High Court of Orissa rejected the bail application of the petitioner in an NDPS case involving the possession of 123 kg 900 grams of ganja, relying on the provisions of Section 37 of the NDPS Act and dismissing the plea of false allegations.
Prayer for bail rejected. Liberty granted to move for bail afresh in case of undue delay in trial.
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 AT CUTTACK BLAPL No. 11883 of 2023
Ram Phal
State of Orissa
….. Petitioner
Mr. A.P. Bose, Advocate Vs. ….. Opposite Party Mr. S.S. Pradhan, AGA
CORAM: JUSTICE SAVITRI RATHO
Order No.
ORDER 07.12.2023
(Through hybrid mode)
1. This application under Section 439 of Cr.P.C. has been filed in
connection with Adava P.S. Case No. 66 of 2023 corresponding to G.R.
Case No. 40 of 2023 pending in the court of the learned Special Judge,
Gajapati, Paralakhemundi under Section 20 (b) (ii) (c) of the NDPS
Act.
2. The prayer for bail of the petitioner has been rejected vide order dated 05.10.2023 passed by the learned Sessions Judge-cum-Special Judge, Gajapati, Paralakhemundi in G.R. Case No. 40 of 2023.
3. The prosecution allegations in brief against the petitioner are that
on 23.04.2023, while the informant was performing patrolling duty along with other officers at about 10 A.M. he received a tip off information from reliable source that two suspects were waiting near
Sundhipada village with five bags suspected to be containing contraband ganja for the purpose of transportation. The informant and
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his team reached the village at about 11 A.M. and found the petitioner and co-accused Prithi Ram both of Rajasthan standing near the village with five jerry bags from which smell of ganja was emanating. They tried to escape on seeing the Police, but they were nabbed. The informant tried to collect 2 independent witnesses and the weighman but was unable to do so. As the accused persons opted to be searched in presence of an Executive Magistrate, requisition was given to the
SDM, Paralakhemundi for deputation of Executive Magistrate and extra man power along with weighing machine and other materials. After arrival of the BDO, R. Udayagiri, search was conducted and one constable acted as a weigh man. The 5 plastic jari bags were found to contain fruiting and flowering tops of cannabis plants. The five bags were weighed and found to contain 28 kg. 300 grams, 21 kg. 700 grams, 25 kg 300 grams, 24 kg. 400 grams and 24 kg. 200 grams (total 123 kg. 900 grams). As the petitioner and the co-accused could not produce any authority for possession of the said ganja, the ganja was seized and they were arrested.
4. Mr. A.P. Bose, learned counsel for the petitioner submits that the petitioner is in custody since 23.04.2023 and from the nature of allegations against them and the nature of statements recorded by the I.O. which are parrot like in nature it is apparent that false allegations
have been made. He further submits that the ganja has not been
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recovered from the conscious possession of the petitioner as there is no allegation that the bags in question were either being carried or were held by the petitioner. He also submits that the petitioner does not have any criminal antecedents.
5. Mr. S.S. Pradhan, learned Additional Government Advocate opposes the prayer for bail stating that in view of the quantity of ganja seized, Section 37 of the NDPS Act will operate as a bar for considering of the prayer for bail of the petitioner. He further submits that as one person has recorded the statements of the witnesses regarding the same incident, no fault can be found if the statements are similar to each other. He further submits that other than the petitioner and the co-accused, no other person was found in the vicinity of the seized ganja bags and as the petitioner and co-accused belong to Hariyana, and could not give any plausible explanation for their presence at the spot near the ganja bags, they have been rightly arrested.
6. Considering the nature of allegations against the petitioner and the provisions of Section 37 of the NDPS Act, I am not inclined to release him on bail at this stage and reject the prayer for bail.
7. Since the petitioner is in custody since April, 2023, the learned
Special Judge, Gajapati, Paralakhemundi is requested to make an endeavour to dispose of the trial expeditiously.
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8. Liberty is granted to the petitioner to move for bail afresh before
the learned court below in case there is undue delay in completion of the trial.
9. Urgent certified copy of this order be granted on proper application.
10. Copy of this order be sent to the learned trial court by the
Registry.
(Savitri Ratho)
Judge
puspa
Signature Not Verified
Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 08-Dec-2023 19:03:36
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2 issues framed by the court
Whether bail should be granted in a case involving smuggling of a large quantity of ganja under the NDPS Act.
Whether Section 37 of the NDPS Act acts as a bar to bail in the present proceedings.
3 provisions across 2 enactments
Ram Phal
State of Orissa
Savitri Ratho
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
