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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL NO.6041 of 2025 (In the matter of application under Section 483 of BNSS, 2023). Gunjan Mahadeo Adsul … Petitioner -versus- State of Odisha … Opposite Party For Petitioner : Mr. A. Biswal, Advocate For Opposite Party : Mr. C. Mohanty, Addl. PP CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:23.09.2025(ORAL) G. Satapathy, J. 1. This is a bail application U/S.483 of BNSS by the petitioner for grant of bail in connection with Mohana PS Case No.106 of 2023 corresponding to GR Case No.70 of 2023 pending in the file of learned Sessions Judge-cum-Special Judge, Parlakhemundi, Dist-Gajapati, for commission of offences punishable U/S.20(b)(ii)(C) of NDPS Act, on the allegation of transporting 1773Kgs 200Grams of Contraband Ganja in a Truck bearing Regd. No.MH-50-N-0299. BLAPL No.6041 of 2025 Page 1 of 8 2.
Legal Reasoning
In the course of hearing, Mr. Amit Biswal, learned counsel for the petitioner by referring to the written notes of submission filed for the petitioner submits that there is total non-compliance of Sections 42 and 50 of NDPS Act and, thereby, the prosecution against the petitioner being vitiated, he may kindly be granted bail. 2.1. On the other hand, Mr. C. Mohanty, learned Additional Public Prosecutor while opposing the prayer for bail of the petitioner submits that compliance of Section 50 of NDPS Act is not applicable to this case in hand as the Contraband articles were found recovered from the vehicle, but not from the personal search and Section 42 of NDPS Act although mandatory should not be allowed to misuse the provision to protect the drug peddlers like the petitioner, who is prima facie found to have transported such a huge quantity of Contraband Ganja and, therefore, the petitioner is not entitled to bail. On the aforesaid submission, Mr. Mohanty prays to reject the bail application of the petitioner. BLAPL No.6041 of 2025 Page 2 of 8 3. After having considered the rival submissions upon perusal of record, there appears allegation against the petitioner for transporting 1773Kgs 200Grams of Contraband Ganja in a Truck, but fact remains as to whether there was total non- compliance of Sections 42 and 50 of NDPS Act, however, such compliances of the provision of Sections 42 and 50 of NDPS Act are question of facts and can be gone into in the trial after full-fledged evidence is being led. In this regard, this Court is fortified with the decision of the Apex Court in Karnail Singh Vrs. State of Haryana; (2009) 8 SCC 539 wherein while answering a reference as to whether compliance of Section 42 is mandatory or not and substantial compliance is sufficient; a five Judges Bench of the Apex Court recorded its conclusion in Paragraph-35 and the relevant observation as stated therein at Paragraph 35 (d), is extracted as under:- total non-compliance with “(d). While requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance BLAPL No.6041 of 2025 Page 3 of 8 in writing with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not the recording information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to it will be a the official superior, then suspicious clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” circumstance being a 4. In Karnail Singh(supra), the Apex Court in Paragraph-34 has further held that:- as “34. xx xx xx “these provisions should not be misused by the a major wrongdoers/offenders 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.” BLAPL No.6041 of 2025 Page 4 of 8 5. True it is that Section 50 of NDPS Act relates to personal search of a person, but not to the premises or conveyance as held by the Apex Court in State of Punjab Vrs. Baldev Singh; (1999) 6 SCC 172 wherein the Apex Court at Paragraphs-12 & 57(5) which reads as under:- if “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, the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a course of person during 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. the normal 57(5). Whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial.” 6. On a plain reading of the aforesaid precedents as set out by the Apex Court, it appears that whether there is adequate or substantial compliance of Section 42 of the NDPS Act is a question of fact 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 and the provision should BLAPL No.6041 of 2025 Page 5 of 8 be taken as a discretionary measure which should check the misuse the act, rather than providing an escape route to the hardened drug-peddlers and, therefore, the non-compliance or compliance can be precisely ascertained at the stage of trial when full- fledged evidence is led before the Court and it would not be possible to ascertain meticulously the compliance or non-compliance of Section 42 of NDPS Act at this stage of granting bail, particularly in absence of the evidence. In the present bail application, the petitioner has only annexed the copy of the FIR and copy of charge-sheet, but without any further documents and statement of witnesses. Besides, the petitioner has only enclosed the copy of impugned order, wherein it appears that the petitioner has not set up any plea of non-compliance of Sections 42 & 50 of NDPS Act so as to be addressed by the learned trial Court. 7. For grant or refusal of bail for commission of offence case under NDPS Act involving commercial quantity is governed by Section 37 of NDPS Act and BLAPL No.6041 of 2025 Page 6 of 8 Section 37(1)(b)(ii) of NDPS Act prescribes that no person accused of an offence under NDPS Act involving commercial quantity shall be released on bail, if the public prosecutor opposes such bail application; unless the Court is satisfied there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. On a careful conspectus of materials placed on record together with the recovery and seizure of 1773Kgs 200Grams of Contraband Ganja which is much more than the commercial quantity from the Truck allegedly in occupation of the petitioner at the time of detection, this Court considers that the accused has not been able to satisfy the conditions of Section 37 of NDPS Act, which is sine qua non for grant of bail. In the aforesaid premises and taking into account the seizure and recovery of such a huge quantity of Contraband Ganja, which is much more than the commercial quantity and the impact of crime on society, this Court is not inclined to grant bail to the petitioner. BLAPL No.6041 of 2025 Page 7 of 8 8. Hence, the bail application of the petitioner stands rejected. Accordingly, the BLAPL stands
Decision
disposed of. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 23rd day of September, 2025/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 24-Sep-2025 14:50:54 BLAPL No.6041 of 2025 Page 8 of 8