JUSTICE v. NARASINGH ORDER
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No. 11656 of 2025 Chandan Kar @ Chandan Kumar Kar Mr. L. Samantaray, Advocate Petitioner …. -versus- State of Odisha …. Opposite Party Mr. S. Panda, ASC CORAM: JUSTICE V. NARASINGH ORDER 17.12.2025 Order No. 03. 1. Heard learned counsel for the Petitioner and learned counsel for the State. 2. The Petitioner is seeking pre-arrest bail in connection with C.T. Case No.32 of 2019 pending on the file of learned Sessions Judge-cum-Special Judge, Kandhamal, arising out of Gochhapada P.S. Case No.41 of 2019 for commission of offences punishable under Sections 20(b)(ii)(C), 25 & 29 of NDPS Act. 3. The allegation against the present Petitioner, who is cited as Accused No.1, is that he, along with co- accused Darasingh Guru, in a Bolero vehicle bearing Registration No. OD-03-H-3834, which was owned by one Rupesh Singh Beshra, were involved in the Page 1 of 7 transportation of the contraband (Ganja) to the tune of 654 kgs. 4. It is the case of the prosecution that the present Petitioner along with Darasingh Guru were detained but both of them managed to decamp. The owner of the vehicle was cited as Accused No.3 and after investigation charge sheet was filed under section 20(b)(ii)C of NDPS Act against the present Petitioner, Darasingh Guru and the said Rupesh Beshra, owner of the vehicle, citing the present Petitioner as well as Darasingh Guru as absconders. The accused in custody and the owner of the vehicle which is allegedly involved in the transportation of contraband, faced trial. 5. It is submitted by the learned counsel for the Petitioner that the said accused was acquitted of the charges by judgment dated 16.05.2024 passed in T.R. No.30 of 2021. Placing reliance on the acquittal of the co- accused and the basis of such acquittal, the Petitioner is seeking pre-arrest bail, inter alia, on the ground that the prosecution has signally failed to establish that the contraband involved was Ganja and that the vehicle in question, in which it is alleged that the Petitioner was travelling, was involved in the commission of the offence. Page 2 of 7 6. To appreciate the submission of the learned counsel for the Petitioner referring to the judgment of
Facts
the trial Court, it is necessary to extract para-7 and 8 of the judgment. The same are extracted hereunder for convenience of ready reference “xxx xxx xxx 7. As far as the question whether the articles seized were nothing but ganja, the prosecution has relied on the testimony of P.W.5 and the Report of the Chemical Examiner marked as Ext.P-96 in that respect. P.W.5 has not stated anything in his examination-in-chief as to how he could know that the contents of the sacks were contraband ganja, as he has not stated anything that he conducted any test whatsoever on the articles so recovered. He has also not stated that the articles recovered were flowering and fruiting tops of the cannabis plants, except stating it to be ganja. No document regarding departmental experience has been filed to support the contention of the prosecution that P.W.5 was trained and experienced to testify an article as ganja. As it reveals from Ext.P-96, the parcel received for chemical test consisted of 18 sealed paper packets marked as ‘A1 to T- 1’ containing 50 grams each of greenish Page 3 of 7 dried plant materials having the characteristic smell of cannabis. It further reveals from the result of examination that those were found to be containing flowering and fruiting tops of the cannabis plant that is known as Ganja. No nature of test conducted for identification has been specified in Ext.P- 96 itself. The Chemical Examiner has neither been cited nor examined as a witness by the prosecution to prove the nature of the test conducted in arriving at such conclusion. Hence, it can also be concluded that the prosecution has not been able to prove that the article recovered to be nothing but ganja (cannabis) beyond all reasonable doubt. (emphasized) 8. As far as the question as to whether the accused used the conveyance, i.e., a Bolero Pick-Up FB Van bearing Regd. No. OD-03H- 3834 for commission of the offence under the Act, the I.O. has only proved a Report of the RTO, Phulbani marked as Ext.P-95. On perusal of Ext.P-95, it reveals that the said vehicle stands registered in the name of the accused Rupesh Beshra. But nothing has been brought by the prosecution to prove that the accused Rupesh Beshra used the said vehicle on the relevant day for commission of any offence. Be that as it Page 4 of 7 may, in view of the fact that the prosecution has failed to prove the factum of seizure of any such contraband ganja (cannabis) from any such vehicle and from the exclusive and conscious possession of the accused, it cannot be said that the vehicle was used by the accused for commission of any offence under the Act. Furthermore, the prosecution has not brought an iota of evidence about the act of agreement or conspiracy by the accused persons to commit any such offence under the Act. (emphasized) xxx xxx xxx” 7. It is submitted by the learned counsel for the Petitioner that in the face of finding that the contraband seized cannot be conclusively said to be ganja and involvement of the vehicle in question being doubted the very foundation of prosecution case fails and as such the Petitioner is entitled to seek for pre- arrest bail, in the light of the acquittal of the co- accused. It is also stated by the learned counsel for the Petitioner that keeping in view the nature of evidence on record, his incarceration would be punitive. 8.
Legal Reasoning
Act are ex facie not attracted. 11. Accordingly, this Court directs that on surrendering within three weeks hence and moving for bail, the Petitioner shall be released on bail by the learned Court in seisin on such terms as deemed just and proper. 12.
Arguments
Learned counsel for the State, Mr. Panda, on the other hand submits that the judgment on which Page 5 of 7 reliance has been placed qua the accused facing trial, ought not to weigh with this Court and it is his further submission that keeping in view the rigors of Section 37(1)(b)(ii) of the NDPS Act the Petitioner is not entitled to bail what to speak of pre-arrest bail. It is also submitted that the present Petitioner was detained but managed to escape. Hence, no leniency ought to be shown. 9. There is no cavil about the proposition of law that the evidence relates to the accused, who faces trial but at the same time considering the peculiar nature of special Act, the finding regarding the contraband not being ganja, cannot be treated in isolation and in the considered view of this Court the same applies in equal measure to all the accused persons irrespective of the fact, whether they faced the trial or not. The general approach in the cases involving offences which are not covered by the Special Statute cannot be mechanically applied to accusation under the NDPS Act so as to put a fetter on the right of an accused under the NDPS Act to seek pre-arrest bail. It is trite that more the rigors of law, the stricter the scrutiny. 10. Keeping in view the nature of evidence on record, in the light of the Paragraphs-7 & 8 of the Judgment quoted above, inter alia, that the contraband Page 6 of 7 seized cannot be conclusively said to be ganja, this Court is persuaded to hold, that the rigors of the NDPS
Decision
Accordingly, the ABLAPL stands disposed of. (V. NARASINGH) Soumya Judge Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Dec-2025 11:01:49 Page 7 of 7