Sukanta Mallik v. State of Odisha

Mr. M. R. Mohanty, AGA CORAM: JUSTICE V. NARASINGH Order No. ORDER 15.05.2026

1. Heard learned counsel for the Petitioner and learned counsel for the State.

2. The Petitioner is an accused in connection with G.R. Case No.51 of 2025(N), pending on the file of learned Sessions Judge-cum-Special Judge, Berhampur, arising out of Digapahandi P.S. Case No.324 of 2025, for commission of alleged offences under Sections 20(b)(ii)(C)1 and 292 of the NDPS Act. 1 20. Punishment for contravention in relation to cannabis plant and cannabis.— Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,— xxx (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,— xxx xxx (ii) where such contravention relates to clause (b),— xxx xxx (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 2 29. Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116

3. Being aggrieved by the rejection of his application for bail U/s.4833 of BNSS by the learned Sessions Judge- cum-Special Judge, Ganjam, Berhampur, by order dated

23.03.2026 in the aforementioned case, the present BLAPL has been filed.

4. The allegation against the present Petitioner is that he was involved in the transportation of contraband (ganja) to the tune of 56Kg 220 Grams. of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which— (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. 3 483. Special powers of High Court or Court of Session regarding bail.—(1) A High Court or Court of Session may direct,— (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice: Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under Section 65 or sub-section (2) of Section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. (2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under Section 65 or sub-section (2) of Section 70 of the Bharatiya Nyaya Sanhita, 2023. (3) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

5. It is submitted by the learned counsel that the Petitioner is in custody from 08.09.2025.

6. It is further submitted by the learned counsel that the Petitioner is lingering in custody because of non- submission of CE Report. Hence, he is entitled to be released on bail.

7. Taking into account such submission of the learned counsel for the Petitioner, a report was called from the learned Court in seisin. The contents of the report dated 12.05.2026 submitted by the learned Sessions Judge-cum-Special Judge, Ganjam is extracted hereunder:-

8. Learned counsel for the State opposes the prayer for bail in view of the bar contained in Section 37(1)(b)(ii)4 of NDPS Act.

9. It is apt to note that this Court is conscious of the judgment of the Apex Court in the case of State of Punjab v. Sukhwindar Singh @ Gora5 relating to an accusation under the NDPS Act where the Apex Court has succinctly stated taking into account the mandatory nature of the twin conditions under Section 37(1)(b)(ii)4 of NDPS Act that “the same entail no relaxation merely on the ground that the accused has undergone prolonged incarceration during the pendency of the trial”. The Apex Court has further stated that the Constitutional Rights of liberty under Article 216 of Constitution of India “the special provision of law under Section 374, NDPS Act are to be read harmoniously and not placed in opposition to each other.” 10 The rival submissions have to be evaluated on the touchstone of the law laid down as above. 4 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)3,— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2[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 oppose 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)4, or any other law for the time being in force on granting of bail. 5 State of Punjab v. Sukhwinder Singh, 2026 SCC OnLine SC 671 6 21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

11. It is submitted at the Bar that the Petitioner is the first offender and considering the lapse on the part of the prosecution in submitting CE Report, this Court is persuaded to hold that further continuance of the Petitioner in custody would be an infraction of his inviolable right under Article 216 of the Constitution of India. In this context, respectful reference can also be made from the judgment of the Apex Court in the case of Rabi Prakash vrs. State of Odisha7.

12. In the aforesaid background, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned Court in seisin so as to ensure his presence during the trial subject to verification of any criminal antecedent. If it comes to the fore that the Petitioner has any criminal antecedent, this order shall not be given effect to.

14. Accordingly, the BLAPL stands disposed of. Urgent certified copy of this order be granted as per rules. (V. NARASINGH) Judge Jina Signature Not Verified Digitally Signed Signed by: JINA DIGAL Reason: Authentication Location: High Court of Orissa Date: 19-May-2026 19:41:18 7 Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109