Orissa High Court
Deepak Agrawal @ Deepu vs State Of Odisha ...... Opp. Party on 4 October, 2021
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 2508 Of 2021
An application under section 439 of the Code of Criminal
Procedure in connection with Markatnagar P.S. Case No.20 of
2021 corresponding to G.R. Case No.122 of 2021 pending on the
file of S.D.J.M. (Sadar), Cuttack.
----------------------------
Deepak Agrawal @ Deepu ...... Petitioner
-Versus-
State of Odisha ...... Opp. Party
For Petitioner: - M/s. Yasobanta Das
(Senior Advocate)
Devashis Panda
Sudipto Panda
D.K. Mohapatra
B. Jena
For Opp. party: - Mr. Jyoti Prakash Patra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Order: 04.10.2021
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S.K. SAHOO, J. The petitioner Deepak Agrawal @ Deepu has
knocked at the portals of this Court by filing this application
under section 439 of Code of Criminal Procedure seeking for bail
in connection with Markatnagar P.S. Case No.20 of 2021
// 2 //
corresponding to G.R. Case No.122 of 2021 pending on the file of
learned S.D.J.M. (Sadar), Cuttack in which charge sheet has
been submitted for the offences punishable under sections 417,
420, 272, 273 of the Indian Penal Code, sections 51, 52, 53, 59
of the Food Safety and Standard Act, 2006 (hereafter referred to
as '2006 Act'), sections 33 and 36 of the Legal Metrology Act,
2009 (hereafter referred to as '2009 Act') and Rule 32 of the
Legal Metrology (Packaged Commodities) Rules, 2011 (hereafter
referred to as '2011 Rules).
The petitioner moved an application for bail in the
Court of learned 1st Additional Sessions Judge, Cuttack, which
was rejected vide order dated 23.03.2021 mainly on the ground
that the investigation of the case was under progress and the
complete chain of adulteration was to be unearthed and there
was every chance of tampering with the evidence.
2. The factual matrix of the case on hand is that,
Pradipta Kishore Naik, Inspector in-charge of Markatnagar police
station, Cuttack UPD drew up a plain paper F.I.R. to the effect
that on 30.01.2021 while he was in the police station, he got
credible information regarding storage of huge quantity of
adulterated and duplicate ghee at Plot No.7D/1275, Sector-9,
C.D.A., Cuttack by the petitioner. He conducted confidential
enquiry and during enquiry, he ascertained that the information
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received was correct. He intimated the fact to his superiors and
also gave requisition to the Food Safety Officer, C.M.C., Cuttack
and Senior Inspector, Legal Metrology, Cuttack-II to accompany
with him during the search. He along with his staff proceeded to
the spot for conducting search in the house of the petitioner to
verify the authenticity of the information and he procured two
independent witnesses, namely, Bikash Bhanja and Satyananda
Das on the way. At about 12.20 p.m., they reached in the house
of the petitioner and noticed that the petitioner was present in
his house. On being asked, the petitioner disclosed that he was
selling different brands of ghee and other burning oils in his
house to different small shops at Cuttack and Angul. On
verification of his house, it was noticed that there was storage
huge quantities of ghee of different brands. There was storage of
Balaji Puja Vanaspati Binayak ghee in plastic jars of different
quantities, tin jars of Rice bran oil, Maa Tarini til oil (each 100
ml.), Binayak ghee jars (empty jars of different quantities), Jyoti
Castrol oil jars (empty jars), Bijaya til oil (empty jars each 200
grams), Binayak til oil (empty jars each 1 kg.), Binayak honey
(empty jars each 50 gram), one seed packet of Kumkum seed
which was used especially to bring colour in ghee and one
electronic weighing machine, packing materials and gas burners.
On being asked, the petitioner failed to produce any kind of
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authority for manufacturing and possessing the above articles.
Since the above activities of the petitioner seemed to be illegal
to the informant, he kept the spot guarded and made requisition
to the Health Officer, C.M.C., Cuttack for deputation of Food
Safety Officer and to the Assistant Controller, Weighing and
Metrological Department, Cuttack to depute one of the officers to
assist him and to remain present during the search. The Senior
Inspector, Weighing and Metrology Department and Food Safety
Officer arrived at the spot along with their respective team at
2.30 p.m. and in presence of the witnesses, Inspector of
Weighing and Metrology Department and Food Safety Officer, the
search of the house of the petitioner was conducted and 10 nos.
of empty Bijaya til oil plastic bottles (each 200 gram), 10 nos. of
empty Binayak til oil plastic bottles (each 200 gram), 40 nos. of
empty plastic bottles of Binayak honey (each 50 gram), five nos.
of paper cartoons containing 91 numbers of one kg. Binayak Puja
Vanaspati ghee plastic jars, three nos. of paper cartoons
containing 74 numbers of 500 grams Binayak Puja Vanaspati
ghee plastic jars, 22 nos. of tin containers containing Rice bran
oil (each 15 ltrs), one polythene packet containing one kg. of
Kumkum seeds, one electronic weighing machine and three
numbers of silver trays were found during the search.
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On detailed verification of the above materials and
after discussion with the Food Safety Officer and Metrology
officials, it was ascertained that the petitioner was manufacturing
ghee like substance by mixing palmolein, Vanaspati seeds for
colour and other chemicals which were fully adulterated.
Similarly, he was procuring different kinds of oil and was
preparing til/castor oil by mixing the same with other chemicals.
The petitioner was selling the above products after packing the
same in plastic containers/bottles with brand name Binayak
ghee, Balaji Puja Vanaspati ghee and Maa Tarini castor/til oil etc.
with false, deceptive and misleading claim. The petitioner falsely
represented the products as ghee and circulated the same in
market for sell to common men and thereby forced the common
men to use the same and the petitioner was also using different
kinds of weighing instruments which were not renewed or
certified by the appropriate authorities. The Food Safety Officer
collected samples in duplicate i.e. (i) Binayak ghee 500 ml. five
plastic jars, (ii) Maa tarini til oil 100 ml. six bottles. She packed
and sealed all the sample packets in presence of the witnesses
and the petitioner. They handed over one collected, packed and
sealed sample packet from the each packed sample to the
informant for further action. They took one packet with them for
onward transmission to the Deputy Director -cum- Food Analyst
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to Government of Odisha for examination and opinion. He seized
the above materials (excluding the sample items) under proper
seizure list and drew up plain paper F.I.R. at the spot.
3. On the basis of such plain paper F.I.R., Markatnagar
P.S. Case No.20 of 2021 was registered under sections 417, 420,
272, 273 of the Indian Penal Code read with sections 51, 52, 53
and 59 of the 2006 Act, sections 33, 36 of the 2009 Act and Rule
32 of the 2011 Rules against the petitioner.
The I.I.C., Markatnagar police station directed Jyoti
Prakash Sahoo, S.I of police to take up investigation of the case.
During course of investigation, as prima facie case was made out
against the petitioner, the I.O. arrested the petitioner on
30.01.2021 and forwarded him to the Court of learned S.D.J.M.
(Sadar), Cuttack. He seized exhibits collected by the Food Safety
Officer, C.M.C., Cuttack and took steps for sending the same to
the State Food Testing Laboratory, Bhubaneswar for chemical
examination and the food analysis report was obtained. As the
petitioner was in judicial custody and the stipulated period under
section 167 of Cr.P.C. was going to be completed and some
steps were yet to be taken to ascertain the involvement of other
persons, the I.O. prayed to D.C.P., Cuttack U.P.D. to pass order
to submit charge sheet against the petitioner keeping the
investigation open under section 173(8) of Cr.P.C. and
Page 6 of 22
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accordingly, he received order to submit charge sheet against
the petitioner.
From the fact and circumstances, the investigating
officer found prima facie case under sections 417, 420, 272, 273
of the Indian Penal Code, sections 51, 52, 53, 59 of the 2006
Act, sections 33, 36 of the 2009 Act and Rule 32 of the 2011
Rules against the petitioner and accordingly on 30.05.2021, he
submitted charge sheet against the petitioner keeping the
investigation open under section 173(8) of Cr.P.C.
4. Mr. Yasobanta Das, learned Senior Advocate
appearing for the petitioner contended that the ingredients of
none of the offences alleged against the petitioner are made out
since the manufacture and sale of the product was not meant for
human consumption but for puja purposes only which was clearly
reflected on the label of the manufactured product where the
word 'ghee' is conspicuously absent and it is specified as 'non-
edible' and 'not for human consumption'. The provisions of the
2006 Act, 2009 Act and 2011 Rules under which the F.I.R. has
been registered and first charge sheet has been submitted are
prima facie not made out. According to Mr. Das, 2006 Act applies
to substances intended for human consumption and not to non-
edible products. The implication of the petitioner in the case
basing on the alleged statement of the investigating officer
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suspecting that the petitioner had indulged in manufacturing and
marketing for sale for human consumption is based on no
material as the labels clearly indicate that the products were not
meant for human consumption and for puja use only with the
words 'non-edible' written boldly on the labels. He argued that in
the absence of any material to show that the articles were being
purchased and used for human consumption, no criminal liability
can be attached to the petitioner's business activities which is
neither illegal nor prohibited inasmuch as the petitioner had a
license for such manufacturing activities which expired in March
2020 and could not be renewed on account of COVID-19
pandemic. It is further argued that the mere recovery of the
manufactured products by itself cannot be construed as
incriminating against the petitioner in the commission of the
penal offences for which he has been forwarded. It is further
argued that in view of the Food Analyst report, the prima facie
ingredients of offences under sections 272 and 273 of the Indian
Penal Code are also not attracted. The petitioner is having no
criminal antecedents and he has remained in judicial custody for
a substantial period and the major part of investigation is now
over and the petitioner being a resident of CDA under
Markatnagar police station, there is no chance of his absconding
or tampering with the evidence as the witnesses to the seizure
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are mainly official witnesses and therefore, the bail application
may be favourably considered.
Mr. Jyoti Prakash Patra, learned counsel for the
State, on the other hand, vehemently opposed the prayer for bail
and contended that the statements of some witnesses indicate
that Binayak Vanaspati was used by them for food purpose,
since it was less costly and sold in the market at Rs.120/- to
150/- per packet in spite of specification of the articles written
boldly on the labels. It is argued that the report of Food Analyst,
Government of Odisha indicates that the sample has been tested
as Vanaspati falling under Regulation No.2.2.6:1 of the Food
Safety and Standards (Food Products Standards and Food
Additives) Regulations, 2011 and opined to be 'sub-standard'
under section 3(1)(zx) of 2006 Act. It is further argued that the
further investigation of the case is under progress and therefore,
at this stage, it would not be proper to grant bail to the
petitioner as it would give a wrong signal to the society.
5. During course of hearing of the bail application, a
query was made to the learned counsel for the State as to
whether the seized articles are harmful to human health if it is
utilized for puja purpose. The learned counsel for the State
produced a letter dated 02.09.2021 of the S.I. Police,
Markatnagar police station addressed to the Deputy Director
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Food Analyst, State Food Testing Laboratory, Govt. of Odisha,
Bhubaneswar to analyse whether the sample emits harmful gas
when burnt during puja purpose which would be harmful to
human health, if inhaled and whether it is harmful for human
health, if consumed during puja purpose in any manner.
Subsequently, he produced the report of the Deputy Director
-cum- Food Analyst to Govt. of Odisha dated 27.09.2021 which
indicates that it was not in the purview of the laboratory to test
for emission of harmful gases during burning of ghee for puja
purpose and that the sample is not a food product and it cannot
be used for human consumption in any manner. The
investigating officer shall find out which authority can answer the
query made him in the letter dated 02.09.2021 and accordingly,
sample be sent to the concerned authority for analysis. However,
if it is found that it is within the purview of the laboratory of
Deputy Director -cum- Food Analyst to Govt. of Odisha to test
and furnish the analysis report as sought for in the letter dated
02.09.2021 and that the Deputy Director had tried to misguide
the investigating officer and the Court, appropriate action shall
be taken against him in accordance with law.
6. 2006 Act was enacted for laying down science-based
standards for articles of food and to regulate their manufacture,
storage, distribution, sale and import and to ensure availability
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of safe and wholesome food for human consumption and for
matters connected therewith or incidental thereto. It is a piece of
consumer legislation which regulates to some extent the
consumer-supplier relations. Consumerists demand enforcement
of discipline among the producers or manufacturers of food to
ensure safety in the realm of food. Food adulteration, even if it
be only to the slightest extent, is likely to adversely affect the
health of every human being. Even marginal or border line
variations of the prescribed standards under 2006 Act are
matters of serious concern for all as public interests are involved
in them. The Act does not provide for exemption of marginal or
border line variations of the standard from the operation of the
Act. An article of food when a standard has been fixed under
2006 Act has to be observed in every detail. The consumer's
legitimate ignorance and his almost total dependence on the
fairness and competence of those who supply his daily needs
have made him a ready target for exploitation. The purpose of
enactment of the Act is to protect the consumers against
outright frauds.
Section 97 of 2006 Act provides for repeal of
enactments as specified in the Second Schedule to the said Act.
In the Second Schedule to the Act, the first Act that is to be
repealed is the Prevention of Food Adulteration Act, 1954.
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Though 2006 Act received the assent of the President of India on
23rd August 2006 and published in the Gazette of India on 24th
August 2006 but the provisions of different sections were
enforced from different dates. Section 97 as well as sections 51,
52, 53, 59 of 2006 Act was brought into force on 29th July 2010.
7. Section 31 of the 2006 Act provides for licensing and
registration of food business and stipulates that no person shall
commence or carry on any food business except under a licence.
Sub-section (2) of Section 31 exempts a petty manufacturer who
himself manufactures or sells any article of food or a petty
retailer, hawker, itinerant vendor or a temporary stall holder or
small scale or cottage or such other industries relating to food
business or tiny food business operator. However, it provides
that they shall register themselves with such authority and in
such manner as may be specified by Regulations, without
prejudice to the availability of safe and wholesome food for
human consumption or affecting the health of the consumers.
Sub-section (3) of this section provides that any person desirous
to commence or carry on any food business shall make an
application for grant of a license to the Designated Officer in
such manner containing such particulars and fees as may be
specified by regulations. Sub-section (4) provides that the
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Designated Officer on receipt of an application under sub-section
(3), may either grant the license or after giving the applicant an
opportunity of being heard and for reasons to be recorded in
writing, refuse to grant a license to any applicant, if he is
satisfied that it is necessary so to do in the interest of public
health and shall make available to the applicant a copy of the
order. Proviso to sub-section (4) stipulates that if a license is not
issued within two months from the date of making the
application or his application is not rejected, the applicant may
start his food business after expiry of the said period and in such
a case, the Designated Officer shall not refuse to issue a license
but may, if he considers necessary, issue an improvement notice
under section 32 and follow procedures in that regard. Sub-
section (8) of section 31 provides for an appeal against the order
of rejection for the grant of license which shall lie to the
Commissioner of Food Safety. Proviso to sub-section (9)
stipulates that if an application for renewal of a license is made
before the expiry of the period of validity of the license, the
license shall continue to be in force until orders are passed on
the application.
Though contentions were raised by the learned
counsel for the petitioner that the petitioner had a license for
such manufacturing activities which expired in March 2020 and
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could not be renewed on account of COVID-19 pandemic, but
neither the charge sheet submitted mentions in that respect nor
any document in that respect has been filed with the bail
application by the petitioner or produced during course of
hearing of bail application.
8. During course of investigation, the investigating
officer sought for opinion from the Food Safety Officer, Cuttack
Municipal Corporation, Cuttack on 20.02.2021 on the following
aspects of sample collected:-
(i) Whether Binayak Ghee (Vanaspati) are
adulterated ghee or not?
(ii) Whether the above ghee are unsafe,
noxious to human health or not?
(iii) Whether the above ghee products are
misbranded/substandard or not?
(iv) Whether there is any legal terminology like
Vanaspati or not? If yes, then what is its
resemblance with ghee?
(v) Whether Maa tarini til oil are genuine til oil
having all its properties or not?
(vi) Whether any licence of authority was issued
to the accused or in the brand name Harsh
Industries or not for manufacturing of such
product?
(vii) Any other opinion which may be treated as
vital evidence during the process of
investigation.
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The report of Food Analyst, Government of Odisha
dated 17.03.2021 indicates that the sample has been tested as
Vanaspati, falling under Regulation No.2.2.6:1 of the Food Safety
and Standards (Food Products Standards and Food Additives)
Regulations, 2011 and opined to be 'sub-standard' under section
3(1)(zx) of 2006 Act.
The term 'food' has been defined in section 3(1)(j) of
2006 Act. An article of food shall be deemed to be 'sub-standard'
under section 3(1)(zx) of 2006 Act, if it does not meet the
specified standards but not so as to render the article of food
unsafe. The term 'unsafe food' in section 3(1)(zz) of 2006 Act
means an article of food whose nature, substance or quality is so
affected as to render it injurious to health.
In the case of Raj Kumar -Vrs.- The State of Uttar
Pradesh reported in A.I.R. 2019 Supreme Court 4902,
Hon'ble Justice Deepak Gupta speaking for the Bench held as
follows:
"8. We are of the considered view that once
standards are laid down by the legislature then
those standards have to be followed. In items
like milk which is a primary food, under the Act,
it is not necessary to also prove that the food
item had become unfit for human consumption
or injurious to health. In cases of food coming
Page 15 of 22
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under the Act, it is not required to prove that
article of food was injurious to health. In this
case, the only question to be determined is
whether the article complies with the standards
laid down or not? If it fails to comply with the
standards then it will have to be treated as an
adulterated article even if it is not rendered
injurious to health. Even marginal deviation from
the prescribed standard cannot be ignored."
The purpose for which articles of 'food' covered by
the 2006 Act are manufactured, distributed or sold was that they
should reach the consumers to be used as 'food'. Thus, the use
of the article sold was not entirely irrelevant. It is more correct
to say that it is presumed from the nature of the article itself or
the circumstances and manner of offering it for sale. Where
circumstances raise a genuine doubt on the question whether
what was kept by a seller was 'food' at all, this must be resolved
by the evidence in the case. It is matter of common knowledge
that certain articles, such as milk or bread or butter or food
grains are meant for human consumption as food. Other articles
may be presumed to be meant for human consumption from
representations made about them or from circumstances in
which they are offered for sale. Where an article is generally or
commonly not used for human consumption or in the preparation
of human food but for some other purpose, notwithstanding that
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it may be capable of being used, on rare occasions, for human
consumption or in the preparation of human food, it may be said,
depending on the facts and circumstances of the case, that it is
not 'food'.
When the sample collected in the case in hand is not
a food product and it cannot be used for human consumption in
any manner as per the report of the Deputy Director -cum- Food
Analyst to Govt. of Odisha dated 27.09.2021 and it is specified in
the articles as 'non-edible' and 'not for human consumption' and
'for puja use only' written boldly on the labels, in view of report
of Food Analyst that the sample was 'sub-standard' or in other
words, the standards that have been specified under 2006 Act
for Vanaspati were not met, by no stretch of imagination, it can
be said that the samples taken from the articles seized from the
petitioner be deemed to be injurious to health and as such prima
facie it does not attract the provisions under sections 51, 52, 53,
59 of 2006 Act.
Section 272 of the Indian Penal Code deals with
punishment for adulteration of food or drink intended for sale. In
order to attract the ingredients of offence under section 272 of
the Indian Penal Code, the following ingredients are required to
be satisfied:
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(i) the article involved was food or drink meant to be
consumed by the live persons;
(ii) the accused adulterated it;
(iii) such adulteration rendered the food or drink as
noxious; and
(iv) the accused adulterated it with intention to sell
such article as food or drink or knew it to be likely
that such article would be sold as food or drink.
Section 273 of the Indian Penal Code deals with
punishment for sale of noxious food or drink and for such
offence, the following ingredients are required to be satisfied:
(i) selling or offering or exposing for sale as food or
drink some article;
(ii) such article must have become noxious or must
be in a state unfit for food or drink;
(iii) the sale or exposure must have been made with
a knowledge or reasonable belief that the article is
noxious as food or drink.
'Noxious' means making the food or drink as
poisonous or harmful or both and thereby unfit for human
consumption. Mere possession or storage of noxious food or
drink would not attract the ingredients of offence under section
273 of the Indian Penal Code, unless it is sold or offered or
exposed for sale having knowledge or reason to believe that food
or drink has become noxious.
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In view of report of Food Analyst dated 17.03.2021
that the sample was 'sub-standard' under section 3.1(zx) of
2006 Act and further report dated 27.09.2021 that the sample is
not a food product and cannot be used for human consumption
in any manner and more particularly when the articles have been
specified as 'non-edible' and 'not for human consumption' and
'for puja use only' written boldly on the labels, therefore, the
prima facie ingredients of the offences under sections 272 and
273 of the Indian Penal Code are lacking. However, since the
investigation is still continuing, no final conclusion can be arrived
at this stage. Coming to the contentions raised by learned
counsel for the State that Binayak Vanaspati was used by some
persons for food purpose, since it was less costly and sold in the
market in spite of specification of the articles written boldly on
the labels, whether liability can be fixed on the petitioner for
such use by such persons is to be adjudicated by the learned
trial Court at the appropriate stage and it would not be proper to
express any opinion on the same.
9. Law is well settled that while considering an
application for the grant of bail, the following factors are to be
taken into account:
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(i) The nature of the alleged offence, the nature of the
accusation and the severity of the punishment in the case of a
conviction;
(ii) Whether there exists a reasonable apprehension of the
accused tampering with the witnesses or being a threat to the
complainant or the witnesses;
(iii) The possibility of securing the presence of the accused at the
trial or the likelihood of the accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to
the accused;
(v) Whether prima facie the ingredients of the offence are made
out, on the basis of the allegations as they stand, in the F.I.R.;
(vi) The significant interests of the public or the State and other
similar considerations.
(Ref: Arnab Manoranjan Goswami -Vrs.- State of
Maharashtra; (2021) 2 Supreme Court Cases 427)
In view of the foregoing discussions, when the
investigation has almost reached at a penultimate stage and first
charge sheet has been filed and food analyst reports have been
collected, material witnesses who are mostly the official
witnesses have been examined, in absence of any criminal
antecedents against the petitioner, the nature of accusations
Page 20 of 22
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against him, the nature of punishment prescribed for the
offences alleged under 2006 Act, 2009 Act and 2011 Rules, the
period of detention in judicial custody and absence of any chance
of absconding, I am inclined to release the petitioner on bail
subject to following conditions:-
(i) He shall furnish bail bond of Rs.2,00,000/-
(rupees two lakh) with two local solvent sureties
each for the like amount to the satisfaction of the
learned Court in seisin over the matter with such
terms and conditions as the learned Court may deem
just and proper;
(ii) He shall not commit the alleged manufacturing,
storage, distribution and selling activities except in
accordance with law;
(iii) He shall not try to come in contact with any of
the prosecution witnesses or tamper with the
evidence;
(iv) He shall appear before the investigating officer
as and when required till conclusion of further
investigation;
(v) He shall not indulge in any criminal activities;
(vi) He shall appear before the learned trial Court on
each date to which the case would be posted for trial.
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Violation of any of the terms and conditions shall
entail cancellation of bail.
Accordingly, the BLAPL is allowed.
10. Before parting, I would like to place it on record by
way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose
of disposing of the prayer for bail made by the petitioner.
Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for
decision in the case which shall naturally have to be done by the
trial Court at the appropriate stage of the trial.
Issue urgent certified copy as per Rules.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 4th October 2021/RKMishra Page 22 of 22