The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.14040 of 2023 Sarad Kumar Tiwari @ Sarad Tiwari ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. - Satyabrata Panda Opposite Parties Represented By Adv. – D.Nayak, AGA CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 23.07.2024 Order No. 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard learned counsel appearing for the Petitioner and learned Government Advocate appearing for the State-Opposite Party. Perused the materials placed before this Court. 3. The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection
Facts
with T.R. No.105 of 2023, arising out of P.R. No.335 of 2023- 24 of S.I. of Excise E.I. & E.B. Unit-II (N.D.), Sambalpur, pending in the Court of learned Sessions Judge-cum-Judge (Special Court), Sambalpur, for alleged commission of offence punishable under Section 20(b)(ii)C of N.D.P.S. Act. Page 1 of 7. 4. It is submitted by the learned counsel for the Petitioner that earlier this matter was not before any other Bench of this Court. He further submitted that the Petitioner is in custody since 04.07.2023. It was also contended that in the meantime, investigation has been concluded and final charge sheet has been filed. Further, referring to the allegation made in the F.I.R.,
Legal Reasoning
and conditions that would be imposed by this Court in the event the Petitioner is released on bail. 5. While elaborating his argument on the ground of non- compliance of Section-50 of N.D.P.S. Act, learned counsel for the Petitioner submitted that the procedure followed by the police while conducting the search and seizure is not in consonance with the law. Further, in course of his argument, he also referred to the final P.R. and submitted that in the column prescribed for witnesses, the prosecution has mentioned only one independent witness, i.e. Sibsankar Payra, and two official witnesses. It was also argued that admittedly the Petitioner was not produced before any Gazetted Officer or Executive Page 2 of 7. Magistrate as has been prescribed in sub-section (1) of Section- 50 of the N.D.P.S. Act. 6. In course of his argument, learned counsel for the Petitioner referring to the provisions contained in Section-50(5) of the N.D.P.S. Act, submitted that in a case where the accused was not produced before any Gazetted Officer or Magistrate, the Arresting Officer is duty bound to conduct search by following the procedure prescribed in Section-100 of the Code of Criminal Procedure. He further emphatically argued that in view of sub- section-6 of Section-50 of the N.D.P.S. Act, the officer conducting search and seizure is under a legal obligation to record the reasons in writing for such belief which necessitated for search and is also required to send a copy thereof to his immediate official superior within seventy two hours thereof. Learned counsel for the Petitioner further contended that the procedure prescribed in sub-section(6) of Section 50 of the N.D.P.S. Act has not been followed in present case. 7. Since the accused-Petitioner was not produced before any Gazetted Officer or Magistrate, which fact has been admitted by the learned counsels for both the sides, the only procedure that is required to be followed in view of sub-section(5) of Section-50 of the N.D.P.S. Act, is the procedure prescribed in Section 100 of Cr.P.C. with regard to conducting search and seizure. Section-100(4) of Cr.P.C. provides that before making a search, the officer or the person concerned shall call upon two or more independent and respectable inhabitants of the locality at the place in which the place is to be searched is situated or of any other locality if no such inhabitant of the said locality is Page 3 of 7. available and willing to be a witness to the search, to attend and witness the search. Additionally, sub-section(5) of Section 100 of Cr.P.C. provides that officer conducting search shall prepare a list of the seized articles in course of such search operation and the same shall be signed by two or more independent witnesses as has been provided in sub-section(4) of Section-100 of Cr.P.C. 8. By referring to the aforesaid provisions, learned counsel for the Petitioner submitted that admittedly the Petitioner was not produced before any Gazetted Officer or Magistrate. Therefore, the provision of Section-50 of N.D.P.S. Act has not been complied with. He further contended that the provisions contained in Section-100 of Cr.P.C. with regard to the search has also not been followed in the case of the present Petitioner, as is required under Section-50(5) of the N.D.P.S. Act. In such view of the matter, learned counsel for the Petitioner submitted that the search and consequential seizure from the possession of the present Petitioner is illegal. 9. Learned counsel for the State, at the outset, submitted that so far the provision of Section-50 of N.D.P.S. Act is concerned, the same is a matter of trial. Therefore, it is not open to the Petitioner to raise such a question at the stage of consideration of his bail application. He further contended that the official conducting search has followed the procedure as required under the law and that during trial, the prosecution shall produce materials to establish the fact that the procedure prescribed under Section-50 of the N.D.P.S. Act and Section-100 of Cr.P.C. has been fully complied with. He further contended that since the seized contraband articles are more than the Page 4 of 7. commercial quantity, the bar under Section 37 of the N.D.P.S. Act would be attracted to the facts of the present case. Therefore, the Petitioner is not entitled to be released on bail at this juncture. On such ground, learned counsel for the State submitted that the bail application of the Petitioner does not deserve consideration at this juncture. 10. Having heard the contentions raised by the learned counsels appearing for both the sides with regard to the search and seizure, this Court finds that the prosecution has not complied with Section-50 of N.D.P.S. Act as well as Section- 100 of the Cr.P.C. It is an admitted fact that the Petitioner was never produced before the Gazetted Officer or the Executive Magistrate as has been prescribed in Section-50 of the N.D.P.S. Act. Therefore, the officer conducting search was under an obligation to observe the procedure under Section-100 of Cr.P.C. On a careful scrutiny of the materials on record, this Court observes that only one independent witness has been shown in the final P.R. Therefore, this Court is of the prima facie view that Section-100 of Cr.P.C. has also not been fully complied with. 11. Without entering into the legal aspect of the matter, this Court is of the considered view that taking into consideration the aforesaid legal lacuna as well as the period of custodial detention and the fact that the Petitioner does not have any criminal antecedent, this Court is inclined to release the Petitioner on bail. 12. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.40,000/- Page 5 of 7. (Rupees forty thousand) with two local solvent sureties for the like amount to the satisfaction of the Court in seisin over the matter. Further, the release of the Petitioner shall also be subject to the following condition:- I) He shall file an affidavit before the trial court indicating therein his residential details and other details like Aadhar number, mobile phone number before the jurisdictional police station and his release shall be subject to verification of the aforesaid details and such details as would be furnished by any of his relative in the shape of an affidavit; and II) he shall not be involved in any offence of similar nature while on bail; III) he shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever; IV) he shall not make any default in attending the court during trial on each date without fail; and V) he shall appear before the concerned Police Station once in a fortnight preferably on 'Sunday’ in between 10.00 A.M to 1.00 PM. till conclusion of the trial; and VI) he shall not leave the jurisdiction of the Page 6 of 7. Court in seisin over the matter. Violation of any of the aforesaid terms and conditions shall entail cancellation of bail. 13. It is open to the Court in seisin over the matter to impose any other conditions as may be deemed just and proper. 14. It is further directed that the bail granted to the Petitioner is subject to the condition that the court below shall verify whether the Petitioner has any criminal antecedent of similar nature. In the event it is found that the Petitioner is having any criminal antecedent of similar nature, then this bail order shall automatically stand revoked.
Arguments
learned counsel for the Petitioner submitted that a total quantity of 51 Kgs. of contraband Ganja has been alleged to have been recovered from the exclusive and conscious possession of the present Petitioner. Learned counsel for the Petitioner in course of argument disputed the seizure on the ground that the procedure as laid down in Section-50 of N.D.P.S. Act has not been followed scrupulously by the Arresting Officer. He further submitted that the Petitioner does not have any similar criminal antecedent. Although the Petitioner does not belong to State of Odisha, however, he is ready and willing to abide by any terms
Decision
15. The BLAPL is, accordingly, disposed of. Issue urgent certified copy of this order as per Rules. Anil ( Aditya Kumar Mohapatra) Judge Page 7 of 7. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 26-Jul-2024 19:05:38