Single Judge granted bail to the petitioner in an NDPS case where less than commercial quantity of ganja was found in his possession. The court held that section 37 bar does not apply and released him on a bond of Rs. 50,000 with two sureties.
Petitioner released on bail on furnishing a bond of Rs. 50,000 with two local solvent sureties for the like amount.
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.
BLAPL No. 81 of 2021
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Priya Ranjan Behera
… Petitioner
-Versus-
State of Odisha
... Opp. party
Heard learned counsel for the petitioner and learned counsel for the State.
This is an application under section 439 of Cr.P.C. in connection with T.R. Case No.173 of 2019 arising out of Mathili P.S. Case No.174 of 2019 pending in the Court of learned Sessions Judge -cumSpecial Judge, Malkangiri for offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act.
The petitioner moved an application for bail before the Court of learned Sessions Judge -cum- Special Judge, Malkangiri, which was rejected on 28.08.2020.
Learned counsel for the petitioner submits that the petitioner is in judicial custody since 23.12.2019 and his earlier bail application in BLAPL No. 297 of 2020 has been disposed of as withdrawn as per order dated 22.07.2020. Learned counsel further submitted that it is the prosecution case that the petitioner and the coaccused Subrat Kumar Behera were moving in a bus bearing registration No.OD-02BA-1497, which was proceeding towards Cuttack from Malkangiri and each carrying one airbag and from the airbag of the present
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petitioner, one black colour screen touch OPPO mobile, one Bank of India debit card, one Andhra Bank debit card, voter ID card apart from contraband ganja were recovered. Similarly from the air bag of the co-accused Subrat Kumar Behera, one Samsung golden colour screen touch mobile along with contraband ganja was seized and in each of the bag, the quantity of ganja was found to be lesser than commercial quantity and the air bags were marked as Ext.A and Ext.B respectively. Learned counsel for the petitioner further submitted that without preparing two separate seizure lists to show the contraband ganja seized from the possession of each of the accused, one joint seizure list was prepared and the quantity of ganja found in two air bags were mixed up to make it a commercial quantity, which was not proper and justified. It is further submitted by the learned counsel for the petitioner that if the quantity of contraband ganja seized from the individual possession of the petitioner is taken into account, the bar under section 37 of the N.D.P.S. Act will not be applicable and therefore, the petitioner’s bail application may be favourably considered.
Learned counsel for the State, on the other hand, has produced the case diary and fairly submitted that the two air bags were marked as Ext.A and Ext.B and from Ext.A the quantity of ganja was found to be 10 kgs. 300 grams whereas from Ext.B the contraband ganja was found to be 11 kgs. 200 grams.
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Considering the submissions made by the learned counsel for the respective parties, the nature of accusation against the petitioner, in absence of any clinching material to show what was the quantity of ganja found in the airbag of the present petitioner and which bag belongs to which of the accused and since in each of the bags lesser than commercial quantity of ganja was found, in absence of any bar under section 37 of the N.D.P.S. Act and keeping in view 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 bail bond of Rs.50,000.00 (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions that the petitioner shall not indulge in any criminal activity and shall appear before the learned trial Court on each date to which the case would be posted for trial.
Violation of any of the conditions shall entail cancellation of bail.
The BLAPL is accordingly disposed of.
Issue urgent certified copy on proper application.
…………………..……
S.K. Sahoo, J.
PKSahoo
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3 issues framed by the court
Whether the petitioner is entitled to bail when the quantity of contraband recovered from his possession is less than the commercial quantity under section 37 of the N.D.P.S. Act.
Whether the recovery of a single load of contraband shared by multiple accused in transit establishes commercial quantity for all individuals.
Whether bail should be granted in light of the period of detention in judicial custody and absence of clinching material linking the heavier quantity to the petitioner specifically.
3 provisions across 2 enactments
Priya Ranjan Behera
State of Odisha
S.K. Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
