Bench allowed bail in an N.D.P.S. case where 960 grams of Codeine Phosphate were found in the petitioner's vehicle, failing to meet the commercial quantity threshold under Section 37. Offences alleged were under Sections 21(c) and 29.
Petitioner released on bail on furnishing a bond of Rs.50,000 with two local solvent sureties each.
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BLAPL No. 2463 of 2020
MAKUNDA CHANDRA NAG … PETITIONER
-VERSUS- STATE OF ODISHA ...
... OPP.PARTY
Heard Mr.Milan Kanungo, learned Senior Advocate appearing for the petitioner and Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State.
This is an application under section 439 Cr.P.C. in connection with Bolangir Sadar P.S. Case No.24 of 2020 corresponding to Special G.R. Case No. 10 of 2020 pending in the file of learned Sessions Judge-cumSpecial Judge, Bolangir for alleged commission of offences under sections 21(c) and 29 of the N.D.P.S. Act.
The prayer for bail of the petitioner was rejected by the learned Sessions Judge, Bolangir vide order dated 05.03.2020.
Learned counsel for the petitioner contended that the petitioner was found in an Ashok Leyland Pick-up Van bearing registration No. OD-03-P-2651 in which thirty nos. of card board cartoons of Eskuf cough syrups containing all total 4800 bottles were found and the quantity of Codeine Phosphate of those 4800 bottles comes to 960 grams, which is lesser than the commercial quantity. He further submitted that another vehicle, i.e
Mahindra TUV 300 plus bearing registration No.OD26-C9693 was also seized in which seven nos. of card board cartoons of Eskuf cough syrups were found and from that 1120 bottles of Eskuf cough syrups, the quantity of Codeine Phosphate comes to 224 grams, but without preparing two separate seizure lists for seizure of Eskuf cough syrups from two different vehicles, the S.I. of Sadar Police Station, Bolangir prepared only one seizure list and took the total quantity of Codeine Phosphates found in the total number of bottles in the two vehicles and made it to be 1 kg. 184 grams, which comes under commercial quantity. It is contended by the learned counsel for the petitioner that the procedure adopted is illegal and the petitioner cannot be made liable for seizure of Eskuf cough syrups from the Mahindra TUV 300 plus vehicle bearing registration No.OD-26-C-9693 and if the contents of Codeine Phosphates available in the Eskuf cough syrups seized from the Ashok Leyland Pick-up Van bearing registration No. OD-03-P-2651 in which the petitioner was present, is taken into account, then it is lesser than commercial quantity and the bar under section 37 of the N.D.P.S. Act will not be made applicable and therefore, the bail application of the petitioner may be favourably considered.
Learned counsel for the State, on the other hand, produced the case diary and does not dispute that the petitioner was found in Ashok Leyland Pick-up Van
bearing registration No. OD-03-P-2651 and from the Eskuf cough syrups found in thirty nos. of cardboard cartoons containing 4800 bottles, the quantity of Codeine Phosphate was found to be 960 grams.
Considering the submissions of the learned counsel for the respective parties, the nature of accusation against the petitioner, the fact that the total quantity of Codeine Phosphate in 4800 bottles of Eskuf cough syrups found in the vehicle in which the petitioner was moving was 960 grams, absence of the bar under section 37 of the N.D.P.S. Act for such quantity and further taking into account the period of detention of the petitioner in judicial custody, I am inclined to release the petitioner on bail.
Let the petitioner be released on bail in the aforesaid case on furnishing a bail bond of Rs.50,000/(rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with further conditions as the learned court may deem just and proper.
The BLAPL is accordingly disposed of. Issue urgent certified copy as per Rules.
…………………..……
S.K. Sahoo, J.
PKSahoo
2 issues framed by the court
Whether the petitioner should be released on bail given the quantity of Codeine Phosphate was below the commercial quantity defined under the N.D.P.S. Act.
Whether bail can be granted where the accused is found in a seizure but the total quantity of seized narcotics from all vehicles did not constitute a commercial quantity.
4 provisions across 2 enactments
Makundra Chandra Nag
State of Odisha
S.K. Sahoo
As recorded by the court registry
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