JUSTICE v. NARASINGH DATE OF FINAL HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No.7470 of 2025 Abhiram Bibar …. Petitioner Dr. S. Ranjit, Advocate -versus- State of Odisha …. Opposite Party Mr. S. N. Das, ASC CORAM: JUSTICE V. NARASINGH DATE OF FINAL HEARING : 22.08.2025 DATE OF JUDGMENT: 25.08.2025 V. Narasingh, J. 1. Heard learned counsel for the Petitioner
Legal Reasoning
and learned counsel for the State. 2. The Petitioner is seeking pre-arrest bail in connection with T.R. No.41 of 2021 pending in the Court of learned Addl. Sessions Judge-cum-Special Judge, Gunupur, Rayagada, arising out of Chandrapur P.S. Case No.08 of 2021 for commission of offences punishable under Sections Page 1 of 7 20(b)(ii)C, 25 and 29 of the NDPS Act. The allegation against the Petitioner is that he along with the co-accused who faced trial are involved in the transportation of contraband (Ganja) to the tune of 540kgs. 3. It is submitted by the learned counsel referring to the charge sheet which is on record that the basis of implication is on account of the co-accused statement and the co-accused who were taken into custody and faced trial have since been acquitted by the judgment dated 30.10.2024 in TR No.41 of 2021 by the learned Addl. Sessions Judge-cum-Special Judge, Gunupur, Rayagada. And it is further stated that the acquittal of the co- accused was on account of violation of mandatory statutory provision as contained in Section 42(1)1 1 42. Power of entry, search, seizure and arrest without warrant or authorisation.—(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish Page 2 of 7 as well as Section 50 of the NDPS Act2 and for non-production of the contraband article before the Court in “safe custody”. It is further submitted that the co-accused Karuna Hial, not apprehended from the spot, is similarly circumstanced with the Petitioner and has been acquitted. Referring to the above and the judgment of the Apex Court in the case of Tofan Singh Vrs. The State of Tamil Nadu3, the Petitioner seeks pre-arrest bail. evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: 2 50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 3 AIR 2020 SC 5592 Page 3 of 7 4. Learned Public Prosecutor Mr. Das opposes the prayer for pre-arrest bail referring to the provisions as contained in the Section 37(1)(b)(ii)4 of the NDPS Act as well as the judgment of the Apex Court in the case of State by the Inspector of Police Vs. B. Ramu5. 5. It is further submitted by the learned Public Prosecutor that the evidence in respect of the accused in custody cannot ennure to the benefit of the Petitioner who has been cited as an absconder, though it is not disputed that the basis of implication of the Petitioner is on account of the co-accused statement. He also opposes the prayer for pre-arrest bail referring to Paragraph 9 of the bail application, wherein it is stated that the 4 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a)xxx (b) no person accused of an offence punishable for 3[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless— (i)xxx (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) or any other law for the time being in force on granting of bail. 5 2024 SCC Online SC 4073 Page 4 of 7 Petitioner “has six criminal antecedents including this case”. 6. The rival contentions have to be examined in the light of the rigors of Section 37(1)(b)(ii) of the NDPS Act and that in case of an accusation under the NDPS Act, jail is rule and bail is the exception.[Ref: State of Madhya Pradesh vs. Kajad]6. 7. It is trite that the evidence on record qua the accused in custody cannot be relied upon by the co-accused who is an absconder. The consideration of an accusation under the NDPS Act is circumscribed by the twin embargo of Section37(1)(b)(ii), quoted hereinabove and unless an accused can cross both the barriers of Section 37(1)(b)(ii) of NDPS Act, he cannot be released on bail. In this context reliance can be placed on the Judgment of the Apex Court in the case of Union of India Vrs. Ajay Kumar Singh 6 (2001) 7 SCC 673 Page 5 of 7 alias Pappu7 and Narcotic Control Bureau Vrs. Kashif8. 7A. Such restriction(s) apply in greater vigour for consideration of grant of the exceptional remedy of pre-arrest bail, as clarified by the Apex Court in the case of Satender Kumar Antil Vrs. Central Bureau of Investigation and another9. 8. In the instant case in view of the grounds of acquittal of the co-accused, it is open for the Petitioner to submit that he is not guilty of commission of such offence. 9. In terms of the second limb of the twin embargo of Section 37(1)(b)(ii) of the NDPS Act, 7 2023 SCC Online SC 346 8 2024 SCC Online SC 3848 COMPLIANCE OF THE MANDATE UNDER SECTION 37: 8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence 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 the cumulative and not alternative conditions. 9 2023 SCC Online SC 452 We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail. Page 6 of 7 this Court is not persuaded to arrive at a finding that the Petitioner “is not likely to commit any offence while on bail”, in view of his criminal proclivity being cited as an accused in five other cases and his conduct of absconding. As such, the ABLAPL does not merit consideration and is rejected. However, in the event the Petitioner surrenders before the learned Court in seisin in the aforesaid case and moves an application for his release on bail, the same shall be considered on its own merit. Accordingly, the ABLAPL stands disposed 10. of. (V. NARASINGH) Judge Orissa High Court, Cuttack, Dated the 25th August, 2025/Jina Signature Not Verified Digitally Signed Signed by: JINA DIGAL Reason: Authentication Location: High Court of Orissa Date: 26-Aug-2025 20:55:27 Page 7 of 7