Orissa High Court
Petitioners vs State on 21 January, 2019
Author: A. K. Mishra
Bench: A. K. Mishra
BLAPL No.4170
1 of 2017
BLAPL Nos.4170, 6464, 6879,8478,5353 and
8548 of 2017 and 2354, 2672 and 2674 of 2018
Prakash Kumbhar (in BLAPL No.4170 of 2017)
Santosh Das (in BLAPL No.6464 of 2017)
Ramkumar Rajput (in BLAPL No.6879 of 2017)
Ananta Das (in BLAPL No.8478 of 2017)
Gouranga Meher (in BLAPL No.5353 of 2017)
Sumanta Khatua (in BLAPL No.8548 of 2017)
Mana Sahu (in BLAPL No.2354 of 2018)
Balu Khilla (in BLAPL No.2672 of 2018)
Santosh Golory (in BLAPL No.2674 of 2018)
.........Petitioners
Vrs.
State of Odisha ........Opp. Party
19. 21.01.2019 In all these petitions made U/s. 439 Cr.P.C., the
petitioners have prayed bail for being accused of offences
under Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as „NDPS Act‟) involving commercial
quantity for which bar under Section 37 of NDPS Act is
required to be considered.
2. As the common question arises in all the above cases,
hearing is taken up to consider the submissions of learned
counsel for the parties.
3. Though several decisions are cited by learned counsel
for both the parties, only relevants are referred to contextually
to avoid multiplicity.
3-(a) Learned counsel S.R. Mohapatra and Mr. Manas
Chand submit that when the mandatory provisions of the
NDPS Act such as Sec-42(1) and sec-50(1) are found
2
contravened or not complied with, the trial is vitiated and
accused is entitled to bail. In support of his contention, they
cited the decisions.
(i) (1994) 7 OCR -460 Rabi Sahoo vs State
(ii) 1991 (11)OLR-475 Satyabrata @ Sarat Mallia and
another vs. State
(iii) (1996) 10 OCR-372 Umakanta Patel vs. State.
(iv) (2010)47 OCR (SC) -752 Sami Ullaha vs.
Superintendent, Narcotic Central Bureu.
(v) (2013) 54 OCR-841 Thane Singh vs Central Bureau of
Narcotics.
Sami Ullaha case deals with cancellation of bail under
Section 439 Cr.P.C. after receipt of second report of
laboratory. The said decision is no help to the point posed
here. The Thane Singh decision has been relied upon by the
learned Additional Government Advocate and the same shall
be dealt with later.
It may be noted that the cited Rabi Sahoo decision has
been referred to in the subsequent Umakanta Patel case.
In Satyabrata (supra) case it is held as follows:-
"If the accused is to be released on bail, the Court has to
record its satisfaction that there are reasonable grounds
to believe that the accused is not guilty of the offence
charged. Sub-sec, (i)(b)(ii) of Section 37 of the Act requires
that the Public Prosecutor has to be given an opportunity
to oppose such application for such release. This has a
definite purpose and the Public Prosecutor has a vital
role to play in the whole process of reaching the
satisfaction by the Court and is required to present the
entire material collected against the accused effectively
and in opposition to the application of bail showing that
no reasonable ground exists for believing that the
accused is not guilty of the offences charged". Then His
3
Lordship granted bail In view of violation of the statutory
safeguards contained in Sec, 50(1) of the Act.
In Umakanta Patel (supra) case it is held as follows-:
"8. xxxxxxx As has been stated earlier certain provisions
including Section 50 of the Act are mandatory and non-
observance thereof vitiates the trial. Resort to Sections
42 and 50 of the Act is taken at the initial stage of
investigation and compliance thereof can very well be
ascertained from the case diary. So in course of hearing
of an application for bail if on scrutiny of the diary, it
appears that the procedural safeguards have not been
followed, the Court can look to the same for the limited
purpose of finding whether there are reasonable grounds
to believe that the accused is not guilty. This finding of
the Court, however, cannot be equated with the one
which is recorded at the end of the trial to pronounce
judgment. It may well be argued that even though non-
observance of the statutory provisions is apparent on the
face of the record, yet in course of trial it can supply the
omission by leading oral evidence. To my mind, this
cannot be accepted and on mere assumption of the
probable evidence that may be led by the prosecution,
accused cannot be refused bail."
9. In view of my discussions made above, while
respectfully agreeing with the views propounded in Rabi
Sahoo, (1994) 7 Ori CR 460 (supra), Fakir Sundari,
(1995) 8 Ori CR 320 (supra) and Narahari Das (supra), I
would hold that due to infraction of the requirements
of Section 50 of the Act the accused is entitled to be
released on bail".
3-(b). Learned counsel for the petitioner Mr. S. N. Das
relying upon the decision reported in AIR 2017 (S.C)-5500 -
(2018) 11 SCC -1 Nikesh Tarachand Shah vs Union Of
India contended that similar provision like sec-37 of The
NDPS Act has been declared unconstitutional as it violates
Articles 14 and 21 of the Constitution of India.
4
Putting emphasis upon the word "oppose", Mr. Das
further submits that in view of the direction of Hon‟ble
Supreme Court in Hussain & Anr. v. Union of India
(CrA.509/201 judgment dt. 09-03-2017) reported in 2017 (5)
SCC-702 to the effect that, the sessions trials where accused
are in custody shall be normally concluded within two
years; it is imperative to maintain consistency with that
direction and the public prosecutor must address the right
to speedy trial of accused and in doing so, must show the
contribution of accused, if any, to cause delay in trial and
where no fault is attributable, the court can ignore such
„oppose‟ and on consideration of other factors required u/s
439 Cr.P.C can dispose of the bail petition.
Both the above decisions will be discussed later with
reference to the points urged.
3-(c). Learned Addl. Govt. Advocate, Mr. A. N. Das submits
in reply that the direction of Hon‟ble Supreme Court in
Husain case (supra) is mandatory and is to be implemented
but the same has no effect for the purpose of consideration
of bail petition under Section 37 of the NDPS Act.
It is categorically submitted by Mr. Das on behalf of
the State that in order to give effect, the direction of Hon‟ble
Supreme Court in Hussain Case, this Court can give any
direction to speed up the trial and to ensure the completion
of trial within two years. Beyond the above, nothing more
can be done by this Court while considering the bail petition
under 37 of NDPS Act.
5
Referring A.R. Anthulle case, 1992 1 SCC 225, Thane
Singh vrs. Central Bureau of Narcotics reported in 2013 (2)
SCC 590 and Supreme Court Legal Aid Committee vrs.
Union of India and others reported in (1994) 6 SCC 731
learned Additional Government Advocate further contended
that the interest of society is to be kept in view while
releasing the accused in the case under NDPS Act and the
directions of in Hussain judgment are to be balanced as far
as possible.
It is noteworthy to mention that all the above decisions
cited by learned Addl. Government Advocate, Mr. Das have
been referred to in the Hussain case (supra) for which I do
not think proper to burdensome this order further.
Lastly, Mr. Das, learned Addl. Government Advocate
while opposing the bail application submits that twin
conditions test as provided u/s 37 of the NDPS Act is
mandatory as per the decisions rendered by the Hon‟ble
Supreme Court in the case of Satpal Singh Vrs. the State
of Punjab reported in 2018 (5) SCALE 519, and drew the
attention of this court to the following of that decision:-
"Under Section 37 of the NDPS Act, when a person is
accused of an offence punishable under Section 19 or 24
or 27A and also for offences involving commercial
quantity, he shall not be released on bail unless the
Public Prosecutor has been given an opportunity to
oppose the application for such release, and in case a
Public Prosecutor opposes the application, the court must
be satisfied that there are reasonable grounds for
believing that the person is not guilty of the alleged
offence and that he is not likely to commit any offence
while on bail. Materials on record are to be seen and the
6
antecedents of the accused are to be examined to enter
such a satisfaction. These limitations are in addition to
those prescribed under the Cr.P.C or any other law in
force on the grant of bail. In view of the seriousness of
the offence, the law makers have consciously put such
stringent restrictions on the discretion available to the
court while considering application for release of a
person on bail. It is unfortunate that the provision has
not been noticed by the High Court. And it is more
unfortunate that the same has not been brought to the
notice of the Court."
4. In the face of learned counsel‟s contention, it is
apposite to refer first the decision Hussain & Anr. v. Union
of India reported in 2017 (5) SCC-702. The Hon‟ble Apex
court in that case considering the question as to the
circumstances in which bail can be granted on the ground of
delayed proceedings when a person is in custody on the
allegation of having committed offence under Section 21(c) of
the Narcotics Drugs and Psychotropic Substances Act, 1985
(the NDPS Act) ,has given direction as follows-:
"27. To sum up:
(i) The High Courts may issue directions to subordinate
courts that -
(a) Bail applications be disposed of normally within one
week;
(b) Magisterial trials, where accused are in custody, be
normally concluded within six months and sessions
trials where accused are in custody be normally
concluded within two years;
(c) Efforts be made to dispose of all cases which are five
years old by the end of the year;
(d) As a supplement to Section 436A, but consistent with
the spirit thereof, if an undertrial has completed period of
custody in excess of the sentence likely to be awarded
if conviction is recorded such undertrial must be released
on personal bond. Such an assessment must be made by
the concerned trial courts from time to time;
7
(e) The above timelines may be the touchstone for
assessment of judicial performance in annual
confidential reports.
(emphasis added)
(ii) The High Courts are requested to ensure that bail
applications filed before them are decided as far as
possible within one month and criminal appeals where
accused are in custody for more than five years are
concluded at the earliest;
(iii) The High Courts may prepare, issue and monitor
appropriate action plans for the subordinate courts;
(iv)The High Courts may monitor steps for speedy
investigation and trials on administrative and judicial
side from time to time;
(v) The High Courts may take such stringent measures as
may be found necessary in the light of judgment of this
Court in Ex. Captain Harish Uppal (supra).
28. Accordingly, we request the Chief Justices of all High
Courts to forthwith take appropriate steps consistent
with the directions of this Court in Hussain Ara Khatoon
(1995) 5 SCC 326) (supra), Akhtari Bi (Smt.) (supra), Noor
Mohammed (supra), Thana Singh (supra), S.C. Legal Aid
Committee (supra), Imtiaz Ahmad (supra), Ex. Captain
Harish Uppal (supra) and Resolution of Chief Justices'
Conference and observations hereinabove and to have
appropriate monitoring mechanism in place on the
administrative side as well as on the judicial side for
speeding up disposal of cases of undertrials pending in
subordinate courts and appeals pending in the High
Courts.''
5. Having heard learned counsel for both sides, it is
pertinent to note that the applicability of 37 of NDPS Act,
and the conditions required to be satisfied in addition to the
limitations available under Section 439 Cr.P.C. are no more
res integra. Hence on this score this Court is not called upon
to formulate any point for consideration. The factual aspect
of each case is to be examined while going through the
respective bail petitions.
8
Matter does not rest here. What is not agreed is the
disagreement on point of the direction given in the Hussain
decision (supra) by the Hon‟ble Supreme Court. Hence, this
aspect of implementing the direction of Hon‟ble supreme
court in Hussain & Anr. v. Union of India case while
considering the bail application u/s 37 of NDPS Act is
required to examined and for that following questions arise.
5-(a). Whether there is a need to address the Twin
conditions test as provided u/s 37 of the NDPS
Act when the public prosecutor while opposing
the bail application does not attribute any fault to
accused for the delay in trial referring the trial
time as per the direction of Hon‟ble supreme court
in Hussain & Anr. v. Union of India
(CrA.509/201 judgment dt.09-03-2017) to the
effect that, the sessions trials where accused are
in custody be normally concluded within two
years?
5-(b). How can these two imperatives i.e Twin
conditions test as per sec-37 of the NDPS Act and
conclusion of trial within two years as per
Hussain & Anr. be met ?
6. Plain reading of the provision under Section 37 of the
NDPS Act does not postulate any ambiguity and it reads as
follows-
9
"37. Offences to be cognizable and non-bailable.-(1)
notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section 27 A
and also for offences involving commercial quantity shall
be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application,
the court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and that
he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations
under the Code of Criminal Procedure, 1973 (2 of 1974)
or any other law for the time being in force, on granting
of bail."
7. It is not disputed that twin conditions test is
mandatory when the bail application is opposed by the
public prosecutor. Since the release of accused coming
under the cloud of sec 37 of NDPS Act is stiff, the trial is to
be concluded at the earliest. Here the direction of Hon‟ble
supreme court in Hussain & Anr. v. Union of India to
conclude trial within two years is to be carried forward.
7-(a). The position on this context earlier to Hussain case-
direction dtd.09.03.2017 needs to be encapsulated first.
In the case of Union Of India vs Rattan Mallik @
Habul on 23 January, 2009 2009 (1) SCC -482 the Hon‟ble
apex court has reiterated that-:
"11. The broad principles which should weigh with the
Court in granting bail in a non-bailable offence have been
enumerated in a catena of decisions of this Court and,
10
therefore, for the sake of brevity, we do not propose to
reiterate the same. However, when a
prosecution/conviction is for offence(s) under a special
statute and that statute contains specific provisions for
dealing with matters arising there under, including an
application for grant of bail, these provisions cannot be
ignored while dealing with such an application. As
already noted, in the present case, the respondent has
been convicted and sentenced for offences under
the NDPS Act and therefore, while dealing with his
application for grant of bail, in addition to the broad
principles to be applied in prosecution for offences
under the Indian Penal Code, 1860 the relevant provision
in the said special statute in this regard had to be kept in
view.
Xxx
14. We may, however, hasten to add that while
considering an application for bail with reference
to Section 37 of the NDPS 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 NDPS 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 case of Union of India v. Shiv Shanker Kesari,
(2007) 7 SCC 798 held as under:-
"The expression used in Section 37(1)(b)(ii) is "reasonable
grounds". The expression means something more than
prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the
offence charged and this reasonable belief contemplated
in turn points to existence of such facts and
circumstances as are sufficient in themselves to justify
recording of satisfaction that the accused is not guilty of
the offence charged.
11
The word "reasonable" has in law the prima facie
meaning of reasonable in regard to those circumstances
of which the actor, called on to act reasonably, knows or
ought to know. It is difficult to give an exact definition of
the word "reasonable".
8. Position post Hussain case may now be seen.
8-(a). The case of Union of India v. Niyazuddin Sk. &
Another (judgment dt. 24-07-2017) reported in 2017(4) RCR
(Criminal) 644, the Hon‟ble Supreme Court has also held
that-:
"The accusation in the present case is with regard to the
fourth factor namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under Section 37 of the NDPS Act, in case, the court
proposes to grant bail to such a person, two conditions
are to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr.P.C. or any
other enactment. (1) The court must be satisfied that
there are reasonable grounds for believing that the
person is not guilty of such offence; (2) that person is not
likely to commit any offence while on bail."
9. Significantly though in different statute, Hon‟ble
Supreme Court did not show favour to twin conditions test
and the rationale behind it. The said decision reported in AIR
2017 (S.C)-5500 -(2018) 11 SCC -1 Nikesh Tarachand Shah
vs Union Of India on 23 November, 2017 is helpful to
answer the points posed in the case at hand. Section 45(1) of
the Prevention of Money Laundering Act, 2002 has been
declared unconstitutional by the Hon‟ble Supreme Court
insofar as it imposes two further conditions for release on
bail, as it violates Articles 14 and 21 of the Constitution of
12
India. It cannot be lost sight that Section 45(1) of the
Prevention of Money Laundering Act, 2002, and section 37
the Narcotics Drugs and Psychotropic Substances Act, 1985
(the NDPS Act) are in pari materia. While analyzing, the
Hon‟ble Supreme court has observed therein as follows -:
"33. Also, the classification contained within the NDPS
Act is completely done away with. Unequals are dealt
with as if they are now equals. The offences under
the NDPS Act are classified on the basis of the quantity
of narcotic drugs and psychotropic substances that the
accused is found with, which are categorized as: (1) a
small quantity, as defined; (2) a quantity which is above
small quantity, but below commercial quantity, as
defined; and (3) above commercial quantity, as defined.
The sentences of these offences vary from 1 year for a
person found with small quantity, to 10 years for a
person found with something between small and
commercial quantity, and a minimum of 10 years upto 20
years when a person is found with commercial quantity.
The twin conditions specified in Section 37 of the NDPS
Act get attracted when bail is asked for only insofar as
persons who have commercial quantities with them are
concerned. A person found with a small quantity or with
a quantity above small quantity, but below commercial
quantity, punishable with a one year sentence or a 10
year sentence respectively, can apply for bail
under Section 439 of the Code of Criminal Procedure
without satisfying the same twin conditions as are
contained in Section 45 of the 2002 Act, under Section
37 of the NDPS Act. By assimilating all these three
contraventions and bracketing them together, the 2002
Act treats as equal offences which are treated as
unequal by the NDPS Act itself, when it comes to
imposition of the further twin conditions for grant of bail.
This is yet another manifestly arbitrary and
discriminatory feature of the application of Section"
10. Viewing the provision of law and precedential position
reiterated from time to time, it is important to advert that the
concern of the Hon‟ble Apex Court for the liberty of accused
and his right to speedy justice has always been expressed in
13
unambiguous words. Right to speedy trial and twin
conditions test for bail u/s 37 NDPS Act are separate but
interrelated. The important one is the former because of the
fact that trial time has been prescribed in Hussain & Anr. v.
Union of India (supra). The same is certain, predictable and
is potent enough to relax to some extent the problem of
pretrial detention.
The later one, twin conditions test as provided u/s 37
of NDPS Act, is uncertain and meant to be ascertained mostly
by guess work. When release of the under trial prisoner (UTP)
is associated with the result of guesswork or conjecture, the
trial time assumes primacy. The contribution of UTP to cause
delay in the proceeding should be an important factor within
the ambit of "oppose the application" by the public
prosecutor. Twin conditions are a much higher threshold bar
than any of the conditions which are ascertainable prima
facie.
The cause and consequence of failure to address delay
in trial and the contribution of UTP thereto while opposing
the bail application by learned public prosecutor cannot be
overlooked because the preemption of that step would draw
court to the next step as to whether to make twin conditions
test or not. In order to ensure the primacy of "oppose to bail
application stage", the delaying factors are required to be
placed in no uncertain terms. Attribution of fault in this
regard to UTP must be specific and definite. Failure to do so,
may lead such objection to implicit negation of trial time
14
prescribed in Hussain & Anr. v. Union of India (supra).In
such a situation, the court may not be under any compulsion
to go for twin conditions test. For these reasons, when the
public prosecutor does not oppose the bail application
referring fault of the U.T.P. to cause delay in trial referring the
direction of Hon‟ble Supreme Court, there is no need to go for
the Twin conditions test as provided u/s 37 of the NDPS Act.
11. The imperatives of sec 37 of NDPS Act and the
direction of Hon‟ble the supreme court in case of Hussain &
Anr. v. Union of India (supra) to the effect that, the sessions
trials where accused are in custody be normally concluded
within two years, can be given effect in the following manner:-
11-(a). While opposing the bail application, the
delaying factors and fault of UTP must be placed specifically
by the learned public prosecutor.
11-(b). Where the trial as per Hussain judgment
stipulation either could not have been concluded or cannot be
adhered to and for such deficiency no fault is attributed to
U.T.P. while opposing bail application, the court may hesitate
to make twin conditions test as provided u/s 37 of the NDPS
Act.
12. In view of the above legal position drawn on analysis,
let the fact of the bail petitions at hand be seen specifically for
disposal.
15
BLAPL No.4170 of 2017
In this case the petitioner, namely, Prakash
Kumbhar is an accused for commission of offence under
Section 20(b)(ii)(C) of NDPS Act, 1985, for having in
possession of three packets containing 14 Kg. 730gms, 25kg
570gms and 21kg 195gms of Ganja in connection with
Gochhapada P.S. Case No.56 of 2015 corresponding to G.R.
Case No.76 of 2015 of the court of learned Sessions Judge-
cum-Special Judge, Kandhamal, Phulbani.
Accused, Prakash Kumbhar is in custody since
21.09.2017.
Having regards to the quantity of contraband, I
am not satisfied that accused will not commit similar type of
offence after release. Hence I am inclined to reject the bail
petition. The Trial Court is directed to complete the trial
within four months hence.
BLAPL No.6464 of 2017
In this case the petitioner namely, Santosh Das is an
accused for commission of offence under Section 20(b)(ii)(C) of
NDPS Act, 1985, for having in possession of 64Kg. of Ganja
in connection with P.R. No.37 of 2017-18 EI & EB Unit-II,
Cuttack corresponding to 2(a) CC No.11 of 2017 of the court
of learned Special Judge-cum-Sessions Judge, Cuttack.
Learned counsel for the petitioner submits that the
accused was a passenger of a TATA ZEST Vehicle bearing
16
Registration No.OD-01F-9446 and is in custody since
17.06.2017.
It is also submitted that the informant is the
Investigating Officer and the trial is vitiated as per decision of
Mohan Lal Vrs. State of Punjab (2018) SCC online SC 974.
He further submits that the mandatory provision under
section 42(2) of the NDPS Act has been violated as the
Superior Officer has not been informed. While opposing the
bail the learned Additional Standing Counsel submits that all
the mandatory provisions have been complied with.
Nothing has been stated as to the delay in trial and fault
of U.T.P. No criminal antecedent is shown against the
accused. For the facts not disputed by State, I am inclined to
grant bail.
Let the accused be admitted to bail on such terms and
conditions to be imposed by the learned Trial Court.
BLAPL No.6879 of 2017
In this case the petitioner namely, Ramkumar Rajput is
an accused for commission of offence under Section
20(b)(ii)(c) of NDPS Act, 1985, for having in possession of 28
Kg. 700 gms. of Ganja in connection with Padwa P.S. Case
No.65 of 2017 corresponding to T.R. No.12 of 2017 of the
court of learned Addl. Sessions Judge-cum-Special Judge,
Koraput.
Learned counsel for the petitioner submits that three
bags were seized containing contraband Ganja about 28 Kg
and the number of passengers in the car were 5 and for that
17
it cannot be said that the petitioner was in possession of
contraband article more than commercial quantity.
Further it is stated that the petitioner is in custody
since 28.07.2017 and trial has not yet been concluded. Added
to that he submits that, the mandatory provisions for search
and seizure are not followed.
Learned Additional Standing Counsel opposes the bail
stating that the mandatory provisions have been complied
with and seized article is more than commercial quantity.
Nothing is stated about delay in trial and the fault of
U.T.P. No criminal antecedent of the petitioner is shown.
Hence I am satisfied that the petitioner will not likely to
commit any offence after release on bail.
Having regards to the above facts and custody period, I
am inclined to release the accused on bail.
Let the accused be admitted to bail on such terms and
conditions to be imposed by the learned Trial Court.
BLAPL No.8478 of 2017
In this case the petitioner namely, Ananta Das is an
accused for commission of offence under Section 20(b)(ii)(C) of
NDPS Act, 1985, for having in possession of 20Kg. 100Gms.
of Ganja in connection with P.R. No.53 of 2017-18 of S.I. of
Excise, District Mobile Squad, Angul corresponding to Special
(NDPS) Case No.13 of 2017 of the court of learned Special
Judge, Angul.
18
Learned counsel for the petitioner submits that the
seized quantity of contraband article is 20 Kg. 100gms for
which the accused is in custody since 21.09.2017 and the
informant of this case is the Investigating Officer for which
trial is vitiated as per decision of Hon‟ble Supreme Court in
Mohan Lal Vrs. State of Punjab (2018) SCC online SC 974.
Further it is submitted that the mandatory provision under
section 50 of the NDPS Act has not been complied with.
Learned Addl. Government Advocate opposes the bail
stating that the seized contraband Ganja is 21 Kg. 100 gms.
and the mandatory provisions have been complied with and
there is no instruction about the cause of delay in trial.
Having regards to the above fact and custody period the
petitioner is entitled to bail.
Let the accused be admitted to bail on such terms and
conditions to be imposed by the learned Trial Court.
BLAPL No.5353 of 2017
In this case the petitioner namely, Gouranga
Meher is an accused for commission of offence under Section
20(b)(ii)(c) of NDPS Act, 1985, for having in possession of 22
Kg. 150 Gms. of Ganja in connection with Dhama P.S. Case
No.83 of 2017 corresponding to T.R. Case No.62 of 2017 of
the court of learned Sessions Judge-cum-Special Judge,
Sambalpur.
19
The learned Additional Standing Counsel opposes the
bail application stating that the seized contraband Ganja
involves commercial quantity and all the mandatory
provisions required under the NDPS Act have been complied
with.
Accused is in custody since 21.06.2017. Nothing has
been stated about delay in trial. No criminal antecedent of
petitioner is brought to the notice of the Court.
Having regards to the material placed, I am satisfied
that the petitioner is not likely to commit any offence while on
bail and prima facie is not guilty of offence. Hence, he is
entitled to be released on bail.
Let the accused be admitted to bail on such terms and
conditions to be imposed by the learned Trial Court.
BLAPL No.8548 of 2017
In this case the petitioner namely, Sumanta Khatua is
an accused for commission of offence under Section
20(b)(ii)(c) of NDPS Act, 1985 in connection with Boudh P.R.
Case No.11 of 2017 corresponding to 2(a) CC No.3 of 2017 of
the court of learned Special Judge, Boudh.
It is submitted by learned counsel for the petitioner
that the accused-petitioner is in custody since 09.10.2017
and has been prejudiced as the informant is the Investigating
Officer of this case. Further it is submitted that the
mandatory provision under section 55 and 57 of NDPS Act
20
are not complied with and relying upon the decision of the
case of Mohan Lal vs. State of Pubjab reported in 2018
SCC online SC 974 and persuaded the court to take a view
that the chance of conviction of accused is remote.
Learned Additional Government Advocate opposes the
bail stating that the investigation by the informant is not
prejudicial and for that no adverse view can be taken against
the prosecution. Further it is also contended that though the
stage of trial is not known the mandatory provision under
sections 55 and 57 are complied with and for that the
accused is not to be benefited.
In view of the Three Judge Bench decision of Hon‟ble
Supreme Court in Mohan Lal case (supra), prejudice has
already been caused to face fair trial. No criminal antecedent
is shown for which I am satisfied that the petitioner is not
likely to commit any offence while on bail.
Regards being had to the above facts, I am inclined to
grant bail to the petitioner.
Let the accused be admitted to bail on such terms and
conditions to be imposed by the learned Trial Court.
BLAPL No.2354 of 2018
In this case the petitioner namely, Mana Sahu is an
accused for commission of offence under Section 20(b)(ii)(c) of
NDPS Act, 1985, for having in possession of 145 Kg. 320 gms.
of Ganja in connection with Kantamala P.S. Case No.43 of
21
2014 corresponding to C.T. Case No.195 of 2014 of the court
of learned Addl. District & Sessions Judge-cum-Special
Judge, Boudh vide Special Case (NDPS Act) No.1/2014(T).
Learned counsel for the petitioner submits that the
accused-petitioner is in custody since 29.05.2014. 145Kg.
320Gms of Ganja was seized from the house, but not from the
conscious possession of the accused. It is stated that accused
is 72 years old and trial is yet to be completed. Learned
counsel for the petitioner also referring the deposition of
P.W.1-A.S.I. of Kantamal Police Station submits that while
seizure of contraband article was made from the veranda of
the house, the accused was found in the backside of the
house but the occupants of the house were lady members and
children.
Learned Additional Government Advocate opposes the
bail stating that the last date to record the evidence by the
lower court was 3.9.2018. With regards to possession of
contraband article by the accused, it is stated that the house
from where the seizure was made belonged to the accused-
petitioner.
No criminal antecedent is shown against the accused.
Learned Additional Government Advocate is unable to
attribute any fault to the petitioner for the delay in trial since
29.5.2014.
Having regards to the age of the petitioner and custody
period, I am inclined to admit the petitioner on bail.
22
Let the accused be admitted to bail on such terms and
conditions to be imposed by the learned Trial Court.
BLAPL No.2672 of 2018
In this case the petitioner namely, Balu Khilla is an
accused for commission of offence under Section 20(b)(ii)(c) of
NDPS Act, 1985, for having in possession of 76 Kg. 830 gms.
of Ganja in connection with Padwa P.S. Case No.03 of 2017
corresponding to T.R. Case No.01 of 2017 of the court of
learned Addl. Sessions Judge-cum-Special Judge, Koraput.
Heard learned counsel for the petitioner and learned
Additional Government Advocate for the State.
The report of Additional District & Sessions Judge-cum-
Special Judge, Koraput dated 5.12.2018 reveals that the
Commission was appointed to examine one official witness
and the date was fixed awaiting Commission Report. It is also
reported therein that the case is likely to be disposed of by the
end of April, 2019.
Both the learned counsel for the petitioner and learned
AGA stated to have no information about further development
in the trial.
Learned counsel for the petitioner submits that the
accused-petitioner was a passenger in the Auto Rickshaw and
is in custody since 6.1.2017 and there is no antecedent
against him. He further referring substantial evidence of one
23
Bhakta Muduli-P.W.4 stated that in the Auto, seven
passengers were available.
Regards being had to the report of learned trial court
that trial is to be completed by April, 2019, I am not inclined
to grant bail to the petitioner. The trial court is directed to
expedite trial. The petitioner is at liberty to renew the bail
prayer if trial is not completed by the end of April, 2019.
BLAPL No.2674 of 2018
In this case the petitioner namely, Santosh Golory is an
accused for commission of offence under Section
20(b)(ii)(c)/29 of NDPS Act, 1985, for having three nos. of
polythene bags containing 60 Kg. 320 Gms. of Ganja in
connection with Nandapur P.S. Case No.97 of 2017
corresponding to T.R. Case No.17 of 2017 of the court of
learned Addl. Sessions Judge-cum-Special Judge, Koraput.
Learned counsel for the petitioner submits that the
accused-petitioner is in custody since 13.9.2017 and trial has
not yet been completed and he was one of the passengers in
Toyota Qualis vehicle bearing Registration No. CH-04-1885.
Learned counsel for the petitioner further submits that no
independent witness was present at the time of seizure.
Learned AGA opposes the bail stating that this
accused-petitioner is involved in another NDPS case and he
24
was an occupant of the vehicle from which seizure of 61 Kgs
of Ganja was made.
In view of the involvement of the petitioner in another
NDPS case, the commission of this type of offence by him
after release is not ruled out. Hence I am not inclined to grant
bail.
Accordingly the bail petition stands rejected.
The learned Trial Court is directed to expedite the trial
keeping in view the guideline of the Hon‟ble Supreme Court in
the case of Hussain & Anr. Vrs. Union of India, 2017 (5)
SCC 702.
..............................
Dr. A. K. Mishra, J.
mkp