Orissa High Court
Anil Sahu vs State Of Odisha on 13 January, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.589 of 2025
Anil Sahu .... Appellant(s)
Mr. D.P. Dhal, Senior Advocate
-versus-
State of Odisha .... Respondent(s)
Mr. Debraj Mohanty, AGA
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
13.01.2026 Order No. I.A. No.1381 of 2025
04. 1. This is an application for bail.
2. Heard.
3. The appellant-petitioner has been convicted for the offence under 21(b) of the N.D.P.S. Act and sentenced him to undergo R.I. for a period of five years and to pay a fine of Rs.5,000/- (Rupees five thousand), in default, to undergo R.I. for a period of six months for the offence under Section 21(b) of the N.D.P.S. Act by the learned Judge, Special Court under N.D.P.S. Act-cum-Additional Sessions Judge, Angul in C.T. (NDPS) Case No.13 of 2023.
4. Mr. Dhal, learned Senior Counsel appearing for the appellant-petitioner submits that the petitioner has already Page 1 of 6 undergone incarceration for about two years out of the total sentence awarded to him i.e. five years.
Mr. Dhal learned Senior Counsel has taken me to the evidence of P.W.3 and emphasized paragraph-5 of the testimony of P.W.3, who is the I.O. of this case. Thereafter, he has taken me to the findings recorded by the learned trial Court in paragraph-8.3. Conjoint reading of the aforesaid paragraphs from the evidence as well as the judgment, only lead to the conclusion that in the present case, the prosecution has failed to prove the compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act.
Mr. Dhal, learned Senior Counsel has also taken me to Ext. P/1. Perusal of the said exhibit also reveals that, except the signature of the accused obtained in the format, nothing is coming forth as to whether the contents of the format, which is the written consent was explained to the accused or not. Moreover, even if the Ext. P/1 is accepted, it was mandatory on the part of the Investigating Officer to comply Section 50(5) of the N.D.P.S. Act.
Perusal of the evidence of P.W.3 reveals that the requirement of compliance of Section 50(5) of the NDPS Act has not been done. In that view of the matter, Mr. Dhal, learned Senior Counsel for the Page 2 of 6 petitioner submits that the petitioner is entitled to be admitted to bail during the pendency of Appeal.
5. It is no more res integra that compliance of Section 50 of N.D.P.S. Act is mandatory. The Hon'ble Supreme Court in the case of Arif Khan @ Agha Khan v. State of Uttarakhand, reported in (2018) 18 SCC 380 has held the same. The relevant part of the said judgment is reproduced for the purpose of appreciation of proposition of law in regard to the same:-
"18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 :
1999 SCC (Cri) 1080] and Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] .
19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] has settled the aforementioned questions after taking into considerations all previous case law on the subject.
20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is Page 3 of 6 ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981] .)
21. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband "charas" from the appellant and, if so, whether it was done in the presence of a Magistrate or a gazetted officer so as to make the search and recovery of contraband "charas" from the appellant in conformity with the requirements of Section 50.
22. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a gazetted officer.
23. It is the case of the prosecution and which found acceptance by the two courts below that since the appellant- accused was apprised of his right to be searched in the presence of either a Magistrate or a gazetted officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant- accused gave his consent in writing to be searched by the police officials (raiding party), the two courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.
24. We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 :
(2011) 1 SCC (Cri) 497] . This we say for the following reasons:
24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer.
24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the Page 4 of 6 contraband "charas" was not made from the appellant in the presence of any Magistrate or gazetted officer. 24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "charas" from him, was the gazetted officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer.
24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a gazetted officer."
6. Taking into consideration the aforementioned, I am inclined to admit the appellant-petitioner on bail.
7. Let the appellant-petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.20,000/-(rupees twenty thousand) with one local solvent surety for the like amount to the satisfaction of the learned trial Court subject to condition that he shall not indulge in any criminal activities in any manner and any other conditions to be imposed by the learned trial Court deem fit and proper.
Violation of any of the conditions shall entail cancellation of the bail.
8. The I.A. is disposed of accordingly.
Page 5 of 6Issue urgent certified copy of this order as per rules.
(S.S. Mishra) Judge CRLA No.589 of 2025 Order No.
04. 1. List this matter after four weeks before the assigned Bench.
(S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Jan-2026 19:43:16 Page 6 of 6