Orissa High Court
Satish Singh vs State Of Orissa ....... Opposite Party on 8 February, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 10542 Of 2021
An application under section 439 of the Code of Criminal
Procedure in connection with Special G.R. Case No.36 of 2021
pending in the Court of Sessions Judge -cum- Special Judge,
Malkangiri.
----------------------------
Satish Singh ....... Petitioner
-Versus-
State of Orissa ....... Opposite Party
For Petitioner: - Mr. Shyam Manohar
Advocate
For Opp. party: - Mrs. Susamarani Sahoo
Addl. Standing Counsel
---------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Argument: 03.02.2023 Date of Order: 08.02.2023
---------------------------------------------------------------------------------------------------
S. K. SAHOO, J. This is the 3rd successive bail application of the
petitioner Satish Singh who is in judicial custody since
07.03.2021 in connection with Mathili P.S. Case No. 42 of 2021
corresponding to Special G.R. Case No.36 of 2021 pending in the
Court of Sessions Judge -cum- Special Judge, Malkangiri for the
offence under section 20(b)(ii)(C) of the N.D.P.S. Act.
// 2 //
2. The prosecution case, in short, is that on 07.03.2021
at 6.30 p.m., Krutibas Behera, the S.I. of Police of Salimi
Outpost under Mathili police station in the district of Malkangiri
submitted a written report before the I.I.C., Mathili police station
that on 06.03.2021 at about 11.30 p.m., while he was
performing night patrolling and MV checking duty on NH-326
near Govindapalli bus stand, at about 12.35 a.m. one Maruti
Suzuki vehicle and Toyota Corolla vehicle back to back came in
high speed from Malkangiri side. On suspicion, the informant
stopped both the vehicles and in Maruti Suzuki vehicle bearing
registration No.HR-22-4972, four persons were found sitting
including the driver and in the Toyota Corolla vehicle bearing
registration No.HR-12-J-1000, four persons were also there
including the driver. When the informant asked them to show the
documents of the vehicles, they denied of having the same. As
suspicion arose, the informant conducted verification of the
vehicles and noticed that the Maruti Suzuki vehicle was
containing two nos. of plastic sacks packed with something,
which were loaded in the backside dickey and in the Toyota
Corolla vehicle, three nos. of plastic sacks packed with
something were loaded in the backside dickey. From the pungent
smell coming out from the plastic sacks, the informant suspected
Page 2 of 19
// 3 //
that it was ganja and accordingly, he asked the drivers and other
occupants of both the vehicles about the loaded plastic sacks of
the vehicles, but they fumbled initially to give any answer and
thereafter, they confessed that ganja has been kept in the plastic
sacks. The occupants including the drivers of both the vehicles
disclosed their names and addresses. The petitioner Satish Singh
was found moving in Toyota Corolla vehicle. The accused
persons also disclosed that they have procured ganja from
Chitrakonda Swabhiman area and were transporting the same in
the two vehicles. In presence of independent witnesses, the
plastic sacks were opened and from the colour, smell, shape of
the articles found inside the plastic sacks and from his own
departmental experience, the informant was confirmed that it
was ganja. The accused persons failed to produce any licence or
authority for possession of huge quantity of ganja kept in the
five plastic sacks. During personal search of the petitioner, one
mobile phone, aadhar card, original voter identity card, one pan
card, driving licence, Axis Bank Debit card, Axis Visa Credit card
etc. were found and those were seized. On weighment, the gross
weight of the ganja came to be 138 kg. 300 grams and samples
in duplicate were collected from each of the plastic sacks and the
sample packets and bulk quantity of ganja were separately
Page 3 of 19
// 4 //
seized and sealed and the seizure list was prepared and the
accused persons with the seized articles were taken to Mathili
police station where first information report was lodged.
3. The first bail application of the petitioner in BLAPL
No. 2562 of 2021 was disposed of as withdrawn as per order
dated 06.11.2021. The second bail application of the petitioner in
BLAPL No.10163 of 2021 was also disposed of as withdrawn on
09.09.2022. After withdrawal of the second bail application, the
petitioner has not moved the learned trial Court again for bail,
but he has annexed the rejection order dated 08.03.2021 with
the present bail application, which was also annexed to the
second bail application i.e. BLAPL No.10163 of 2021. In this third
bail application, it has also not been mentioned that the
petitioner approached this Court in BLAPL No.10163 of 2021 and
thus, there is suppression of the fact.
4. Mr. Shyam Manohar, learned counsel appearing for
the petitioner contended that the similarly situated co-accused
persons, namely, Raghu and Ram Chandra Mali have been
released on bail by a Coordinate Bench of this Court in BLAPL
No.2430 of 2021 and BLAPL No. 2571 of 2021 respectively. He
further submitted that in view of non-compliance of the
mandatory provisions under sections 42 and 50 of the N.D.P.S.
Page 4 of 19
// 5 //
Act and release of the similarly situated co-accused persons on
bail, the bail application of the petitioner may be favourably
considered.
Mrs. Susamarani Sahoo, learned Addl. Standing
Counsel for the State, on the other hand, opposed the prayer for
bail and contended that since commercial quantity of ganja has
been seized from the possession of the petitioner while he along
with others were transporting the same in two vehicles, in view
of the bar under section 37 of the N.D.P.S. Act, the petitioner is
not entitled to be released on bail. She further submitted that
petitioner is a man from the State of Haryana and once he is
released on bail, it would be difficult to ensure his attendance at
the time of trial in case he absconds.
5. On perusal of the bail order passed in the case of the
co-accused Raghu in BLAPL No. 2430 of 2021, which was
disposed of on 14.10.2022, it appears that similar contentions
were raised by the same counsel relating to non-compliance of
the mandatory provisions under sections 42 and 50 of the
N.D.P.S. Act and the learned Single Judge after taking note of
the citations placed by the learned counsel for both the parties,
came to hold that the petitioner cannot take a ground that there
was non-compliance of section 42 of the N.D.P.S. Act as on a
Page 5 of 19
// 6 //
bare reading of the F.I.R., it appears that the police party had
intimated the fact to their superior officer over phone and
therefore, non-compliance of section 42 involves factual aspect
and hence, the same is a matter of trial. However, so far as
section 50 of the N.D.P.S. Act is concerned, the learned Single
Judge has been pleased to hold that upon careful scrutiny of the
provision in section 50 of the N.D.P.S. Act and further keeping in
view the analysis of law made by the Hon'ble Supreme Court and
applying the same to the facts of the present case and
considering the mandatory nature of the provision, on careful
scrutiny of the F.I.R. as well as records produced, the Court was
of the considered opinion that no opportunity as has been
provided under section 50 of the N.D.P.S. Act was ever given to
the petitioner in that case and therefore, on the basis of the
materials available on record, the Court was constrained to hold
that the provision prima facie contained in section 50 of the
N.D.P.S. Act has not been complied with in the case though the
Court further held that such finding is subject to a detail
evidence to be laid during trial. Learned Single Judge further
held that the bar contained in section 37 of the N.D.P.S. Act
would not be strictly applicable to the facts of the case. It was
further held that if prima facie from record/F.I.R., it can be
Page 6 of 19
// 7 //
established that sections 42 and 50 of the N.D.P.S. Act, which
are mandatory in nature, have not been complied with, the Court
considering the bail application can always use the same as
ground to enlarge the petitioner on bail and in such event, the
power contained in section 37 of the N.D.P.S. Act would not be
attracted to the facts of the case. Accordingly, the learned Single
Judge granted bail to the said co-accused with certain conditions.
In the bail application of the co-accused Rama
Chandra Mali bearing BLAPL No.2571 of 2021, the learned Single
Judge only considering that the petitioner is in judicial custody
for one and half years and the trial is not likely to be commenced
in the near future, directed him to be released on bail with
certain terms and conditions.
6. Section 37 of the N.D.P.S. Act opens with a non-
obstante clause. Non-obstante clause must be given its due
importance. The powers of the High Court to grant bail under
section 439 Cr.P.C. are subject to the limitations contained in
section 37 of the N.D.P.S. Act. Once the Public Prosecutor
opposes the application for bail to a person accused of the
enumerated offences under section 37 of the N.D.P.S. Act, in
case, the Court proposes to grant bail to such a person, two
mandatory conditions are required to be satisfied in addition to
Page 7 of 19
// 8 //
the normal requirements under the provisions of the Cr.P.C. or
any other enactment. The Court must be satisfied that there are
reasonable grounds for believing that the person is not guilty of
such offence and that he is not likely to commit any offence
while on bail. The satisfaction of the Court about the existence of
the said twin conditions is for a limited purpose and is confined
to the question of releasing the accused on bail. The expression
"reasonable grounds" used in section 37(1)(b)(ii) of the N.D.P.S.
Act connotes substantial probable causes which in turn points to
existence of such facts and circumstances as are sufficient in
themselves to justify recording of such satisfaction. Whether the
grounds are reasonable or not depend on the circumstances in a
given situation. The Court while dealing with an application for
bail is not called upon to record a finding of 'not guilty' but to see
if there are reasonable grounds for believing that the accused is
not guilty and records its satisfaction about the existence of such
grounds. Additionally, the Court has to record a finding that
while on bail, the accused is not likely to commit any offence and
there should also exist some materials to come to such a
conclusion.
Page 8 of 19
// 9 //
In the case of Supdt. Narcotics Control Bureau,
Chennai -Vrs.- R. Paulsamy reported in (2000) 9 Supreme
Court Cases 549, the Hon'ble Supreme Court held as follows:-
"6. In the light of Section 37 of the Act, no
accused can be released on bail when the
application is opposed by the Public Prosecutor
unless the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offences and that he is not likely
to commit any offence while on bail. It is
unfortunate that matters which could be
established only in offence regarding compliance
with Sections 52 and 57 have been pre-judged
by the learned Single Judge at the stage of
consideration for bail. The minimum which
learned Single Judge should have taken into
account was the factual presumption in law
position that official acts have been regularly
performed. Such presumption can be rebutted
only during evidence and not merely saying that
no document has been produced before the
learned Single Judge during bail stage regarding
the compliance with the formalities mentioned in
those two sections."
In case of Union of India -Vrs.- Rattan Mallik @
Habul reported in (2009) 42 Orissa Criminal Reports (SC)
697, the Hon'ble Supreme Court held as follows:-
Page 9 of 19
// 10 //
"13. It is plain from a bare reading of the non-
obstante clause in the Section 37 of the N.D.P.S.
Act and sub-section (2) thereof that the power
to grant bail to a person accused of having
committed offence under the N.D.P.S. Act is not
only subject to the limitations imposed under
Section 439 of the Code of Criminal Procedure,
1973, it is also subject to the restrictions placed
by clause (b) of sub-section (1) of Section 37 of
the N.D.P.S. Act. Apart from giving an
opportunity to the Public Prosecutor to oppose
the application for such release, the other twin
conditions viz; (i) the satisfaction of the Court
that there are reasonable grounds for believing
that the accused is not guilty of the alleged
offence; and (ii) that he is not likely to commit
any offence while on bail, have to be satisfied. It
is manifest that the conditions are cumulative
and not alternative. The satisfaction
contemplated regarding the accused being not
guilty, has to be based on "reasonable grounds.
The expression "reasonable grounds" has not
been defined in the said Act but means
something more than prima facie grounds. It
connotes substantial probable causes for
believing that the accused is not guilty of the
offence he is charged with. The reasonable belief
contemplated in turn, points to existence of such
facts and circumstances as are sufficient in
themselves to justify satisfaction that the
Page 10 of 19
// 11 //
accused is not guilty of the alleged offence.
(Vide Union of India -Vrs.- Shiv Shanker
Kesari : (2007) 7 Supreme Court Cases
798). Thus, recording of satisfaction on both the
aspects, noted above, is sine qua non for
granting of bail under the N.D.P.S. Act.
14. We may, however, hasten to add that
while considering an application for bail with
reference to Section 37 of the N.D.P.S. Act, the
Court is not called upon to record a finding of
"not guilty". At this stage, it is neither necessary
nor desirable to weigh the evidence meticulously
to arrive at a positive finding as to whether or
not the accused has committed offence under
the N.D.P.S. Act. What is to be seen is whether
there is reasonable ground for believing that the
accused is not guilty of the offence(s) he is
charged with and further that he is not likely to
commit an offence under the said Act while on
bail. The satisfaction of the Court about the
existence of the said twin conditions is for a
limited purpose and is confined to the question
of releasing the accused on bail."
In the aforesaid case of Rattan Mallick
(supra), Allahabad High Court granted bail to the
appellant convicted under sections 27-A and 29
of the N.D.P.S. Act and sentenced to undergo
rigorous imprisonment for ten years on each
count and to pay a fine of rupees one lakh on
each count with default stipulation, on the
Page 11 of 19
// 12 //
ground of his incarceration for three years and
further holding that there was no chance of his
appeal being heard within a period of seven
years. The Hon'ble Supreme Court held that
those circumstances may be relevant for grant
of bail in the matters arising out of conviction
under the Penal Code, 1860, etc. but are not
sufficient to satisfy the mandatory requirements
as stipulated in clause (b) of sub-section (1) of
section 37 of the N.D.P.S. Act. The Hon'ble
Supreme Court further held that the provisions
of the N.D.P.S. Act and more particularly section
37 of the N.D.P.S. Act were not brought to the
notice of the learned Judge and therefore, the
impugned order having been passed ignoring the
mandatory requirements of section 37 of the
N.D.P.S. Act was held to be not sustainable.
In case of Ratan Kumar Vishwas -Vrs.- State of
Uttar Pradesh reported in (2009) 1 Supreme Court Cases
482, where the judgment of Allahabad High Court dismissing the
application filed by the appellant for suspension of sentence and
grant of bail was challenged, it is held as follows:-
"18. To deal with the menace of dangerous
drugs flooding the market, Parliament has
provided that a person accused of offence under
the Act should not be released on bail during
trial unless the mandatory conditions provided
Page 12 of 19
// 13 //
under section 37 that there are reasonable
grounds for holding that the accused is not
guilty of such offence and that he is not likely to
commit any offence while on bail are satisfied.
So far as the first condition is concerned,
apparently the accused has been found guilty
and has been convicted.
x x x x x x x x x
20. The High Court has dealt with the factual
position in great detail to conclude that the
parameters of section 37 are not fulfilled to
warrant grant of bail by suspension of sentence.
We find no reason to interfere in the matter."
In the case of Asim Kumar Das and
another -Vrs.- State of Orissa reported in
(2018) 69 Orissa Criminal Reports 688, this
Court has held as follows :-
"On perusal of the case records, it prima
facie appears that the petitioners were
present in the car when it was stopped. It
further appears that even though the
driver of the car escaped but the
petitioners were detained while they were
trying to escape from the car. The
witnesses have stated how the option was
given to the accused persons before
search and seizure and how the vehicle
was searched and ganja packet was seized
Page 13 of 19
// 14 //
from the car. Though non-compliance of
section 50 of the N.D.P.S. Act was
highlighted but whether in the facts and
circumstances of the case, such
compliance are necessary or not and if so,
whether materials available on record
indicate such compliance are to be
adjudicated by the learned trial Court at
the appropriate stage of trial. It would not
be proper to give any finding in that
respect at this stage. Any finding regarding
compliance or non-compliance of the
mandatory provisions of the N.D.P.S. Act
at the stage of bail is to be avoided as it
requires complete analysis of oral and
documentary evidence which can be better
appreciated by the trial Court at the
appropriate stage. However, on perusal of
the case records, it indicates that the
documents relating to the unwillingness of
the petitioners to be searched in presence
of Executive Magistrate or Gazetted Officer
are available on record in which the
signatures of the petitioners are also
appearing. Therefore, the contention of the
learned counsel for the petitioners in that
respect is not acceptable."
Page 14 of 19
// 15 //
In the case of State of H.P. -Vrs.- Pawan Kumar
reported in (2005) 4 Supreme Court Cases 350, the Hon'ble
Supreme Court held as follows:-
"11. A bag, briefcase or any such article or
container, etc. can, under no circumstances, be
treated as body of a human being. They are
given a separate name and are identifiable as
such. They cannot even remotely be treated to
be part of the body of a human being.
Depending upon the physical capacity of a
person, he may carry any number of items like a
bag, a briefcase, a suitcase, a tin box, a thaila, a
jhola, a gathri, a holdall, a carton, etc. of
varying size, dimension or weight. However,
while carrying or moving along with them, some
extra effort or energy would be required, They
would have to be carried either by the hand or
hung on the shoulder or back or placed on the
head. In common parlance it would be said that
a person is carrying a particular article,
specifying the manner in which it was carried
like hand, shoulder, back or head, etc.
Therefore, it is not possible to include these
articles within the ambit of the word 'person'
occurring in Section 50 of the Act.
x x x x x x x x x
Page 15 of 19
// 16 //
14....that the provisions of Section 50 will come
into play only in the case of personal search of
the accused and not of some baggage like a bag,
article or container, etc. which (the accused)
may be carrying.
x x x x x x x x x
"27...In view of the discussion made earlier,
Section 50 of the Act can have no application on
the facts and circumstances of the present case
as opium was allegedly recovered from the bag
which was being carried by the accused."
7. Law is well settled that at the stage of consideration
of bail application of an accused in custody, the following aspects
are to be taken into account:-
(i) Prima facie satisfaction of the Court in
support of the accusations;
(ii) Nature of accusation;
(ii) Evidence in support of accusations;
(iv) Gravity of the offence;
(v) Punishment provided for the offence;
(vi) Danger of the accused absconding or fleeing
if released on bail;
(vii) Character/criminal history of the accused;
(viii) Behaviour of the accused;
Page 16 of 19
// 17 //
(ix) Means, position and standing of the accused
in the society;
(x) Likelihood of the offence being repeated;
(xi) Reasonable apprehension of the witnesses
being tampered with;
(xii) Danger, of course, of justice being thwarted
by grant of bail;
(xiii) Balance between the rights of the accused
and the larger interest of the Society/State;
(xiv) Any other factor relevant and peculiar to
the accused;
(xv) While a vague allegation that the accused
may tamper with the evidence or witnesses may
not be a ground to refuse bail, but if the accused
is of such character that his mere presence at
large would intimidate the witnesses or if there
is material to show that he will use his liberty to
subvert justice or tamper with the evidence,
then bail will be refused.
8. Even though two of the co-accused persons have
been granted bail by this Court, but law is well settled that parity
cannot be the sole ground for grant of bail but it is one of the
grounds for consideration of question of bail. A Judge is not
bound to grant bail to an accused on the ground of parity even
where the order granting bail to an identically placed co-accused
contains no cogent reasons or if the same has been passed in
Page 17 of 19
// 18 //
flagrant violation of well settled principle of law and the Judge
ignores to take into consideration the relevant facts essential for
granting bail. Such an order can never form the basis of claim of
parity. It will be open to the Judge to reject the bail application
of the applicant before him as no Judge is obliged to pass orders
against his conscience merely to maintain consistency. The grant
of bail is not a mechanical act. (Ref:- Raju Kumar Kushwa
-Vrs.- State of Orissa reported in (2018) 69 Orissa
Criminal Reports 725)
In the case of co-accused Ram Chandra Mali in BLAPL
No.2571 of 2021, the mandatory provision under section 37 of
the N.D.P.S. Act has not been taken into account while granting
him bail. In the case of Raghu in BLAPL No. 2430 of 2021, bail
has been granted on the ground of non-compliance of the
provision under section 50 of the N.D.P.S. Act at the time of
search and seizure, which is in flagrant violation of well settled
principle of law as laid down by the Hon'ble Supreme Court in
the case of Pawan Kumar (supra) that such compliance is not
necessary in a case of this nature where contraband ganja of
commercial quantity was found in plastic sacks in the vehicle.
Thus, I am of the humble view that such bail orders cannot form
the basis of claim of parity for the petitioner.
Page 18 of 19
// 19 //
9. In view of the foregoing discussions, since the
petitioner was found in the offending Toyota Corolla vehicle in
which commercial quantity of ganja was being transported and
the learned counsel for the appellant has failed to satisfy the
rigours of section 37 of the N.D.P.S. Act, I am not inclined to
release the petitioner on bail. The status report of the learned
trial Court dated 28.11.2022 indicates that out of sixteen charge
sheet witness, one witness has been examined. In view of the
period of detention of the petitioner in judicial custody, the
learned trial Court shall do well to expedite the trial.
Accordingly, the BLAPL stands dismissed.
....................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 8th February 2023/PKSahoo Page 19 of 19