Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Ori) 817

THE HIGH COURT OF ORISSA AT CUTTACK
SIBO SANKAR MISHRA, J.
Manoj Kumar Sahoo and another – Appellants
Versus
State of Odisha – Respondent
CRA No.65 of 2002
Decided On : 11-09-2025

Advocates Appeared:
For the Appellants : Mr. Tukuna Kumar Mishra, Amicus Curiae
For the Respondent: Mr. Raj Bhusan Dash, ASC

Search and seizure under NDPS Act must comply with Section 50 provisions, failing which accused are entitled to acquittal.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(i) - Criminal Procedure Code, 1973 - Sections 50 and 100 - Conviction of appellants for possession of contraband substances - Mandatory procedure for search under Section 50 not complied with, as the search was not conducted in the presence of two independent witnesses - Lack of credibility in defense witnesses did not negate the prosecution's failure to meet this procedural necessity. (Paras 4-14)

(B) Search and Seizure - Compliance with procedural safeguards - Prosecution failed to demonstrate that the search was conducted according to the requirements of law, leading to reasonable doubt regarding the conviction. (Paras 10-14)

Facts of the case:
The appellants were found with 2.5 kgs. of ganja during a search on December 4th, 1998, but claimed the search violated procedural safeguards owing to absence of independent witnesses. The trial court convicted them based on the evidence of law enforcement officers.

Findings of Court:
The court concluded that the prosecution did not meet the mandatory procedural safeguards in conducting the search and that the evidence did not establish guilt beyond reasonable doubt, warranting acquittal.

Issues: The pertinent issues included whether the search complied with Section 50 of the N.D.P.S. Act and the implications of witness credibility.

Ratio Decidendi: The court held that the failure to conduct the search in accordance with the mandatory provisions of Section 50 (i.e., presence of two independent witnesses) invalidated the prosecution's case, leading to the appellants being entitled to the benefit of doubt.

Result: Appeal allowed; the appellants acquitted.

Table of Content
1. conviction under ndps act based on evidence. (Para 1 , 4 , 5)
2. court’s conclusion and order. (Para 2 , 15 , 16)
3. analysis of evidence and reasoning for acquittal. (Para 3 , 7 , 13 , 14)
4. mandatory procedures under section 50 of ndps act. (Para 8 , 9 , 11)

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, filed by the appellants under Section 374(2) of the Cr.P.C., is directed against the judgment and order dated 15.03.2002 passed by the learned Sessions Judge-cum-Special Judge, Khurda at Bhubaneswar in T.R. Case No.12 of 1998, whereby the present appellants have been convicted for the offence under Section 20 (b)(i) of the N.D.P.S. Act and on that count, they were sentenced to undergo R.I. for three years and to pay a fine of Rs.5,000/-, in default to undergo further R.I. for six months.

2. The present appeal is pending since 12.04.2002. When the matter was taken up for hearing on 08.07.2025 and 22.07.2025, none had appeared on behalf of the appellants. Therefore, this Court requested Mr. Tukuna Kumar Mishra, learned counsel, who is present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Mishra.

3. Heard Mr. Tukuna Kumar Mishra, learned Amicus Curiae for the appellants and Mr. Raj Bhusan Dash, learned Additional Standing Counsel for the State.

4. The prosecution case in terse and brief is that on 04.12.1998 at about 4.00 P.M., when the S.I. of Excise Mobile, Bhubaneswar namely Bali Sethi (P.W.3) performing patrolling duty on Khurda-Gurujanga road along with his A.S.I. (P.W.2), they found the appellant-1- Manoj Kumar Sahu riding a Luna from Khurda to Gurujanga side with the co- accused-Laxmidhar Behera (appellant No.2) on the pillion and a cement plastic bag was tied to the handle of the Luna. It is alleged that the P.W.3 intercepted the accused persons, searched them and the Luna they were riding, in the presence of two passers-by, one of whom was examined as P.W.1. On being searched, they found 2 kgs.500 grams of contraband ganja kept in the cement plastic bag tied to the handle of the Luna. Thereafter, in the presence of the punch witnesses, the Excise Officer sealed the plastic bag containing ganja (M.O.II) and seized it and the Luna (M.O.IV), the accused persons were riding under the seizure list (Ext.5). The sample packets were sent for chemical examination and the outcome of the report was positive. In due course, P.W.3 submitted prosecution report under Section 20 (b)(i) of the N.D.P.S. Act against both the accused persons. Accordingly, charges were framed and on the stance of denial and claim of trial, both the accused persons were put to trial.

5. The prosecution in order to bring home charges examined three witnesses. Out of whom, P.W.1 is claimed and said to be an independent and punch, witness whereas P.W.2 was the Excise A.S.I. and assistant of P.W.3 and P.W.3 was the S.I. of Excise Mobile.

6. The learned trial Court by taking into consideration the entire evidence brought on record particularly the evidence of P.W.3 and the other witnesses came to the following conclusion:-

“8. The defence has taken a belated plea at the stage of accused statement that the p.w.3.had cheated the accused persons of a sum of Rs.10,000/- each on the pretext of arranging service for them and roped them in a false case as they demanded refund of the money. The D.Ws.1 and 2 who speak of a conversation between both the accused and p.w.3 in this connection at Chhatabar bazar on the day of occurrence, are co-villagers of accused Laxmidhar Behera and Manoj Kumar Sahu respectively. According to D.w.1, accused Manoj runs a grocery shop at Chhatabar bazar, whereas D.w.2 has stated during cross-examination that none of the accused persons has any shop at Chhatabar bazar. The D.w.1 has stated that on 3.12.1998 while he had been to Chhatabar bazar