Orissa High Court
Goura Ghibala vs State Of Odisha ... Opp. Party on 1 February, 2021
Author: S.K. Sahoo
Bench: S.K. Sahoo
BLAPL No. 2068 of 2020 1
1. Goura Ghibala
2. Rajib Nag
3. Naresh Kumar Ahir ... Petitioners
-Versus-
State of Odisha ... Opp. party
08. 01.02.2021 The matter is taken up through Video
Conferencing.
Heard learned counsel for the petitioners
and learned counsel for the State.
This is an application under section 439 of
Cr.P.C. for grant of bail to the petitioners in
connection with Nuapada P.S. Case No.17 of
2020 corresponding to S.A. Case No.11 of 2020
pending in the Court of learned Sessions Judge
-cum- Special Judge, Nuapada for offences
punishable under section 21(c) of the N.D.P.S.
Act and section 27(b)(ii) and 28 of the Drugs
and Cosmetics Act and section 25 of the Arms
Act.
The petitioners moved an application for
bail before the learned Sessions Judge-cum-
Special Judge, Nuapada which was rejected on
17.02.2020.
Learned counsel for the petitioners
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submitted that the petitioners are in judicial
custody since 31.01.2020 and two vehicles were
seized for carrying thirty four cartoons of ESKUF
cough syrup in a Bolero Pick-up van bearing
registration No. OD-03-J-7845 in which the
petitioner no.1 and two other co-accused
persons were the occupants and three cartoons
of ESKUF cough syrup in a Hyundai i20 car in
which the petitioners nos.2 and 3 were the
occupants. Each of the cartoons was having 100
bottles in it. It is further submitted that so far as
the vehicle in which the petitioners nos.2 and 3
were the occupants, the total number of ESKUF
cough syrup bottles was found to be 480 bottles
and if the codeine phosphate found in each
bottle is taken into account, since each bottle of
ESKUF cough syrup contains 200 mg. of codeine
phosphate then the total quantity of codeine
phosphate in 480 bottles comes to 96 grams,
which is lesser than the commercial quantity. It
is further submitted that in view of the codeine
phosphate found in the ESKUF cough syrup
bottles found in three cartoons seized from the
vehicle in which petitioners nos.2 and 3 were the
3
occupants and since it does not come within the
purview of 'commercial quantity' and the bar
under section 37 of the N.D.P.S. Act is not
applicable, therefore, the bail application of
petitioners nos.2 and 3 may be favourably
considered.
Learned counsel for the State does not
dispute that the quantity of codeine phosphate
found the ESKUF cough syrup bottles in the
three cartoons was lesser than commercial
quantity, however, he submitted that if the
codeine phosphate found in ESKUF cough syrup
bottles in the 34 nos. of cartoons of cough syrup
bottles seized from the vehicle where the
petitioner no.1 and other co-accused were the
occupants is taken into account, then it comes
within the purview of 'commercial quantity' and
therefore, the bar under section 37 of the
N.D.P.S. Act is applicable. He further submitted
that the case diary does not indicate about any
criminal antecedents against the petitioners
nos.2 and 3.
Considering the submissions made by the
learned counsel for the respective parties, the
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period of detention of the petitioners nos. 2 and
3 in judicial custody, the codeine phosphate
found in 480 bottles seized in three cartoons,
which is lesser than the commercial quantity and
absence of bar under section 37 of the N.D.P.S.
Act for such quantity, I am inclined to release
the petitioners nos.2 and 3 on bail.
Let the petitioners no.2 (Rajib Nag) and
petitioner no. 3 (Naresh Kumar Ahir) be
released on bail in the aforesaid case on
furnishing bail bond of Rs. 50,000/-(rupees fifty
thousand) each with two solvent sureties each
for the like amount to the satisfaction of the
learned Court in seisin over the matter with
further terms and conditions as the learned
Court may deem just and proper.
So far as petitioner no.1- Goura Ghibala is
concerned, since commercial quantity of codeine
phosphate was found in thirty four cartoons of
cough syrups seized from the vehicle where the
petitioner no.1 and other co-accused were
occupants and the bar under section 37 of the
N.D.P.S. Act, I am not inclined to release the
petitioner no.1 on bail. However, I direct the
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learned trial Court to expedite the trial and
conclude the same within a period of six months
from the date of receipt of a copy of the order.
The petitioner no.1 is at liberty to renew his
prayer for bail after examination of the material
witnesses in the trial Court.
The BLAPL is accordingly disposed of.
Issue urgent certified copy as per Rules.
.............................
S.K. Sahoo, J.
PKSahoo