This Court dismissed bail applications of petitioners charged under the N.D.P.S. Act for transporting ganja. Holding that Section 37 conditions were mandatory and not prima facie met, the Court refused release despite a co-accused's earlier bail.
Bail applications dismissed as they failed to satisfy mandatory conditions of Section 37 of N.D.P.S. Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 1317 Of 2019
An application under section 439 of the Code of Criminal Procedure in connection with Sahidnagar P.S. Case No.329 of 2018 corresponding to T.R. Case No.245/1711 of 2018 pending on the file of learned Addl. Sessions Judge -cum- Special Judge, Bhubaneswar.
---------------------------Deepak Parida and another …..… Petitioners -VersusState of Odisha ……. Opp. Party
BLAPL NO. 1409 Of 2019
| Tripati Mohanty | …..… | Petitioner |
|---|---|---|
| -Versus- | ||
| State of Odisha | ……. | Opp. Party |
| For Petitioners: | - | Mr. Devashis Panda |
| For Opp. party: ------ |
- ------------------------- |
Mr. Arupananda Das Addl. Govt. Advocate |
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
--------------------------------------------------------------------------------------------------Date of Argument: 19.03.2019 Date of Order: 25.03.2019 ---------------------------------------------------------------------------------------------------
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S. K. SAHOO, J . The petitioners Deepak Parida and Padma Charan Pradhan in BLAPL No.1317 of 2019 and the petitioner Tripati Mohanty in BLAPL No.1409 of 2019 have approached this Court under section 439 of Cr.P.C. for bail in connection with Sahidnagar P.S. Case No.329 of 2018 corresponding to T.R. Case No.245/1711 of 2018 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) pending on the file of learned Addl. Sessions Judge -cum- Special Judge, Bhubaneswar. Their bail application was rejected by the learned Sessions Judge in Charge, Khurda at Bhubaneswar as per order dated 14.12.2018.
Since both the bail applications arise out of a common order, with the consent of the parties, those were heard analogously and disposed of by this common order.
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diary vide SDE No.30 dated 20.07.2018 and proceeded towards Akhandalamani Basti with other police officials to verify the veracity of the information and on reaching there, they all waited. At about 8.30 a.m. a white coloured Chevrolet car bearing registration no.OD-07-D-1443 came from Jaydev Vihar side and the vehicle was signalled to stop. When it stopped, five persons including a woman were found sitting inside the car. The petitioners were in the car and all the occupants disclosed their names and addresses. Two bags were found in the backside of the vehicle emitting smell of ganja. Independent witnesses were called to the spot and in their presence, accused Pabitra Khatei who was the owner -cum- driver of the vehicle disclosed that he had procured cannabis from Kodala and was proceeding towards Bhubaneswar Railway Station to hand it over to a person waiting there. Option was given to the accused persons regarding search in compliance of the provision under section 50 of the N.D.P.S. Act and the accused persons desired to be searched in presence of an Executive Magistrate. The Inspector deputed a constable with a requisition addressed to DCP, Bhubaneswar to depute an Executive Magistrate to remain present at the time of search and seizure. The vehicle was guarded and after about one hour, the Executive Magistrate arrived at the spot and gave his identity to
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the occupants of the vehicle. A weighing scale was called for. The Executive Magistrate as well as other officials including the independent witnesses gave their personal search and thereafter personal search of the occupants of the vehicle was taken and the two bags emitting smell of ganja were opened and total quantity of 62.6 kgs. ganja was found in it on weighment. Samples were collected and sealed, seizure lists were prepared after observing all the procedural formalities under the N.D.P.S. Act and since the accused persons failed to produce any authority for possessing such ganja, they were arrested and forwarded to the Court.
On receipt of the written report, Saheed Nagar P.S. Case No.329 of 2018 was registered under section 20(b)(ii)(C) of the N.D.P.S. Act and Sri G.K. Jena, S.I. of police of Saheed Nagar police station was directed to take up investigation of the case. In course of investigation, the investigating officer visited the spot, examined the informant and other witnesses, arrested the accused persons including the petitioners and forwarded them to the Court. He sent the exhibits to S.F.S.L., Rasulgarh for chemical analysis and deposited the seized sample Ganja in the Court Malkhana and bulk ganja in the police station Malkhana. He prepared a spot map. On completion of investigation, as
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sufficient evidence under section 20(b)(ii)(C) of the N.D.P.S. Act was found against the accused persons, charge sheet was submitted on 16.11.2018.
Mr. Arupananda Das, learned Additional Government
Advocate on the other hand opposed the prayer for bail and
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submitted that since the petitioners were the occupants of the vehicle in which commercial quantity of contraband ganja was being transported and the statements of witnesses clearly indicate that all the occupants were aware about such transportation and they were consciously taking the gunny bags towards railway station, in view of the bar under section 37 of the N.D.P.S. Act, they are not entitled to be released on bail.
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Ganjam District. If any such defence plea that they were mere passengers in the offending vehicle is taken during trial by the petitioners and evidence is adduced in that respect, the learned trial Court shall duly consider the same and decide as to whether the petitioners were in possession of the contraband ganja while moving together in the vehicle or they were mere passengers without having any knowledge about such transportation. At the stage of consideration of the bail application, if any finding regarding on the defence plea of the accused is given, it is likely to cause serious prejudice to either of the parties during trial.
Section 37 of the N.D.P.S. Act opens with a nonobstance clause. Non-obstance clause must be given its due importance. The powers of the High Court to grant bail under section 439 Cr.P.C. are subject to the limitations contained in section 37 of the N.D.P.S. Act. Once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under section 37 of the N.D.P.S. Act, in
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case, the Court proposes to grant bail to such a person, two mandatory conditions are required to be satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. The Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence and that he is not likely to commit any offence while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. The expression "reasonable grounds" used in section 37(1)(b)(ii) of the N.D.P.S. Act connotes substantial probable causes which in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of such satisfaction. Whether the grounds are reasonable or not depend on the circumstances in a given situation. The Court while dealing with an application for bail is not called upon to record a finding of ‘not guilty’ but to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. Additionally, the Court has to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.
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Law is well settled that parity cannot be the sole ground for grant of bail but it is one of the grounds for consideration of question of bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle of law and the Judge ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis of claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency.
In case of Union of India -Vrs.- Rattan Mallik @ Habul reported in (2009) 42 Orissa Criminal Reports (SC)
697 where Union of India filed an appeal before the Supreme Court challenging the order of the Allahabad High Court in suspending the sentence awarded by the trial Court to the respondent/accused for having committed offences under sections 8/27-A and 8/29 of the N.D.P.S. Act and granting bail, considering the limitation imposed in sub-clause (b) of subsection (1) of section 37 of the N.D.P.S. Act, it was held that merely because, according to the learned Judge, nothing was
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found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. It was further held that it seems that the provisions of the N.D.P.S. Act and more particularly section 37 of the N.D.P.S. Act were not brought to the notice of the learned Judge. It was further held that the order passed by the High Court clearly violates the mandatory requirements of section 37 of the N.D.P.S. Act. The bail order was set aside with a liberty to decide afresh in the light of the limitation imposed.
Therefore, when the mandatory provision under section 37 of the N.D.P.S. Act has not been considered while granting bail to the co-accused, I am of the humble view that such an order of granting bail cannot form the basis of claim of parity.
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under section 35 of the N.D.P.S. Act, in view of the nature and gravity of the accusation against the petitioners and the punishment prescribed for such offence, I am not inclined to release the petitioners on bail.
The observation made while disposing of this bail application relates to the materials collected during course of investigation and the findings recorded herein are for the purpose of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of the case. The learned trial Court would be at liberty to decide the matter in the light of evidence which would be adduced during trial de hors any finding recorded in this order.
Accordingly, the bail applications being devoid of merits, stand dismissed.
….……………………… S. K. Sahoo, J.
Orissa High Court, Cuttack The 25th March 2019/Sisir
3 issues framed by the court
Whether bail can be granted under section 439 Cr.P.C. for offences under section 20(b)(ii)(C) of N.D.P.S. Act when Section 37 mandatory conditions are not satisfied.
Whether petitioner occupants of a vehicle carrying ganja were merely passengers or conscious participants in transportation.
Whether parity with bail granted to a co-accused can alone warrant release when Section 37 of N.D.P.S. Act was not considered by the earlier Court.
Colour shows how this judgement treated each authority
Union of India -Vrs.- Rattan Mallik @ HabulRelied on¶35
(2009) 42 Orissa Criminal Reports (SC) 697
Arati KhateiDistinguished¶29
BLAPL No. 146/2019
4 provisions across 2 enactments
Deepak Parida and another
Tripati Mohanty
State of Odisha
S. K. SAHOO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
