Sunil Kumar Dalai @ Sunil Dalai Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC Nos. 1957 of 2024 & 1958 of 2024

Applications under Section 482 of the Code of Criminal Procedure arising out C.T. Case No 29 of 2021 in the Court of the Special Judge - cum- Additional Sessions Judge, Balliguda .

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-------------- CRLMC No.1957 of 2024 Bichitra Dalai @ Dalei ….. Petitioner -versus- ….. State of Odisha Opposite Party CRLMC No.1958 of 2024 Sunil Kumar Dalai @ Sunil Dalai ….. Petitioner -versus- ….. State of Odisha Opposite Party For Petitioners : Mr. Anirudha Das, Advocate (In both CRLMCs) For Opp. Party : Mr. Udit Ranjan Jena, (In both CRLMCs) Addl. Government Advocate -------------------------------------------------------------------------------- CORAM:

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HON’BLE MISS JUSTICE SAVITRI RATHO

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CRLMC Nos.1957 & 1958 of 2024

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JUDGMENT

15.05.2025

Savitri Ratho, J. These two CRLMCs have been filed, challenging the

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initiation of proceedings pursuant to Baliguda P.S. Case No.82 of 2021 corresponding to CT Case No.29 of 2021 in the Court of the learned Special Judge-cum-Addl. Sessions Judge, Balliguda, under Sections 20(b)(ii)C, 25 and 29 of the NDPS Act. The further proceedings and the charge-sheets filed in these cases have also been challenged.

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F.I.R. in the case was filed on 18.05.2021 against the petitioners in both the applications. After completion of investigation, charge-sheet dated 14.11.2021 has been filed and trial against the petitioners has commenced for the offence under Section 20(b)(ii)C of Narcotic Drugs and Psychotropic Substances Act.

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FACTUAL MATRIX

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The case in brief is that on 18.05.2021 at about 12.05 PM as per the direction of the I.I.C., Baliguda P.S., the informant, along with other police officials while performing patrolling duty for Covid-19 Enforcement in Sindrigaon, received reliable information from a source that some persons were hoarding huge quantity of

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ganja inside the jungle for transportation to different places, so unless immediate raid was conducted, the ganja would be shifted or disposed of. Therefore, the informant proceeded to the spot with other police officials. On reaching the spot, they saw a Bolero bearing registration number 02 AU 9867 with its back door open. Three bags had been kept in the Bolero and one person was standing guard. Two other persons were sorting the bags and covering the same with branches. On seeing the police, they tried to escape. One person, who was sorting the bags was caught while the two others escaped. 16 jerry bags which were being sorted were seized as well as the three bags from the Bolero. The person who was caught at the spot during interrogation, divulged his name to be Arjuna Pujari and disclosed the names of the petitioners and stated that they had fled from the spot. The contraband ganja was seized and FIR was registered against him and the present petitioners.

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SUBMISSIONS

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Mr. Anirudha Das, learned counsel for the petitioners

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submits that the petitioners were not apprehended from the spot . They have been named in the FIR in Baliguda P.S. Case No.82 of 2021, on the basis of the statement of co accused Arjuna Pujari,

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who was arrested on the spot and allegedly stated before the police that these petitioners had fled from the spot on arrival of the police. He submits that other than the confession of the co-accused, which is not admissible in evidence, there is no other materials to link the petitioners with the seizure of about 400 kilograms of Ganja.

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Relying on the decision in the case of Tofan Singh v.

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State of Tamil Nadu , reported in (2021) 4 SCC 1 , he submits that the Supreme Court has decided the reference holding that on the basis of statement of the co-accused, conviction cannot be sustained as such confession is not admissible in evidence. Relying on the decision of the Supreme Court in the case of Yusuf @ Asif v. State , reported in (2023) 92 OCR (SC)-895 he submits that as the procedure under Sections 52A and 57 of the NDPS Act have not been followed during search and seizure, the alleged contraband seized during the seizure in contravention of Section 52A of the NDPS Act would not be a valid piece of primary evidence in the trial and in the absence of such evidence, the trial would be vitiated. He finally submits that in such situation when the chances of conviction of the petitioners are bleak, no useful purpose would be served by making them face the trial.

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Mr. Udit Ranjan Jena, learned Additional Government Advocate submits that apart from the statement of the co-accused before the police and other witnesses, during investigation it has

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been found that the Bolero bearing registration number 02 AU 9867 from which three bags of ganja were seized, is registered in the name of Bichitra Dalai @ Dalei, the petitioner in CRLMC No.1957 of 2024. He has submitted that compliance/noncompliance of Section 52A of the NDPS and its consequences thereof (prejudice if any) is a matter to be considered at the time of trial after evidence has been recorded. In view of the huge quantity of ganja seized, which is more than 400 kgs, this Court in exercise of power under Section 482 of Cr.P.C., should not conduct a mini trial at this stage to examine compliance of Section 52A of the NDPS Act and consequences in case of its non-compliance as that would depend on the evidence.

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7. STATUTORY PROVISION

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Section 52 A and 57 of the NDPS Act are extracted below: -

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“ Section 52A. Disposal of seized narcotic drugs and psychotropic substances. — (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in

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respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of —

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(a) certifying the correctness of the inventory so prepared; or (b) taking in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

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“ 57. Report of arrest and seizure .—Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.”

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JUDICIAL PRONOUNCEMENTS

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9. In the case of Tofan Singh (supra), the Supreme Court

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has answered the reference by inter alia holding as follows:

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“158. We answer the reference by stating :

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158.1 That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

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158.2 That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

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(emphasis supplied)

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In the case of Yusuf (supra) , the Supreme Court has held

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as follows:

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16. In the absence of any material on record to establish 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.

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17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary

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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 of the High Court as well as the trial court 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.”

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(emphasis supplied)

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In the case of NCB vs. Kashif (Criminal Appeal

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No.5544 of 2024 @ SLP (Crl.) No. 12120 of 2024) , the Hon’ble Supreme Court has held as follows:

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“39. The upshot of the above discussion may be summarized as under:

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(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

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(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

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(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the 34 International Conventions on the Narcotic drugs and psychotropic substances.

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(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

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(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

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(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of

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investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act. 40. The impugned order based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law.

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The Supreme Court has also held thus : -

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“24. Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic

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Substances, however delayed compliance or noncompliance of the said provision by the concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act.

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25. It is significant to note that as per Section 54 of the said Act, the courts are entitled to presume, unless and until the contrary is proved that the accused had committed an offence under the Act in respect of any narcotic drug or psychotropic substance etc. for the possession of which he failed to account satisfactorily. Therefore, unless such statutory presumption is rebutted by the accused during the course of trial, there would be a prima facie presumption that the accused had committed the offence under the Act, if he is found to have possessed the contraband drug and substance, and if he fails to account satisfactorily, as contemplated in the said provision of Section 54. An anomalous situation would arise if a non-compliance or delayed compliance of Section 52A is held to be vitiating the trial or entitling the accused to be released on bail, though he is found to have possessed the contraband

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substance, and even if the statutory presumption is not rebutted by him. Such could not be the intention of the legislature.

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26. It is further pertinent to note that as per the settled legal position even the evidence collected by an illegal search or seizure could not be excluded or discarded. Whether the evidence collected by an illegal search or seizure is admissible or not has been considered by this Court in a series of decisions and one of the earliest decisions is the decision of the Constitution Bench in case of Pooran Mal Vs. Director of Inspection (Investigation) New Delhi and Others (supra). It was observed therein that:

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“24. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.”

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(emphasis supplied)

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In the case of Bharat Aambale vs State of Chatisgarh: 2025 INSC 78, 2025 SCC OnLine SC 110 the Supreme Court after referring to a number of its earlier decisions including Yusif (supra) and Kashif (supra) summarized their final conclusion, which is extracted below: -

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“50. We summarize our final conclusion as under : -

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(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe

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manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.

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(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.

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(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.

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(IV) The procedure prescribed by the Standing Order(s)/ Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.

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(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution’s case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.

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(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.

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(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid

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down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.

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(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.

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(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.

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(X) Once the foundational facts laid indicate noncompliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such noncompliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.”

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(emphasis supplied)

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In Gurmail Chand vs. State of Punjab: (2021)14 SCC 334 , relying

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on the earlier three Judge Bench decision in the case of Sajan Abraham vs.

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State of Kerala : (2001) 6 SCC 692 , the Supreme Court has held as follows:

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“… In so far as submissions on the basis of Section 57 of NDPS Act is concerned, it has been held that the said provision is not to be interpreted to mean that in event the report is not sent within two days, the entire proceeding shall be vitiated. The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding. A three-Judge Bench of this Court in Sajan Abraham vs. State of Kerala has held that non-compliance of Section 57 would not vitiate the prosecution case. In paragraph 12 following was laid down:

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"The last submission for the appellant is, there is non-compliance with Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court, that PW5 has sent copies of FIR and other documents to his superior officer, which is not in dispute. Ext.P-9 shows that the copies of the FIR along with other

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records regarding the arrest of the appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act.”

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DISCUSSION AND CONCLUSION

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In the case of Kashif (supra), this Court has held that lapse or delayed compliance of section 52A would neither entitle an accused to be released on bail nor would it vitiate the trial and that the Court would have to consider all the circumstances of the case, to find out if any serious prejudice has been caused to the accused.

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In the case of Bharat Aambale (supra), the Supreme Court held that the procedure prescribed by the Standing Orders/Rules in terms of section 52A is intended to only guide the officers and mere non-compliance would not necessarily be fatal to the trial. Noncompliance or delayed compliance may, however lead the Court to draw an adverse influence against the prosecution, but it would depend on the facts and circumstances of each case and the entire burden would

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be on the accused to show non-compliance of section 52A, either by leading evidence or from the evidence led by the prosecution.

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In the case of Yusuf (supra), the Supreme Court was dealing with an appeal against conviction where the Court found that the prosecution had failed to lead evidence regarding compliance of Section 52A of the NDPS Act.

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In the case of Tofan Singh (supra) the Supreme Court has held that statement of an accused before a police officer, cannot be used as a confessional statement in a trial under the NDPS Act. In the present case, trial is in progress.

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In the case of Sajan Abraham ( supra) and Gurmail Chand ( supra), the Supreme Court has held that the provisions of Section 57 are directory and that if substantial compliance of the provision has been made , the proceedings will not be vitiated .

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The Bolero from which three bags of ganja were seized, is registered in the name of Bichitra Dalai @ Dalei, the petitioner in CRLMC No.1957 of 2024.

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In view of the above discussion and the decisions of the

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Supreme Court referred to above , I do not find any merit in the

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submission of the learned counsel that the proceedings should be quashed on the ground of non compliance of the provisions of Section 52 A and section 57 of the NDPS Act as the only incriminating material

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against the petitioners is the confession of the co-accused made before the police.

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