The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL Nos.8679 of 2024 & 5200 of 2025 (In the matter of application U/S.483 of the Bharatiya Nagarik Suraksha Sanhita, 2023). Mohammad Sahid @ MD. Sahid (In BLAPL No.8679 of 2024) Rabin Tyagi (In BLAPL No.5200 of 2025) -versus- … Petitioners State of Odisha … Opposite Party For Petitioners : Mr. S. Manohar, Advocate (for both the petitioners) For Opposite Party : Mr. A. Pradhan, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:24.06.2025(ORAL) G. Satapathy, J. 1. Since these two bail applications arise out of one and same case record, the same are heard together and disposed of by this common judgment
Facts
with the consent of the learned counsel for the parties. 2. These are applications U/S.483 BNSS by the petitioners for grant of bail in connection with Malkangiri PS Case No.167 of 2023 arising out of GR BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 1 of 10 Case No.90 of 2023, pending in the Court of learned Sessions Judge-Cum-Special Judge, Malkangiri, for commission of offences punishable U/S. 20(b)(ii)(C)/ 25/ 29 of NDPS Act, on the main allegation of transporting 475 Kgs of Contraband Ganja in 19 bags in white color container bearing Regd. No.CG- 04 MA- 4123. 3.
Legal Reasoning
basis of existence of prima facie case or no prima facie case, but detail analysis of evidence and meticulous examination of documentation on merits should not be undertaken while considering the bail application of a person accused of offences. Further delay in disposal of the case, more particularly in a case under NDPS Act cannot be always considered to be a persuasive factor to grant bail to the person accused on offence under NDPS Act involving commercial quantity in view of the BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 6 of 10 law laid down by Apex Court in Narcotic Control Bureau Vrs. Mohit Agarwal; (2022) 18 SCC 374, wherein a three Judge Bench of the Apex Court has held as under:- “the length of the period of his custody or the fact that charge sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent U/S. 37 of the NDPS Act”. 6. Additionally, addressing the contention of the petitioners regarding sampling and non-compliance of Sec. 52-A of the NDPS Act, this Court considers it apposite to refer to the decision 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:- and Drugs “24. Sec. 52-A was inserted only for the purpose of the early disposal of the seized Contraband Substances, considering the hazardous 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 BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 7 of 10 the said provision by the concerned officer authorized to make application to the Magistrate could 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”. 6.1. Further, the Apex Court in Kashif(supra) has held in Paragraph-8 as under:- “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. from 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 granting the said Act. Apart opportunity of hearing 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.” to BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 8 of 10 6.2. Be that as it may, in this case the copy of deposition as furnished by the petitioners reveals that four witnesses have already been examined and out of the four witnesses, PW.3, being a member of the raiding party has also stated against the petitioners to be the occupants of the vehicle-container at the relevant time and recovery of 475Kgs of Contraband article from such vehicle. It is, therefore, not in dispute that the trial is going on and there appears allegation against the petitioners for possessing commercial quantity of Contraband Ganja, but on a conspectus of materials placed on record, it cannot be said that the petitioners have satisfied the conditions of Sec. 37 of the NDPS Act which is a mandatory requirement for grant bail to the persons accused of offences under NDPS Act involving commercial quantity. Besides, the bail application of the petitioner Rabin Tyagi was in fact rejected by this Court on 19.02.2025 in BLAPL No. 8586 of 2024, but the said petitioner has filed this bail application in BLAPL No.5200 of 2025 in just within BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 9 of 10 three months and there is in fact no change in the circumstance to consider his bail application afresh. 7. In the aforesaid facts and circumstance and taking into consideration the evidence of the witnesses as produced coupled with the materials placed on record, this Court does not find the petitioners to have satisfied the conditions of Section 37 of the NDPS Act so as to grant bail to them. Hence, these two bail applications of the Petitioners namely Mohammad Sahid @ MD. Sahid in BLAPL No.8679 of 2024 and Rabin Tyagi in BLAPL No.5200 of 2025 are hereby rejected.
Arguments
In the course of hearing, Mr. Shyam Manohar, learned counsel for both the petitioners appearing virtually submits that not only a false case has been planted against the petitioners, but also the mandatory requirement of compliance of provisions of NDPS Act have not been complied with and the petitioners have been simply detained in custody on false accusations. Mr. Manohar, further submits that there was in fact no sampling and no procedure prescribed for sampling had been followed in this case since the samples were sent to laboratory after four days of collection of it and the samples were collected in the absence of the accused, but it is mandatory for the investigating agency to collect the sample in BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 2 of 10 presence of the accused person. Mr. Manohar also submits that the provisions of Section 50 and 52-A of the NDPS Act have not been complied in this case and the petitioners having detained in custody for last two years and three months, their personal liberty has been seriously infringed. Further, Mr. Manohar submits that in the meantime, only four out of fourteen witnesses have been examined, but such evidence of the witnesses hardly implicates the petitioners. Under the aforesaid submissions, Mr. Manohar prays enlarge the petitioners on bail. 3.1. On the other hand, Mr. A. Pradhan, learned Addl. Public Prosecutor, however, submits that not only prima facie case is made out against the petitioners, but also they have been implicated in this case on prima facie accusations and the investigating agency has followed due procedure for detection and arrest of the petitioners for possessing huge commercial quantity of Contraband Ganja. It is further submitted by Mr.Pradhan that whatever the learned counsel for the petitioners is highlighting, is matters of BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 3 of 10 trial and trial being going on, the said aspect of sampling or compliance of mandate of provisions can be ascertained once all the witnesses are examined, but fact remains that the evidence of the witnesses clearly discloses prima facie case against the petitioners for possessing huge quantity of Contraband Ganja and, therefore, the petitioners having failed to satisfy the conditions of Section 37 of NDPS Act, their applications for grant of bail merits no consideration. Mr.Pradhan accordingly prays to reject the bail applications of the petitioners. 4. After having considered the rival submissions upon perusal of record, there appears allegation against the Petitioners for transporting net 475Kgs. of Contraband Ganja in a container and such quantity of Contraband Ganja is definitely coming under commercial quantity, but grant or refusal of bail in a case involving commercial quantity is governed by the conditions of Section 37 of NDPS Act which is mandatory in nature. True it is that the learned counsel for the petitioners, however, submits that there was BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 4 of 10 complete non-compliance of Section 50 of the NDPS Act, but fact remains that the Section 50 of NDPS Act relates to personal search of a person accused of offence and, therefore, the same has no application in this case. In this regard, this Court is alived with the principle laid down by Apex Court in State of Punjab Vrs. Baldev Singh; (1999) 6 SCC 172 wherein a five Judges Constitutional Bench of Apex Court has been pleased to hold at Paragraph-12 as under:- if etc. However, “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 the prior officer, without empowered information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during 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.” the normal any 4.1. Whether compliance of Section 50 of NDPS Act 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 has held as under:- BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 5 of 10 “33. The question whether or not the in Section 50 were safeguards provided 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 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.” 5. Further, the petitioners also seeks for bail on the ground of non-compliance of the sampling procedure, but fact remains that grant or refusal of bail in a criminal case requires to be adjudicated on the
Decision
Accordingly, these bail applications stand disposed of. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 24th day of June, 2025/Jayakrushna Signature Not Verified Digitally Signed Signed by: JAYAKRUSHNA DASH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Jun-2025 19:50:00 BLAPL Nos.8679 of 2024 & 5200 of 2025 Page 10 of 10