Odisha High Court sets aside Conviction as Search & Seizure Provision u/s Sec. 50 of NDPS Act not fulfilled

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The appellant in the present case was convicted and sentenced for 10 years of rigorous imprisonment along with a fine of Rs. 1,00,000/- for an offence under Sec. 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the 3rd Additional Sessions Judge, Cuttack.

Brief Facts of the Case

On 03.11.2014, the Inspector of Excise, Cuttack was performing patrolling duty along with her staff saw the accused sitting over two loaded jerry bastes near Trinath Temple in front of Cuttack Railway Station. When the appellant tried to flee, the inspector along with the A.S.I. of the Excise detained the accused on suspicion that he has kept contraband articles inside those jerry bastas.

Accordingly completing all formalities of search, the inspector seized 30 kgs of contraband ganja, i.e., 15 kgs each of two jerry bastas which were in possession of the accused-appellant. He was then arrested and produced before the court. On completion of the investigation, the final report was submitted and trial commenced thereafter.

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The accused-appellant, on the other hand, took the plea of complete denial and false accusation. He was the sole accused in this case.

The judgment of the Trial Court

The witnesses of both the prosecution and defence were examined and the learned trial court upon analyzing the evidence of both the sides held the appellant guilty and accordingly convicted him as aforesaid. Aggrieved by the order, the accused filed an appeal before the HC of Odisha.

Issue of the Case

When the appeal was filed before the Odisha HC, some issues were raised before the court

  1. It was first contended by the appellant that, the officer-cum-informant has been the Investigating Officer in the present case for which the appellant has been seriously prejudiced.

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    It was further contended that the independent witnesses never supported the prosecution case and there were many lacunas in the investigation which was causing many reasonable doubts in favour of the defence.

  3. It further arose a reasonable doubt on the prosecution case regarding the search and seizure of the contraband from the possession of the appellant.

Arguments before the High Court

Before the HC it was first argued upon Section 42 of NDPS Act [i.e. the power of entry, search, seizure and arrest without warrant or authorization]

Looking at the evidence, it was found consistent that they had no prior knowledge of such expected detection. But at this juncture, if the defence case is looked into, it was admitted by the Defence witness, who is another A.S.I of Excise, that, at the same place, i.e. in front of Railway Station, two other accused person were detected as possessing the contraband ganja weighing 90 kgs. A comparison of the police reports revealed the time which was between 7.45 A.M to 9.00 A.M and 6.45 A.M to 8.55 A.M respectively. The most important point is that the independent witnesses in both the police reports are the same. When the major period in both cases is seen common, the presence of two independent witnesses in the present case for search and seizure as per the narration of the prosecution becomes doubtful. Both of these independent witnesses completely denied their presence during search and seizure. In view of the evidence of defence witness and the exhibits marked on behalf of the defence, it is not falsified that prosecution witness was not present at the time of seizure. Therefore, there arises a reasonable doubt on the prosecution case regarding the search and seizure of the contraband from the possession of the appellant.

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What next to be seen, was regarding mandatory compliance of Section 50 of the NDPS Act [conditions under which search of a person shall be conducted]

The compliance of Sec. 50 of the NDPS Act in its true spirit becomes mandatory on the prosecution. It is held by the Hon’ble Supreme Court in the case of Arif khan & Agha Khan v. the State of Uttarakhand, [AIR 2018], that it is mandatory for the prosecution to prove that the search and recovery were made from the appellant in the presence of any Magistrate or a Gazetted Officer. However, in the present case, prosecution witness put the Left Thumb Impression of the accused on a pre-printed formant and upon other documents, which did not satisfy the due compliance of Sec. 50 of the NDPS Act. For the said purpose it was the duty of the detecting officer to conduct a search of the accused in an NDPS case before the Executive Magistrate or the Gazetted Officer as a mandate in this Act. Accordingly, it was concluded that requirements of Sec. 50 of the NDPS Act has not been complied with in the present case and the learned trial court has failed to appreciate this aspect.

It is further argued that the weight of the contraband packet of ganja was taken on the spot itself, but the record did not contain any weight chart. The prosecution argued that the total ganja weighing 30 kgs was seized and after that, the weight was measured, the same was sealed in the same bastas with an impression of the brass seal of the prosecution witness. But this witness does not support the prosecution case nor any brass seal produced before the court. When the place of seizure was a public place and the weight chart was not produced nor the brass seal, nor the independent witness supported the prosecution version, the doubt on the prosecution case regarding the seizure of the contraband of a particular quantity becomes grave.

High Court’s View

In this case, as discussed above, there is no compliance of mandatory provisions of Sec 50 of the NDPS Act and there were doubts regarding weight, non-production of brass seal and non-production of the contraband packet. Under such circumstances, it can be safely said that the appellant has definitely been prejudiced by the conduct of prosecution witness when she as an informant became the investigating officer.

Orissa High Court, Dismissed Writ Petition,High Court’s Decision

Considering such prejudices caused to the accused and in view of the lacunas as well as non-compliance of mandatory provisions prescribed under the NDPS Act, it cannot be concluded that the prosecution has established its case beyond all reasonable doubts and as such, the conviction imposed by the learned trial court was not found justified. Hence, the same was liable to be set aside. The appeal was allowed, the impugned judgment of conviction was set aside and was directed to release the appellant from the custody.


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