The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 5666 of 2024 Ghanashyam Jena … Petitioner Mr. S.Palit,Sr.Advocate State of Odisha … Opposite Party -versus- Mr. T.K.Praharaj, SC Order No. 05. CORAM: JUSTICE G. SATAPATHY
Decision
ORDER 06.08.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. This is the 2nd bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with Titilagarh Excise Station in P.R. No. 38/2023-24 corresponding to 2(a) CC 04 of 2023 pending in the file of learned Addl. District & Sessions Judge, Titilagarh for commission of offences punishable under Section 20(b)(ii)(c) of NDPS Act, on the allegation of possessing 6.3 quintals of Contraband Ganja in his core house. 3. In the course of hearing of bail application, Mr.Subir Palit, learned Senior Counsel while not disputing about the second journey of the petitioner to this Court submits that the petitioner has not approached to the higher forum against the order passed by this Court in BLAPL No. 8347 of 2023 Page 1 of 5 wherein the bail application of the petitioner has been turned down by this Court, but he, however, submits that since trial having already commenced with closure of prosecution evidence and examination of three defence witnesses and the seizure witnesses having not supported the prosecution case, the possession of the petitioner for alleged huge quantity of Contraband Ganja cannot be inferred and thereby, the petitioner can be said to have satisfied the conditions of Section 37 of NDPS Act for grant of bail to him. Further, learned Senior Counsel seriously disputes and contends about violation of provisions of Sec. 42 and 50 of the NDPS Act and prays to grant bail to the petitioner on the very same grounds. 4. On the other hand, Mr.T.K.Praharaj, learned Standing Counsel submits that not only the quantity of Contraband Ganja seized in this case is more than commercial quantity, but the petitioner is prima facie found to be in possession of huge quantity of 6.3 quintals of Contraband Ganja and he having not satisfied the conditions of Section 37 of NDPS Act is not entitled to bail. 5. Rival submissions make it very clear that the evidence from the side of prosecution has already been over and the petitioner has already entered into defence by examining three witnesses and, therefore, the trial of the case is at the very fag end and there is every likelihood of disposal of the case in near future. Page 2 of 5 Further, merely because the seizure witnesses do not support the prosecution case would not ipso facto render the prosecution allegation against the petitioner unsustainable nor would it give rise to satisfaction of the Court for conditions of Section 37 of NDPS Act which is mandatorily required for release of the person accused of offences involving commercial quantity of Narcotic Substance, on bail. In this case, the petitioner has only selectively filed some of the deposition of the witnesses, but not the deposition of all the witnesses, however, on going through the evidence of such witnesses and materials placed on record, there is prima facie allegation against the petitioner for being in possession of more than commercial quantity of Contraband Substances. 6. Learned Senior Counsel although has prayed for bail on the ground of non-compliance of Sections 42 & 50 of the NDPS Act, but such compliance is question of facts to be decided in each case and such non-compliance may not vitiate the trial, if it does not cause any prejudice to the accused. Further, Section 50 of the NDPS Act is never attracted in this case because it is not a case of personal search of the petitioner, rather it relates to recovery of 6.3 quintals of Contraband Ganja from the core house of the petitioner. In this regard, this Court is fortified with the decision in State of Punjab vs. Baldev Singh; (1999) 6 SCC 172, wherein a Constitutional Bench Page 3 of 5 of five Judges of Apex Court at paragraph-12 has held as under:- “12.On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.” 7. Further, the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial as held by a Constitutional Bench of the Apex Court in Vijaysingh Chandubha Jadeja vs. State of Gujurat; (2011) 1 SCC 609. Moreover, in relation to compliance of Section 42 of the NDPS Act, the Apex Court in paragraph-34 of the decision in Karnail Singh vs. State of Haryana; (2009) 8 SCC 539, has held as under:- not be misused 34. xx xx xx “these provisions the should wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers.” by Page 4 of 5 8. In the above backdrop of facts and materials placed on record, when the evidence on record is considered, the accused-petitioner would be found unsuccessful to satisfy the conditions of Section 37 of NDPS Act for grant of bail to him. Consequently, this Court does not see any ground to enlarge the petitioner on bail, especially when the trial is likely to be completed in near future. 9. Hence, the bail application of the petitioner stands rejected. 10. Accordingly, the BLAPL stands disposed of. (G. Satapathy) Judge kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 08-Aug-2024 14:18:16 Page 5 of 5