The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.13059 of 2024 (In the matter of application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023). Dinesh Biswas @ Dinesh Kumar … -versus- Petitioner State of Odisha … Opposite Party For Petitioner : Mr. P.K. Maharaj, Advocate For Opposite Party
Legal Reasoning
: Mr. R.B. Mishra, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:24.04.2025(ORAL) G. Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. This is a bail application U/S.483 of BNSS by the petitioner for grant of bail in connection with Umerkote P.S. Case No.212 of 2020 corresponding to Special T.R. Case No.32 of 2020 pending in the Court of learned Addl. District & Sessions Judge, Umerkote in the district of Nabarangpur for commission of BLAPL No. 13059 of 2024 Page 1 of 9 offences punishable under Section 20(b)(ii)(C)/29 of NDPS Act, on the main allegation of possessing 105Kgs 676Grams of Contraband Ganja. 3. Heard, Mr. Pranay Kumar Maharaj, learned counsel appearing for the petitioner and Mr. R.B. Mishra, learned Addl. Public Prosecutor and perused the record. 4. It is brought to the notice of the Court that the present Petitioner has been implicated in following three cases of similar nature: (i)Umerkote PS Case Nos.209 of 2020 for offences punishable U/Ss. 20(b)(ii)(C)/29 of NDPS Act. (ii) 8 of 2021 for commission of offence punishable U/Ss. 20(b)(ii)(C) of NDPS Act. (iii) 82 of 2021 for commission of offence punishable U/Ss. 20(b)(ii)(C)/29 of NDPS Act. Grant or refusal of bail in NDPS case involving commercial quantity is governed by Section 37 of NDPS Act and 37(1)(b) of NDPS Act prescribes that no person accused of an offence punishable for offences BLAPL No. 13059 of 2024 Page 2 of 9 under sec. 19 or Sec.24 or Sec. 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose the application for such release and where such public prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is unlikely to commit offence while on bail. True it is that in some of the cases, the Petitioner has already been granted bail, but the involvement of the petitioner in three other similar cases gives rise to reason or apprehension in the mind of the Court to consider that there is no ground to believe that the accused is unlikely to commit offence while on bail. In addition, there is allegation against the petitioner for possessing commercial quantity of Contraband Ganja and the trial is going on with examination of 19 out of 30 charge sheeted witnesses and the trial is likely to be concluded soon. BLAPL No. 13059 of 2024 Page 3 of 9 5. Adverting to the plea of petitioner for grant of bail on the principle of parity, this Court considers it apt to refer to the decision in Satpal Singh vrs. State of Punjab; (2018) 13 SCC 813, wherein the pre-arrest bail application of one accused namely Satpal Singh was turned down by one of the Bench of High Court, whereas the pre-arrest bail application of co-accused Beant Singh and Gurwinder Singh had been allowed by another Bench of the said High Court, but after noticing the provision of Sec. 37 of NDPS Act, the Apex Court while upholding the view of the learned Judge declining to give protection to accused Satpal Singh for not recording satisfaction of the conditions U/S. 37 of NDPS Act cancelled the pre-arrest bail granted by the High Court to co-accused Beant Singh and Gurwinder Singh for not recording satisfaction of the conditions U/S. 37 of the NDPS Act which is sine qua non for granting bail to the accused for offences involving commercial quantity. It is, therefore, very clear from the precedent as laid down by Apex Court BLAPL No. 13059 of 2024 Page 4 of 9 that the order granting bail must demonstrate the conditions of Section 37 of NDPS Act, but if the order granting bail to co-accused does not discuss/ demonstrate about the satisfaction of the conditions of Section 37 of NDPS Act, it would not have any binding precedent for grant of bail to co-accused. In Satpal(supra), the Apex Court in Paragraph-14 of the decision has held as under:- is “xx xx. The quantity reportedly commercial. In the facts and circumstance of the case, the High Court could not have and should not have passed the order U/S. 438 or 439 of CrPC without reference to Sec. 37 of NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant bail. Such a satisfaction having not been entered, the order dated 21.09.2007 (granting pre-arrest bail to accused person) is only to be set aside and we do so.” 6. In State of Kerala and others vrs. Rajesh and others;(2020) 12 SCC 122, while setting aside the order granting bail to the accused persons for want of satisfaction of the conditions U/S. 37 of NDPS Act, the Apex Court has made it clear that the jurisdiction of the Court to grant bail in a case like this is BLAPL No. 13059 of 2024 Page 5 of 9 circumscribed by the provision of Sec. 37 of NDPS Act and it can be granted in a case there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail which is the mandate of legislature that is required to be followed. In setting aside the bail order of the accused person in Rajesh(supra), the Apex Court has referred to the past criminal antecedents of the accused as a ground for not being able to record the satisfaction of condition of Sec. 37 of NDPS Act. 7. In a recent decision, the Apex Court in Narcotic Control Bureau Vrs. Kashif;(2024) SCC Online SC 3848, the Apex Court in Paragraph No.8 has been pleased to hold as under: 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 Page 6 of 9 BLAPL No. 13059 of 2024 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. Further, in Kashif(supra) the Apex Court has summarized its conclusion in Paragraph No. 39 and some of such conclusions which are relevant for the purpose of adjudication of this bail application are extracted as under:- “39.(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate and object, Preamble of the Act. purpose the (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non BLAPL No. 13059 of 2024 Page 7 of 9 is known for granting bail to the accused involved in the offences under the NDPS Act. xx xx xxx xxx xxx (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 8. From the aforesaid facts and circumstance and following the law laid down by the Apex Court in the decisions referred to above and applying the principles as culled out by the Apex Court in these decisions to the facts of this case and the Petitioner having been involved in three cases of similar nature, apart from this case cannot be said to have satisfied the conditions of Sec. 37 of NDPS Act. In the wake of aforesaid, especially when the Petitioner is found to have not satisfied the mandatory conditions of Sec. 37 of NDPS Act, this Court is not inclined to grant bail to the Petitioner. BLAPL No. 13059 of 2024 Page 8 of 9 Hence, the bail application of the petitioner stands rejected. The Petitioner is, however, at liberty to renew his prayer for bail, if the trial is not concluded within next one year. Accordingly, the BLAPL stands
Decision
disposed of. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 24th day of April, 2025/Jayakrushna Signature Not Verified Digitally Signed Signed by: JAYAKRUSHNA DASH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Apr-2025 18:22:46 BLAPL No. 13059 of 2024 Page 9 of 9