The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.3873 of 2024 An application under Section 439 of the Code of Criminal Procedure, 1973. Pramod Majhi …. Petitioner Mr. Amit Biswal, Advocate -versus- State of Odisha …. Opp. Party Mr. Debasis Nayak, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 24.09.2024 | Date of Order: 29.10.2024 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State. Perused the bail application, the case diary including the statement of the witnesses, as well as other materials placed on record. Page 1 of 17 2. The present bail application arises out of R.Udayagiri P.S. Case No.78, dated 07.07.2023 which corresponds to G.R. Case No.67 of 2023 pending in the court of learned Sessions Judge-cum-Special Judge, Paralakhemundi, Dist-Gajapati for commission of offence punishable under Section 20(b)(ii)(c) of the N.D.P.S. Act. 3. Learned counsel for the Petitioner at the outset submitted that the Petitioner is languishing in custody since 07.07.2023. He further contended that in the meantime the investigation has been concluded and final form has been submitted on 17.09.2023. He further contended that the Petitioner does not have any similar criminal antecedent and he belongs to the locality, therefore, there is no chance of his absconding. Learned counsel for the Petitioner further laid much emphasis on the fact that the mandatory procedure as prescribed under Section 50 of the N.D.P.S. Act has not been followed in this case, therefore, the Petitioner is entitled to the benefit available in the event Page 2 of 17 such mandatory procedure of section 50 is not followed and accordingly, the Petitioner should be enlarged on bail on any terms and conditions deemed fit by this court. 4. The prosecution story in a nut shell is that on 07.07.2023, the police team of R.Udayagiri Police Station conducted search after getting information that the Petitioner was trying to illegally transport contraband ganja weighing more than the commercial quantity. Further, information was also received from reliable sources that the present Petitioner had stored a huge quantity of contraband ganja on the side of the P.W.D. road near Dabaraguda Chowk and was waiting for a vehicle to transport the contraband ganja to Berhampur. The police team on reaching at the spot apprehended the present Petitioner and conducted a search. On being questioned by the police team, the Petitioner disclosed his identity but was unable to give any satisfactory reply with regard to the procurement and possession of the contraband ganja. It Page 3 of 17 further appears that since no independent witnesses were present at the spot for giving notice under Section 50 of the N.D.P.S. Act, two of the official witnesses i.e. the Constables accompanying the raiding team have been made witness to the search and seizure. 5. Learned counsel for the Petitioner emphatically argued that the procedure as has been laid down in Section 50 of the N.D.P.S. Act has not been followed in its letter and spirit. He contended that as per the requirement of Section 50 of N.D.P.S. Act, a notice in writing is required to be given to the accused-Petitioner thereby providing him with a choice to be searched in presence of a Gazetted Officer or an Executive Magistrate. Learned counsel for the petitioner further submitted that according to the Petitioner such mandatory procedure has not been followed
Facts
in the first place and if the same has been followed, it has been done in a manner that is erroneous and not in accordance with Section 50 of the N.D.P.S. Act. He further Page 4 of 17 submitted that taking into consideration the period of custodial detention of the petitioner as well as the fact that the investigation has been concluded and charge sheet has been filed, the Petitioner be released on bail on any terms and conditions deemed appropriate by this court. 6. Further, in the context of non-compliance of Section 50, learned counsel for the Petitioner referred to Section 50 of the N.D.P.S. Act and contended that the section provides that a prior notice is to be given to the Petitioner giving him an option to be searched in the
Legal Reasoning
passed by this Court in Raghu @ Rahul Rajput Thakur’s case (supra), admittedly there was no compliance of Section 50 of the N.D.P.S. Act. Therefore, the law laid down by this Court in Raghu @ Rahul Rajput Thakur’s case (supra) would not help the Petitioner in the present case. The learned counsel for the Petitioner has cited several other judgments to buttress his arguments, however, the same appear to be merely repetitive in nature to the judgments discussed above. Therefore, this Court is of the view that there is no necessity to go through the said judgments, at this stage, while considering the bail application of the present Petitioner. 13. Mr. Debasis Nayak, learned Additional Government Advocate on the other hand objected to the release of the Petitioner on bail. At the outset learned Additional Government Advocate contended that a total quantity of 150.800 kg. ganja was seized from the conscious and exclusive possession of the present Petitioner. In such view Page 13 of 17 of the matter, learned Additional Government Advocate submitted that the bar under Section 37 of the N.D.P.S. Act would be squarely applicable to the facts of the Petitioner’s case. Learned Additional Government Advocate would further argue that non-compliance of Section 50 of the N.D.P.S. Act as alleged by the learned counsel for the Petitioner, has no basis at all and that the same is not based on any material on record. He further emphatically argued that the option, as is required under Section 50, to be searched in presence of either a Gazetted Officer or an Executive Magistrate has been duly given to the Petitioner and the Petitioner has exercised his option to be searched in presence of an Executive Magistrate. He also referred to the search notice which has been seized by the I.O. during investigation. 14. In the context of search in presence of the Executive Magistrate, learned Additional Government Advocate referred to the statement of the then Additional Tahasildar- Page 14 of 17 cum-Executive Magistrate, R. Udayagiri, namely, one Shri Rajesh Kumar Mohapatra (ORS). By referring to the statement of the above named Executive Magistrate, learned Additional Government Advocate argued that such statement reveals that the procedure as required under Section 50 of the act has been duly complied with in the present case. He further argued that after compliance of the search procedure, the Petitioner has also signed on the seizure list. In reply to the allegation of the Petitioner that no witness was available at the time of search and seizure, learned Additional Government Advocate referred to the statements of the official witnesses on record, which are part of the case diary, and submitted that such official witnesses were present at the spot. He further contended that the statement of the official witnesses categorically reveals that the Petitioner was involved in illegal trade of cannabis. Similarly, learned Additional Government Advocate, referring to the constitution bench judgment in Baldev Singh’s case (supra), contended that the provision Page 15 of 17 under Section 50 is applicable in a case where personal search of a person is required to be carried out. Accordingly, pursuant to the mandate of the statute as well as the dictum of the Hon’ble Supreme Court, a personal search of a person is carried in presence of the Executive Magistrate/ Gazetted Officer who is P.W. No.4. In course of his argument, learned Additional Government Advocate also laid emphasis on the fact that the provisions in Section 43 would apply to the facts of the present case considering the fact that the seizure and the consequential arrest was made at a public place. 15. Considering the submissions made by learned counsels appearing for the both sides, and on a careful examination of the materials on record, this Court is of the considered view that the learned counsel for the Petitioner has failed to make out a case for the release of the Petitioner on bail. Moreover, considering the quantity of contraband ganja seized, i.e. 150.800 kg, which is more Page 16 of 17 than the commercial quantity, it appears that the bar under Section 37 would be directly applicable to the facts of the present case. In such view of the matter, this Court is not inclined to release the Petitioner on bail at this juncture. Further, keeping in view the period of custodial detention of the petitioner, this Court would like to remind the learned court in seisin over the matter to expedite the trial and to make every endeavor to conclude the same as expeditiously as possible, preferably within a period of six months from the date of communication of a certified copy of this order. 16.
Arguments
presence of an Executive Magistrate. Learned Counsel for the Petitioner further argued that the interpretation of Section 50 of the N.D.P.S. Act needs consideration by this Court and that whether the word “to search any person” includes the search of articles on the body of the person or search of articles in the immediate possession like bags, luggage carried by the accused. He further expressed his doubt with regard to the authority of the concerned police Page 5 of 17 to search bags and luggage which are lying in a house or in a railway compartment or at an airport and as such, he raised his objection with regard to extension of the ambit of search and seizure, under Section 50 of the N.D.P.S. Act, to the house and other places at the time of search. 7. Learned counsel for the Petitioner, while referring to Section 50 of the N.D.P.S. Act, emphasized that the search is to be carried out in presence of a Gazetted Officer or an Executive Magistrate. Such procedure has been incorporated in Section 50 of the N.D.P.S. Act to lend authenticity and credibility to the search and seizure procedure, keeping in view the severity of punishment prescribed in the aforesaid statute. He further argued that no presumption under Section 54 of the N.D.P.S. Act can be drawn unless the search and seizure has been carried out strictly in terms of the procedure laid down in Section 50 of the N.D.P.S. Act. Learned counsel for the Petitioner in the course of his argument attacked the composite Page 6 of 17 communication, under Section 50 of the N.D.P.S. Act, to the accused for search and seizure. In the said context, he submitted that such joint communication would frustrate the very purpose of Section 50 of the act. 8. Further, referring to the notice under Section 50 of the N.D.P.S. Act, learned counsel for the Petitioner made an attempt to point out several latches/ lacunae in the said notice and on such basis, he argued that the notice, in the present case, is a defective one. At this juncture, this Court would like to observe that the Petitioner does not dispute the service of the notice. Rather, the entire endeavor by the learned counsel for the petitioner was to illustrate the fact that the mode and manner in which the notice has been drafted is erroneous and not in consonance with section 50 of the N.D.P.S. Act. He further contended that firstly, the notice is defective since the same does not inform the Petitioner of his legal right (i.e. giving him an option to be searched in the presence of an Executive Magistrate) which Page 7 of 17 is the very essence of Section 50, there are no witnesses to the search and seizure, no independent witness is a witness to such search and seizure, there is no evidence to show that contraband ganja was recovered from the bags lying near the road and no evidence to show that such bags were actually recovered from the possession of the Petitioner, no public witness was available, and no Executive Magistrate was present at the spot while the search and seizure in question was being carried on. 9. Keeping in view the aforesaid assertion of learned counsel for the Petitioner that the requirement of Section 50 has not been followed in the present case, this Court, at this juncture, would like to examine the same at the threshold. On perusal of the case diary, it appears that on 07.07.2023 a notice was in fact given to the Petitioner. Although, such notice does not reveal that the same is under Section 50 of the N.D.P.S. Act. However, the contents reveal that a notice was given to the Petitioner, Page 8 of 17 giving him an option to be searched in presence of a Gazetted Officer or an Executive Magistrate. The notice specifically deals with search of the four numbers of polythene bags seized from the possession of the Petitioner. In the consent part of the very same notice, the Petitioner has specifically stated that he wants the four numbers of the bags recovered from his possession to be searched in presence of the Executive Magistrate. Such notice was signed by the Issuing Authority and the consent part bears the signature of the Petitioner. On perusal of the notice and the consent of the Petitioner, this Court is prima facie satisfied with regard to the observance of the procedure as mandated by Section 50 of the N.D.P.S. Act. Moreover, if any defect/ lacunae are there in the notice, the same is to be raised during the stage of trial and not at the stage of consideration of a bail application of the petitioner. 10. Moving on to the judgments relied upon by the learned counsel for the Petitioner, the first judgment Page 9 of 17 referred to by the learned counsel for the Petitioner is reported in (2018) 9 SCC 708. On perusal of the said judgment, it appears that in the said judgment, the Hon’ble Supreme Court was dealing with an order of conviction in appeal. Moreover, the said judgment lays down the law to the extent that Section 42 is not mandatory when search and seizure is being conducted in a public place, rather it is Section 43 which would apply. Further, so far as Section 50 of the N.D.P.S. Act is concerned, it has been categorically held that the same would be applicable in the case of a search of a person. In the present scenario however, it is not the case of the Petitioner that Section 43 of the act has not been complied with. Therefore, this Court is of the considered view that the aforesaid judgment is not applicable to the facts of the present Petitioner’s case. 11. In the present case, admittedly the contraband articles, kept in four plastic bags, were recovered from a public place. Therefore, Section 43 of the N.D.P.S. Act Page 10 of 17 empowers any officer of any of the departments mentioned in Section 42, to seize such contraband articles kept in a public place or in transit and, to detain the person who is responsible for transportation of such contraband article and to search any such person with regard to whom the concerned officer has a reason to believe to have committed an offence punishable under the N.D.P.S. Act. A Constitution Bench of the Hon’ble Supreme Court in the case of State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172 has categorically held that the material difference between the provisions contained in Section 43 and section 42 of the N.D.P.S. Act is that, where Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting the search and seizure, Section 43 on the contrary does not contain any such provision. As such, while acting under Section 43 of the Act, the Empowered Officer has the power of seizure of the contraband article etc. and arrest of a person who is Page 11 of 17 found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to be unlawful. Moreover, para-12 of the judgment reported in (2018) 9 SC 708 clearly provides that compliance with Section 42 of the act, including recording of information received by the Empowered Officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. It further provides that Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other places intended for use by, or accessible to, the public. 12. Furthermore, the order of this Court in Raghu @ Rahul Rajput Thakur vs. State of Odisha in BLAPL No.2430 of 2021, decided vide order dated 14.10.2022, which has been referred to by the petitioner, is simply not applicable to the facts of the present case. In the order Page 12 of 17
Decision
The BLAPL is, accordingly, disposed of. Orissa High Court, Cuttack The 29th October, 2024/ Anil, Jr. Steno (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 30-Oct-2024 10:49:18 Page 17 of 17