Kantheswar Kanhar Vs State of Odisha

Heard Mr. Panda, learned counsel for the Petitioner and Mr. Panigrahi, learned Additional Standing Counsel for the State. 2. The Petitioner is seeking pre-arrest bail in connection with C.T. Case No.19-A of 2021 pending on the file of learned District and Sessions Judgecum-Special Judge, Phulbani arising out of Phiringia P.S. Case No.23 of 2021 for commission of offences punishable under Sections 20(b)(ii)C/29 of the NDPS Act. The allegation against the Petitioner is that he along with the co-accused, who faced trial, are involved in the possession of contraband (Ganja) to the tune of 11 Quintal.

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It is submitted by Mr. Panda, learned counsel for the Petitioner that the implication of the Petitioner is on account of co-accused statement and since the co-accused have been acquitted by judgment dated 28.03.2025 by the learned Special Judge-Addl. Sessions Judge, Phulbani, Dist-Kandhamal, in Crl. Trial No.19 of 2021, inter alia, on the ground of violation of the provisions of Sections 50(2) and 55 of NDPS Act, the Petitioner, who does not have any criminal proclivity, may be protected by pre-arrest bail.

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Ex-facie alleged violation of section 50(2) of the NDPS act is not attracted in case of the Petitioner. The submission in this regard by the learned counsel for the Petitioner is misconceived.

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For convenience of reference Section 55 of the NDPS Act is extracted hereunder;

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“xxx xxx xxx

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55. Police to take charge of articles seized

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and delivered. — An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be

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sealed with a seal of the officer-in-charge of the police station.

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So far as violation of the Section 55 of the NDPS Act is concerned, the learned Special Judge observed thus;

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“XXX XXX XXX

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It is also the duty of the prosecution to prove through evidence that the contraband found in the search are in safe custody and then it was brought to the court from which sample is to be drawn. In this case as stated above, none of the official witnesses, except the informant has deposed about sealing the contraband ganja by brass seal of the informant.

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XXX XXX XXX”

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Referring to such finding of the learned Special Judge, it is submitted by the learned counsel for the Petitioner that in view of the same, custodial interrogation of the Petitioner is not warranted and he ought not to be remanded to custody as charge sheet has been filed.

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Learned counsel for the Petitioner further submits that the implication of the Petitioner is on account of co-accused statement and since the coaccused have been acquitted, the Petitioner ought not to be taken into custody.

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Such submission is opposed by the learned counsel for the State, Mr. Panigrahi, inter alia, on the ground that the charge sheet is filed under Sections 20(b)(ii)C and 29 of NDPS Act citing the Petitioner as accused and his status has been shown as absconder and so far as the trial is concerned, it is trite that the evidence on record is qua the co-accused, who faced trial and as such, the same ought not to ennure to the benefit of the accused like the Petitioner who is absconder. Hence, seeks dismissal of the ABLAPL. He also relies on the bar under Section 37(1)(b)(ii) of the NDPS Act to resist the prayer of the Petitioner. In this context learned counsel for the State relies on the dictum of the Apex Court in the case of State by the Inspector of Police vrs. B. Ramu , 2024 SCC OnLine SC 4073 .

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In the recent pronouncement, the Apex Court in the case of Satender Kumar Antil Vrs. Central Bureau of Investigation and another , reported in, 2023 SCC Online SC 452 , adopting the course of continuing Mandamus has clarified that the principles as set out in the case of Satender Kumar Antil Vrs. Central Bureau of Investigation and another , reported in, (2022) 10 SCC 51 shall apply in equal measure to application for anticipatory bail. The said finding of the Apex Court is extracted hereunder for convenience of ready reference:

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“XXX XXX XXX

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….We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail. XXX XXX XXX”

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The rival submissions have to be evaluated on the basis of clarificatory observation of the Apex Court extracted hereinabove.

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There is no cavil about the proposition of evaluation of evidence qua the accused facing trial. But, at the same time this Court cannot lose sight of the special features of evidence on record in a case under the NDPS Act in the light of the stipulations as contained relating to safe custody of the contraband as envisaged under Section 55 of the NDPS Act.

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Ex-facie the violation of Section 55 of the NDPS Act as noted by the learned Trial Court cannot be confined to the accused, who is in custody, in view of the unique nature of the statutory provisions of the NDPS Act and in the factual matrix of the case at hand.

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As such, the submission of the learned State counsel that the finding of the learned Trial Court regarding the violations as noted qua the seized contraband adverted to hereinabove, cannot be relied upon by an absconding accused, has to be negated.

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On a conspectus of the materials and evidence, keeping in view the violations relating to

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Section 55 of the NDPS Act as extracted above, taking into account the basis of the implication being on account of co-accused statement, such co-accused having since been acquitted, in the light of the Judgments of the Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu , reported in (2021) 4 SCC 1 , this Court directs that on surrendering within three weeks hence and moving for bail, the Petitioner shall be released on bail by the learned Court in seisin on such terms as deemed just and proper so as to ensure his presence in the trial, subject to verification of criminal antecedent of any nature.

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