The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.6281 of 2025 (In the matter of application under Section 483 of the BNSS). Dula Madkami & another … Petitioners -versus- State of Odisha … Opposite Party For Petitioners : Mr. D.Mohanty. Advocate For Opposite Party : Mr. A.Pradhan, Addl. PP CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & DATE OF JUDGMENT:09.07.2025 (ORAL) G. Satapathy, J. 1. This is a bail application U/S.483 of BNSS by the petitioners for grant of bail in connection with Malkangiri PS Case No.292 of 2023 corresponding to Spl. GR Case No.129 of 2023 pending in the Court of learned Sessions Judge-cum-Special Judge, Malkangiri, for commission of offences punishable under Sections 20(b)(ii)(C)/25/27-A/29 of the NDPS Act, on the main allegation of transporting 360 Kgs of Contraband Ganja in a Eicher Vehicle bearing Regd. No.UP-80-GT-4902. BLAPL No.6281 of 2025 Page 1 of 10 2. In
Legal Reasoning
the course of hearing, Mr. Debasish Mohanty, learned counsel for the petitioners while highlighting non-compliance of the provisions of Sections 42, 50, 52-A of the NDPS Act submits that the accused- petitioners have been detained in custody without any rhyme and reason, but the trial is at fag end, however, the petitioners having not misused the liberty granted to him by way of interim bail may kindly be granted bail. 3. On the other hand, Mr. Pradhan, learned Addl. Public Prosecutor, however, strongly opposes the bail application of the petitioners contending inter alia that since the quantity of contraband ganja is well above the commercial quantity and the petitioners having not satisfied the conditions of Section 37 of NDPS Act should not be enlarged on bail. On these submissions, Mr. Pradhan prays to reject the bail application of the petitioners. 4. After having considered the rival submissions upon perusal of record, there appears allegation against the petitioners for transporting 360Kgs, which is well above the commercial quantity in an Eicher truck BLAPL No.6281 of 2025 Page 2 of 10 allegedly in occupation of the petitioners at the detection. True it is that, the learned counsel has in fact highlighted the non-compliance of Sections 42,50, 52-A, but the same being matters relating to trial, it would be hardly helpful to the petitioners to enable them secure bail. In this regard, this Court is fortified with a decision of the Hon’ble Apex Court in Karnail Singh Vrs. State of Haryana; (2009) 44 OCR (SC) 183, wherein while answering a reference 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 excerpts which are relevant for the purpose of this bail application has been quoted in Paragraph 35 (d) which reads as under:- “ (d) xx xx xx 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.” 5. In Karnail Singh(supra), the Apex Court in Paragraph-33 and 34 has further held that:- BLAPL No.6281 of 2025 Page 3 of 10 “33. xx xx xx “the relaxation by the legislature is evidently only to uphold the the Act. The question of object of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused.” 34. xx xx xx “these provisions should not be misused by the 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.” 6. It is, therefore, very clear on a conspectus of the principles laid down by the Apex Court in Karnail Singh (supra) that whether there is adequate or substantial compliance of Section 42 of NDPS Act or not 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 be taken as a discretionary measure which should check the misuse of the act, rather than providing an escape to the hardened drug peddlers and therefore, the non-compliance or compliance can be BLAPL No.6281 of 2025 Page 4 of 10 precisely ascertained at the stage of trial when full- fledged evidence is led before the Court and therefore, it would not be possible to ascertain meticulously the compliance or non-compliance of Section 42 at the stage of granting bail, particularly in absence of the evidence. 7. Adverting to the other contention of the petitioner with regard to non-compliance of Section 50 of the NDPS Act, this Court is never in doubt that the Empowered Officer is under obligation of his duty, before conducting the search of the person of a suspect, to inform the suspect either orally or in writing about his right to be searched before a Gazetted Officer or a Magistrate, but failure to give such information would not only vitiate the trial, but also render the recovery of illicit article illegal. This Court, however, is of the view that the compliance of Section 50 applies to search of a person, but not for the recovery of contraband articles in a search of premises or conveyance. In this regard, this Court is fortified with the decision of Constitutional Bench of Apex Court in State of Punjab Vrs. Baldev Singh; (1999) 6 SCC 172 wherein a five Judges Bench BLAPL No.6281 of 2025 Page 5 of 10 of Apex Court has been pleased to hold at Paragraph-12 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.” 8. Whether compliance of Section 50 is a question of fact or not has been well explained by the Apex Court in Baldev Singh(supra) wherein at Paragraph-33, the Apex court held as under:- 33.“The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section the safeguards provided in that section were particularly, and, 50 BLAPL No.6281 of 2025 Page 6 of 10 complied with, it would not be advisable to cut short a criminal trial.” 9. In regard to plea of non-compliance of Sec. 50 of NDPS Act, this Court once again reiterates the observation of the Apex Court in Vijaysingh Chandubha Jadeja Vrs. State of Gujarat; (2011) 1 SCC 609 wherein a Constitutional Bench of five Judges of our Apex Court has observed in paragraphs-20 and 31 as under:- 20.“The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorized officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorized officer to do so. has 31. “The question whether or not the procedure been prescribed followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.” 10. On analyzing the provision of Section 50 of NDPS Act and following the dictum of the Apex Court in BLAPL No.6281 of 2025 Page 7 of 10 Baldev Singh (supra) and Vijaysingh Chandubha Jadeja(supra) which have definite and clear precedent value, this Court is of the firm view that compliance of Section-50 applies to search of person, but not to apply to search of premises or conveyance, and the compliance or non-compliance of Section 50 of the NDPS Act is a question of fact and thereby, is a matter of trial and it can be ascertained precisely after complete evidence is led before the Court. 11. Further, in Narcotic Control Bureau Vrs. Kashif; 2024 SCC On Line SC 3848 wherein the Apex Court has been pleased to held in Paragraph-24 as under:- the hazardous “24. Sec. 52-A was inserted only for the purpose of the early disposal of the seized and Substances, Contraband Drugs considering nature, vulnerability to theft, constraint of proper storage place etc. There cannot be any two options on the issue about the early disposal of the Contraband Drugs and Substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotic Drugs and Psychotropic Substances, however delayed compliance or non- compliance of the said provision by the concerned officer authorized to make application to the Magistrate could BLAPL No.6281 of 2025 Page 8 of 10 never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the investigating officer to establish that the search and seizure of the Contraband substance was made in due compliance of the mandatory provisions of the Act”. 12. Moreover, the Apex Court in Kashif(supra) has held in Paragraph-8 as under:- the offence “There has been consistent and persistent view of this Court that in the NDPS cases, where is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are cumulative and not alternative conditions.” the 13. In view of the above facts and on going through the materials placed on record, since petitioners BLAPL No.6281 of 2025 Page 9 of 10 are found to have not satisfied the conditions of Section 37 of NDPS Act and trial being at the fag end in view of the submission as advanced for the petitioners that the part examination of the IO is in the process, this Court does not considers it proper to grant bail to the petitioners. 14. Hence, the bail application of the petitioners stands rejected. 15.
Decision
Accordingly, the BLAPL stands disposed of. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 9th day of July, 2025/Jayakrushna Signature Not Verified Digitally Signed Signed by: JAYAKRUSHNA DASH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2025 12:19:30 BLAPL No.6281 of 2025 Page 10 of 10