Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Ori) 921

THE HIGH COURT OF ORISSA AT CUTTACK
SIBO SANKAR MISHRA, J.
Ghanashyam Palei – Appellant
Versus
State of Orissa – Respondent
CRA No.68 of 1996
Decided On : 19-08-2025

Advocates Appeared:
For the Appellant : Ms. Upashikha Samantray along with Mr. Mohammad Faradish, Advs.
For the Respondent: Ms. Suvalaxmi Devi, ASC

Compliance with procedural requirements under the NDPS Act is essential; failure to ensure due process can undermine the prosecution's case, resulting in acquittal.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act - Section 20(b)(ii) - Criminal Procedure Code - Section 374(2) - Appeal against conviction for possession of narcotics - Non-compliance with procedural rights and improper evaluation of evidence led to doubts on prosecution's case - Search was conducted without prior information; compliance with certain sections not required - Acquittal granted. (Paras 8-13)

(B) Compliance of statutes - Essential adherence to Sections 42, 50, and 57 of the NDPS Act in narcotics cases - Evidence must support claims made during seizure - Absence of independent witnesses raises significant doubt regarding credibility of the prosecution's case. (Paras 10-13)

Facts of the case:
The appellant was convicted for possession of 3 K.G. of Ganja found in a bag during a routine patrol. Following procedural arguments questioning the legality of the search and seizure based on Sections 42, 50, and 57, an appeal was filed against the conviction.

Findings of Court:
The prosecution failed to establish the case beyond reasonable doubt due to procedural lapses and inadequate evidence, leading to the appellate court's decision to acquit the appellant.

Issues: Did the prosecution comply with the mandatory requirements of the NDPS Act? Was the evidence sufficient to uphold the conviction?

Ratio Decidendi: The court determined that the prosecution had not fulfilled its burden to prove the appellant’s guilt beyond the standard required, particularly regarding the procedural compliance of the NDPS Act and the availability of independent witness corroboration.

Result: The convicting judgment and sentence are set aside; the appellant is acquitted of all charges.

Table of Content
1. factual background of the case (Para 1 , 2)
2. arguments regarding statutory compliance (Para 4 , 8)
3. court's observations on the evidence (Para 6 , 12 , 13)
4. ratio decidendi concerning section 50 and 57 (Para 9 , 11)
5. conclusion and acquittal order (Para 14 , 15)

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, is filed by the appellant under Sections 374 (2) of the Cr. P.C., assailing the judgment of conviction and order of sentence dated 24.02.1996 passed by the learned Additional Sessions Judge, Bhubaneswar in Sessions Trial No. 18/2016 of 1993, whereby the learned trial Court has convicted the accused- appellant-Ghanashyam Palei under Section 20 (b) (ii) of the N.D.P.S. Act and in lieu of the said conviction, he was sentenced to undergo R.I. for two years and to pay a fine of Rs.2000/-, in default, to undergo further R.I. of six months.

After conviction, the appellant filed the present appeal on 07.03.1996. Since he was in custody, he moved an application for grant of bail before this Court, which was decided on 24.04.1996. This Court while recording the fact that the appellant has already remained in custody for a substantial period during and after the trial, had admitted him to bail. Since then, the appeal has been pending before this Court.

2. The prosecution case, in nutshell, is that on 16.02.1990 at around 12 to 12.30 P.M., the S.I. of Excise Intelligence Branch, Bhubaneswar (P.W.3) along with his A.S.I. (P.W.2) and Constable (P.W.1), proceeded towards Old Town, Bhubaneswar on patrolling duty. While patrolling in that area, they found at Kedargouri Chhak, the present appellant was proceeding towards Bindusagar carrying a hand bag. On suspicion, P.W.3 detained the accused and procured attendance of two witnesses who were passing by that way and expressed his intention to take search of the accused. After giving personal search of himself and that of the accompanying excise officials, P.W.3 conducted the search and recovered that hand bag from the possession of the accused. The said bag was opened and Ganja in a polythene packet was found inside. On weighment the recovered ganja was found to be 3 K.G. As the accused could not show any authority for possession of ganja, P.W.3 seized the recovered ganja as well as the hand bag. Thereafter, the accused was arrested and on the basis of the aforesaid allegation, Bhubaneswar E.I.S. Charge P.R. NO.98/89-90 was registered, which corresponds to 2 (a) C.C. Case No. 52 of 1990.

3. Heard Ms. Upashikha Samantray appearing along with Mr. Mohammad Faradish, learned counsel for the appellant and Ms. Suvalaxmi Devi, learned Addl. Standing Counsel for the State.

4. The appellant was charged for the offence punishable under Section 20 (b) (ii) of the N.D.P.S. Act and on his stand of denial and claim of trial, he was put to trial.

5. The prosecution examined only three witnesses. All the three witnesses are the official witnesses. P.W. 3 was the S.I. of Excise, who has made the recovery and seizure, P.Ws.1 and 2 were the Excise Officers, who were in the patrolling duty and accompanied with P.W.3. The defence in order to establish its case has also examined one witness. The said witness though was cited by the prosecution, but the prosecution failed to examine him, rather the appellant-accused has examined him on his defence.

6. The trial court after analyzing the evidence of the three witnesses came to the following conclusions

“19. As regards the authority of P.W.3 to make the search, seizure, arrest, investigation etc. under the Act, he has stated to have been generally authorized by the State Government under Section 42 /67 and under Section 53 of the Act. He has also proved the Xerox copies of the Notification under Sections 42 /67 of the Act as Ext.4 and Notification under Section 53 of the Act as Ext.5. Under these two notifications the officers of and above the rank of Sub-Inspector of Excise have been empowered to perform the duties under /67 of the Act a