
of the brass seal used for the purpose of sealing the
contraband articles. I have not issued atly certificate
to the Enquiry Officer or the 10 after the completion
of the search, seizure and sealing process on the
date of the occurrence. It is a fact that in MO III and
MO IV I have not given any endorsement regarding
collection of the samples in presence of me.
5.3. It is further contended that since on the
alleged date of occurrence on 12.11.2019, when the
offending vehicle OR-03-G-5622 was intercepted, the
said vehicle was occupied by the present appellants
and the bulk Ganja so contained in two packets were
seized in presence of the Executive Magistrate from the
Dickey of the vehicle with due measurement by P.W.15
and preparation of the sample in the packet so
prepared by the tailor-P.W.4, has been duly proved and
the seized article having been proved to be Ganja, no
illegality or irregularity can be found with the
impugned judgment.
5.4. It is contended that since from the dickey of
the vehicle, contraband weighing 78 kgs. was found
// 57 //
and out of those two bags containing the bulk
contraband, samples were drawn with due seal and
signature of the Executive Magistrate-P.W.14, it cannot
be held that the contraband was not seized from the
possession of the appellant, as they were the occupiers
in the offending vehicle. It is contended that since the
contraband was seized from the vehicle, which was
driven by the driver-appellant in CRLA No.475 of 2021
and by the 2 (two) other persons i.e. appellants in
Criminal Appeal Nos.471 and 529 of 2021, it has to be
held that the appellants were carrying the Ganja in the
offending vehicle measuring 78 kgs. Since the
contraband was seized from the vehicle, which was
occupied by the appellants, it has to be held that the
appellants were in conscious possession of the same.
Mere discrepancy in the statement of P.Ws. cannot take
away the well-reasoned order of the learned Special
Judge and these discrepancies cannot be treated as
contradictions. In support of his submission reliance
was placed to the following decisions of the Apex Court.
// 58 //
1. Goverdhan & Another Vs. State of Chhatisgarh,
2025 INSC 47.
2. Kuriya and Another V. State of Rajasthan,
(2012) 10 SCC 433.
3. Kalabhai Hamirbhai Kachhot Vs. State of
Gujarat, Criminal Appeal No.216 of 2015.
5.5. Hon'ble Apex Court in the case of Goverdhan in
paragraphs-51, 52, 53 & 54 has held as follows:
51. As we proceed to examine this crucial
aspect, it may be apposite to keep in mind
certain observations made by this Court
relating to discrepancies in the account of eye
witnesses. In Leela Ram (Dead) through Duli
Chand v. State of Haryana, (1999) 9 SCC 525 it
was observed as follows:
"9. Be it noted that the High Court is within its
jurisdiction being the first appellate court to
reappraise the evidence, but the discrepancies
found in the ocular account of two witnesses
unless they are so vital, cannot affect the
credibility of the evidence of the witnesses.
There are bound to be some discrepancies
between the narrations of different witnesses
when they speak on details, and unless the
contradictions are of a material dimension, the
same should not be used to jettison the
evidence in its entirety. Incidentally,
corroboration of evidence with mathematical
niceties cannot be expected in criminal cases.
Minor embellishment, there may be, but
variations by reason therefore should not
render the evidence of eyewitnesses
unbelievable. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence. In
this context, reference may be made to the
// 59 //
decision of this Court in State of U.P. v. M.K.
Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri)
105]. In para 10 of the Report, this Court
observed: (SCC pp. 514-15)
'10. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read Page 30 of 63 as a
whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed
out in the evidence as a whole and evaluate
them to find out whether it is against the
general tenor of the evidence given by the
witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy
of belief. Minor discrepancies on trivial matters
not touching the core of the case,
hypertechnical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some
technical error committed by the investigating
officer not going to the root of the matter would
not ordinarily permit rejection of the evidence
as a whole. If the court before whom the
witness gives evidence had the opportunity to
form the opinion about the general tenor of
evidence given by the witness, the appellate
court which had not this benefit will have to
attach due weight to the appreciation of
evidence by the trial court and unless there are
reasons weighty and formidable it would not be
proper to reject the evidence on the ground of
minor variations or infirmities in the matter of
trivial details. Even honest and truthful
witnesses may differ in some details unrelated
to the main incident because power of
observation, retention and reproduction differ
with individuals.'
10. In a very recent decision in Rammi v. State
of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26]
this Court observed : (SCC p. 656, para 24) '24.
When an eyewitness is examined at length it is
quite possible for him to make some
discrepancies. No true witness can possibly
escape from making some discrepant details.
Perhaps an untrue witness who is well tutored
can successfully make his testimony totally
// 60 //
nondiscrepant. But courts should bear in mind
that it is only when discrepancies in the
evidence of a witness are so incompatible with
the credibility of his version that the court is
justified in jettisoning his evidence. But too
serious a view to be adopted on mere variations
falling in the narration of an incident (either as
between the evidence of two witnesses or as
between two statements of the same witness) is
an unrealistic approach for judicial scrutiny.
' This Court further observed : (SCC pp. 656-57,
paras 25-27) '
25. It is a common practice in trial courts to
make out contradictions from the previous
confronting him during cross-examination.
Merely because there is inconsistency in
evidence it is not sufficient to impair the credit
of the witness. No doubt Section 155 of the
Evidence Act provides scope for impeaching the
credit of a witness by proof of an inconsistent
former statement. But a reading of the section
would indicate that all inconsistent statements
are not sufficient to impeach the credit of the
witness. The material portion of the section is
extracted below:
"155.Impeaching credit of witness.--The credit
of a witness may be impeached in the following
ways by the adverse party, or, with the consent
of the court, by the party who calls him-- (1)-(2)
***
(3) by proof of former statements inconsistent
with any part of his evidence which is liable to
be contradicted;" 26. A former statement
though seemingly inconsistent with the
evidence need not necessarily be sufficient to
amount to contradiction. Only such of the
inconsistent statement which is liable to be
"contradicted" would affect the credit of the
witness. Section 145 of the Evidence Act also
enables the cross-examiner to use any former
statement of the witness, but it cautions that if
it is intended to "contradict" the witness the
crossexaminer is enjoined to comply with the
formality prescribed therein. Section 162 of the
Code also permits the cross-examiner to use the
previous statement of the witness (recorded
under Section 161 of the Code) for the only
limited purpose i.e. to "contradict" the witness.
// 61 //
27. To contradict a witness, therefore, must be
to discredit the particular version of the
witness. Unless the former statement has the
potency to discredit the present statement, even
if the latter is at variance with the former to
some extent it would not be helpful to
contradict that witness (vide Tahsildar Singh v.
State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ
1231] ).'"
52. Further, this Court also cautioned about
attaching too much importance on minor
discrepancies of the evidence of the witnesses in
Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat (1983) 3 SCC 217 as follows:
"5. ... We do not consider it appropriate or
permissible to enter upon a reappraisal or
reappreciation of the evidence in the context of
the minor discrepancies painstakingly
highlighted by the learned counsel Page 32 of
63 for the appellant. Overmuch importance
cannot be attached to minor discrepancies. The
reasons are obvious:
(1) By and large a witness cannot be expected
to possess a photographic memory and to recall
the details of an incident. It is not as if a video
tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not
have anticipated the occurrence which so often
has an element of surprise. The mental faculties
therefore cannot be expected to be attuned to
absorb the details.
(3) The powers of observation differ from person
to person. What one may notice, another may
not. An object or movement might emboss its
image on one person's mind, whereas it might
go unnoticed on the part of another.
(4) By and large people cannot accurately recall
a conversation and reproduce the very words
used by them or heard by them. They can only
recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human
tape-recorder.
(5) In regard to exact time of an incident, or the
time duration of an occurrence, usually, people
make their estimates by guess work on the spur
of the moment at the time of interrogation. And
one cannot expect people to make very precise
or reliable estimates in such matters. Again, it
// 62 //
depends on the time-sense of individuals which
varies from person to person.
(6) Ordinarily a witness cannot be expected to
recall accurately the sequence of events which
takes place in rapid succession or in a short
time span. A witness is liable to get confused, or
mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable
to be overawed by the court atmosphere and
the piercing cross-examination made by the
counsel and out of nervousness mix up facts,
get confused regarding sequence of events, or
fill up details from imagination on the spur of
the moment. The subconscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being disbelieved
though the witness is giving a truthful and
honest account of the occurrence witnessed by
him--perhaps it is a sort of a psychological
defence mechanism activated on the spur of the
moment."
53. To the same effect it was also observed in
Appabhai v. State of Gujarat (1988) Supp SCC
241 as follows:
"13. ... The court while appreciating the
evidence must not attach undue importance to
minor discrepancies. The discrepancies which
do Page 33 of 63 not shake the basic version of
the prosecution case may be discarded. The
discrepancies which are due to normal errors of
perception or observation should not be given
importance. The errors due to lapse of memory
may be given due allowance. The court by
calling into aid its vast experience of men and
matters in different cases must evaluate the
entire material on record by excluding the
exaggerated version given by any witness. When
a doubt arises in respect of certain facts alleged
by such witness, the proper course is to ignore
that fact only unless it goes into the root of the
matter so as to demolish the entire prosecution
story. The witnesses nowadays go on adding
embellishments to their version perhaps for the
fear of their testimony being rejected by the
court. The courts, however, should not
disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy.
Jaganmohan Reddy, J. speaking for this Court
in Sohrab v. State of M.P. [(1972) 3 SCC 751 :
// 63 //
1972 SCC (Cri) 819] observed : [SCC p. 756,
para 8 : SCC (Cri) p. 824, para 8]
'8. ... This Court has held that falsus in uno,
falsus in omnibus is not a sound rule for the
reason that hardly one comes across a witness
whose evidence does not contain a grain of
untruth or at any rate exaggeration,
embroideries or embellishments. In most cases,
the witnesses when asked about details venture
to give some answer, not necessarily true or
relevant for fear that their evidence may not be
accepted in respect of the main incident which
they have witnessed but that is not to say that
their evidence as to the salient features of the
case after cautious scrutiny cannot be
considered....'"
54. We must also remember that the scene of
the crime was in a rural area and the witness
being rustic, their evidence has to be
appreciated in the light of the behavioral
pattern in the rural environment. In this regard,
we may refer to the decision of this Court in
Shivaji Sahebrao Bobade v. State of
Maharashtra, (supra) wherein it was held that: "
8. Now to the facts. The scene of murder is
rural, the witnesses to the case are rustics and
so their behavioural pattern and perceptive
habits have to be judged as such. The too
sophisticated approaches familiar in courts
based on unreal assumptions about human
conduct cannot obviously be applied to those
given to the lethargic ways of our villages. When
scanning the evidence of the various witnesses
we have to inform ourselves that variances on
the fringes, discrepancies in details,
contradictions in narrations and
embellishments in inessential parts cannot
militate against the veracity of the core of the
testimony Page 34 of 63 provided there is the
impress of truth and conformity to probability
in the substantial fabric of testimony delivered.
The learned Sessions Judge has at some length
dissected the evidence, spun out contradictions
and unnatural conduct, and tested with
precision the time and sequence of the events
connected with the crime, all on the touchstone
of the medical evidence and the post-mortem
certificate. Certainly, the court which has seen
the witnesses depose, has a great advantage
// 64 //
over the appellate Judge who reads the
recorded evidence in cold print, and regard
must be had to this advantage enjoyed by the
trial Judge of observing the demeanour and
delivery, of reading the straightforwardness and
doubtful candour, rustic naiveté and clever
equivocation, manipulated conformity and
ingenious inveracity of persons who swear to
the facts before him. Nevertheless, where a
Judge draws his conclusions not so much on
the directness or dubiety of the witness while
on oath but upon general probabilities and on
expert evidence, the court of appeal is in as
good a position to assess or arrive at legitimate
conclusions as the court of first instance. Nor
can we make a fetish of the trial Judge's
psychic insight."
5.6. Hon'ble Apex Court in the case of Kuriya in
para 29, 30 & 32 of the said judgment has held as
follows:
29. Improvements or variations in the statements of
the witnesses should be of such nature that it would
create a definite doubt in the mind of the court that
the witnesses are trying to state something which is
not true and which is not duly corroborated by the
statements of the other witnesses.
30. This Court has repeatedly taken the view that
the discrepancies or improvements which do not
materially affect the case of the prosecution and are
insignificant cannot be made the basis for doubting
the case of the prosecution. The courts may not
concentrate too much on such discrepancies or
improvements. The purpose is to primarily and
clearly sift the chaff from the grain and find out the
truth from the testimony of the witnesses.
xxx xxx xxx
32. It is a settled principle of law that every
improvement or variation cannot be treated as an
attempt to falsely implicate the accused by the
witness. The approach of the court has to be
reasonable and practicable. Reference in this regard
can be made to Ashok Kumar v. State of
// 65 //
Haryana [(2010) 12 SCC 350 and Shivlal v. State of
Chhattisgarh [(2011) 9 SCC 561
5.7. Hon'ble Apex Court in the case of Kalabhai
Hamirbhai Kachhot in para 19 of the said judgment
has held as follows:
"19. Further, in the case of Narayan Chetanram
Chaudhary & Another Vs. State of
Maharashtra, this Court has considered the
effect of the minor contradictions in the
depositions of witnesses while appreciating the
evidence in criminal trial. In the aforesaid
judgment, it I held that only contradictions in
material particulars and not minor
contradictions can be a ground to discredit the
testimony of the witnesses.
5.8. It is also contended that after conclusion of the
trial, when the learned Special Judge found that 4(four)
of the accused persons are not involved in the alleged
offence, they were acquitted vide the impugned
judgment. However, the seized contraband since were
found in possession of the present appellants and there
is no other presumption that the contraband was not
seized from the offending vehicle, no illegality or
irregularity can be found with the impugned order of
conviction and sentence, so passed against the
appellants vide the impugned judgment. It is also
contended that more discrepancies in the statement of
// 66 //
P.Ws being not contradiction, the impugned order of
conviction and sentence is not to be interfered with. In
support of his submission, reliance was placed to the
following decisions:
1. Edakkandi Dineshan @ P. Dineshan &
Others Vs. State of Kerala 2025 INSC 28
2. Shri Gopal and Another V. Subhash and
Others, (2004) 13 SCC 174
3. Kailash Vs. State of Maharashtra, 2025 SCC
Online SC 1977
5.9. Hon'ble Apex Court in the case of Edakkandi
Dineshan @ P. Dineshan in para-19 & 25 has held as
follows:
19. It is a settled position that 'falsus in uno,
falsus in omnibus' (false in one thing, false in
everything) that the above principle is foreign to
our criminal law jurisprudence. This aspect has
been considered by this Court in a plethora of
judgements. In the case of Ram Vijay Singh vs
State of UP4, a Three Judge bench of this
Hon'ble Court had held that: "..(20) We do not
find any merit in the arguments raised by the
learned counsel for the Appellant. A part
statement of a witness can be believed even
though some part of the statement may not be
relied upon by the Court. The maxim falsus in
uno, falsus in omnibus is not the rile applied by
the courts in India. This Court recently in a
// 67 //
judgement IIangovan vs State of T.N. held that
Indian Courts have always been reluctant to
apply the principle 4 2021 SCC Online SC 142.
13 as it is only a rile of caution. It was held as
under: (SCC Pg 536, Para 11)" "..(11) The
Counsel for the Appellant lastly argued that
once the witnesses had been disbelieved with
respect to the co accused, their testimonies
with respect to the present accused must also
be discarded. The Counsel is, in effect, relying
on the legal maxim "falsus in uno, falsus in
omnibus", which Indian Courts have always
been reluctant to apply. A three Judge bench of
this Court, as far back as in 1957, in Nisar Ali
v. State of UP, held on this point as follows (AIR
p 368, Para 9-10) "(9) This maxim has not
received general acceptance in different
jurisdictions in India nor has this maxim come
to occupy the status of a rule of law. It is merely
a rule of Caution. All that it amounts to is that
in such cases the testimony may be disregarded
and not that it must be disregarded. (10) The
Doctrine merely involves the question of weight
of evidence which a Court may apply in a given
set of circumstances, but it is not what may be
called "a mandatory rule of Evidence" (21)
Therefore, merely because a prosecution
witness was not believed in respect of another
accused, the testimony if the said witness
cannot be disregarded qua the present
Appellant. Still, further it is not necessary for
the prosecution to examine all the witnesses
who might have witnessed the occurrence. It is
the quality if evidence which is relevant in
criminal trial and not the quantity."
xxx xxx xxx
25.The principle of 'falsus in uno, falsus in
omnibus' does not apply to the Indian criminal
jurisprudence and only because there are some
contradictions which in the opinion of this
Court are not even that material, the entire
story of the prosecution cannot be discarded as
false. It is the duty of the Court to separate the
grain from the chaff.
5.10. Hon'ble Apex Court in the case of Shri Gopal in
para-18 has held as follows:
// 68 //
18. In Tahsildar Singh v. State of U.P. [AIR 1959 SC
1012 : 1959 Cri LJ 1231] this Court held that in
terms of Section 145 of the Indian Evidence Act,
attention of witnesses can be drawn to such
statements which would amount to contradiction. It
was held: (AIR p. 1034, para 56) "56. The right of
both the accused and the prosecution is limited to
contradictions." It was, thus, held that omission to
make a statement in terms of Section 161 of the Code
of Criminal Procedure would not attract the
provisions of Section 145 of the Indian Evidence Act.
However, by reason of amendment of the Code of
Criminal Procedure explanation has been inserted to
sub-section (2) of Section 162 which is in the
following terms:
"An omission to state a fact or circumstance in the
statement referred to in sub-section (1) may amount
to contradiction if the same appears to be significant
and otherwise relevant having regard to the context
in which such omission occurs and whether any
omission amounts to a contradiction in the particular
context shall be a question of fact."
5.11. Hon'ble Apex Court in the case of Kailas in para-
16, 20,27,28,30 & 31 has held as follows:
16. Before we proceed further, it would be useful to
survey the judicial precedents as to in what
circumstances a re-trial is to be directed and what
are the consequences of such a direction. In Ukha
Kolhe v. State of Maharashtra (supra), this Court
observed that:
"An order for the re-trial of a criminal case is made in
exceptional cases, and not unless the appellate court
is satisfied that the Court trying the proceeding had
no jurisdiction to try it or that the trial was vitiated by
serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and
on that account in substance there had been no real
trial or that the Prosecutor or an accused was, for
reasons over which he had no control, prevented from
leading or tendering evidence material to the charge,
and in the interest of justice the appellate court
deems it appropriate, having regard to the
circumstances of the case, that the accused should
be put on his trial again. An order of re-trial wipes out
from the record the earlier proceeding, and exposes
the person accused to another trial which affords the
prosecutor an opportunity to rectify the infirmities
disclosed in the earlier trial, and will not ordinarily be
// 69 //
countenanced when it is made merely to enable the
prosecutor to lead evidence which he could, but has
not cared to lead either on account of insufficient
appreciation of the nature of the case or for other
reasons."
xxx xxx xxx
20. We are conscious of the law that while exercising
appellate power the record must be perused8 and,
therefore, if the High Court, as an appellate court,
had difficulty in understanding the contents of the
video, which was part of the record, it could have
called for the presence of the accused as well as the
witnesses or their respective lawyers to explain to the
Court the significance of what appears in that video.
Besides, the power to take additional evidence is
there under Section 391 of CrPC. However, to merely
understand the video, in our view, there is no
justification to order a re-trial and fresh recording of
evidence. For the reasons above, reason (a) supra
assigned by the High Court for ordering a re-trial is
totally misconceived and baseless.
xxx xxx xxx
7. In Baldev Singh v. State of Haryana15, a three-
Judge Bench of this Court, following the decisions
in Jitendra (supra), Vijay Jain (supra) Ashok (supra)
and Noor Aga (supra), allowed the appeal of a convict
on the ground that the seized contraband was not
produced and there was no satisfactory evidence
regarding proper custody of the contraband.
28. In Vijay Pandey v. State of U.P.16, this Court laid
emphasis on the existence of evidence to correlate the
seized sample with the one that was tested. The
relevant observations are reproduced below:
"8. The failure of the prosecution in the present case
to relate the seized sample with that seized from the
appellant makes the case no different from failure to
produce the seized sample itself. In the
circumstances the mere production of a laboratory
report that the sample tested was narcotics cannot be
conclusive proof by itself. The sample seized and that
tested have to be correlated."
xxx xxx xxx
30. At this stage, we may refer to the provisions of
Section 52-A18 of NDPS Act. This section, inter alia,
enables preparation of inventory of seized
contraband, drawing of samples therefrom, taking of
photographs, etc., as well as its disposal. Sub-section
(4) of Section 52-A is important. It provides that every
court shall treat the inventory, the photographs of the
contraband and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as
primary evidence in respect of such offence.
// 70 //
31. In the light of the discussion above, in our view,
mere non-production of the seized contraband during
trial may not be fatal if there is reliable evidence in
respect of its seizure, drawing of samples therefrom,
and FSL report relating to the sample drawn from the
seized material. However, to ensure that no adverse
inference is drawn against the prosecution for non-
production of the seized contraband, documents
prepared in terms of the provisions of Section 52-
A, inter alia, evidencing preparation of inventory of
seized contraband and drawing of samples
therefrom, would have to be brought on record.
Likewise, evidence should be there that the sample
drawn from the inventory was sent to FSL in a
sealed container/envelop, as per guidelines, and that
the seal was found intact at the end of FSL. This is to
obviate any doubt regarding sample being tampered
in transit. Similarly, FSL's report along with the
sample tested by it is to be placed on record so that
there remains no doubt regarding the sample tested.
6. Having heard learned counsel appearing for the
parties and considering the submission made, this
Court finds that the prosecution in Raghunathpalli P.S.
Case No.280 of 2019 was set into motion with
Registration of the F.I.R on 12.11.2019 for the offence
under Section 20(b) (ii) (C) of the NDPS Act and Section
120-B of the I.P.C. However, the present appellants
along with 4(four) other accused persons faced the trial,
after being charged for the offence under Section 20(b)
(ii) (C)/29 of the NDPS Act.
6.1. The seized contraband was found in the dickey of
the offending vehicle OR-03-G-5622 and the two gunny
// 71 //
bags on being measured, the same was weighed at 44
kg. and 34 kg. respectively, in total 78 kgs. After taking
out the sample measuring 25 grams each to have the
original sample and duplicate sample, the net weight of
the bulk Ganja came to 43.950 and 33.950 kgs in both
the bags.
6.2. The prosecution in order to prove its case,
examined as many as 19 witnesses and no witnesses
has been examined by the defence.
While P.W.7 is the person who seized the
contraband on the alleged date of occurrence, P.W.14 is
the Executive Magistrate in whose presence, the alleged
search and seizure was made. P.W.19 is the I.O of the
case. P.W.4 & P.W.15 are the tailor and weighman,
who were called to the spot by P.W.7 for weighting of
the contraband so seized and preparation of the
samples, P.Ws.5, 10, 11, 12 & 17 are the police
Constable attached to Raghunathpalli Police Station.
P.Ws.1, 2, 3, 8 & 13 are the members of the raiding
party, who accompanied P.W.7 to the spot. P.W.16 is
// 72 //
the driver of the vehicle who carried the raiding team to
the spot on 12.11.2019.
6.3. This Court after going through the materials
available on record and the deposition of the P.Ws
though finds that there are certain discrepancies with
regard to search and seizure of the contraband as well
as its weighing and drawing of samples by using the
brass seal in question, but all such discrepancies
cannot be treated as contradiction. Placing reliance on
the decisions in the case of Edakkandi, Shri Gopal
and Kailash, this Court is of the view that since the
contraband was seized from the offending vehicle and
all the appellants were occupants in the vehicle, which
is not disputed, the prosecution has proved the seizure
of the contraband from the conscious possession of the
appellants, beyond all reasonable doubt. Learned trial
Court as found from the record has dealt with all the
issues raised by the Appellants with regard to search
and seizure as well as mis-match in the statement of
the P.Ws. This Court finds no irregularity or illegality
with regard to the appreciation made by the learned
// 73 //
trial Court, while holding the appellants guilty of the
charges.
6.4. In view of the aforesaid analysis, this Court is
of the view that the appellants have been rightly
convicted and sentenced for the offence under Section
20(b) (ii) (C) of the NDPS Act and Section 120-B of the
IPC. This Court accordingly is not inclined to interfere
with the impugned judgment dt.16.08.2021 so passed
in Spl. G.R. Case No.6 of 2019 by the learned 1st Addl.
Sessions Judge, Rourkela and dismiss all the appeals.
7. The Appeals accordingly stand dismissed.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 9th January, 2026 /Sangita
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 12-Jan-2026 14:05:21
