Wasim Akhtar Khan Vs State of Odisha

The Petitioner is seeking pre-arrest bail in connection with Special (NDPS) Case No.15(B) of 2021 pending on the file of learned District and Sessions Judge-cum-Special Judge (NDPS), Bhadrak, arising out of Special Task Force (Crime Branch) P.S. Case No.05 of 2021 for commission of offences punishable under Sections 21(c)¹ and 29² of NDPS Act.

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1 21. Punishment for contravention in relation to manufactured drugs and preparations .— Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,— ( a ) xxx xxx

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( b ) xxx xxx

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( c ) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

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Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

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2 29. Punishment for abetment and criminal conspiracy.— (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860)1, be punishable with the punishment provided for the offence.

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(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which—

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(a) would constitute an offence if committed within India; or

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(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same

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Page 1 of 7

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The allegation against the present Petitioner is that he along with one of the co-accused, namely, Mir Minhaj Quadri, were involved in the trade and transportation of the contraband (Brown Sugar) to the tune of 1kg 140grms.

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It is apt to note that it is the case of the prosecution that the co-accused, namely, Mir Minhaj Quadri, was nabbed along with the contraband and charge sheet is filed against him and the basis of the implication of the Petitioner is on account of the statement of the said co-accused and as such the Petitioner was cited as an absconder in the charge sheet.

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It is submitted by the learned counsel for the Petitioner that the co-accused, namely, Mir Minhaj Quadri, who faced trial was acquitted by judgment dated 26.06.2024 by the learned Special Judge, Bhadrak in Special Case No.15 of 2021 and the attention of this Court is drawn to the grounds of acquittal, which for convenience of reference is culled out hereunder:-

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“(i) non-compliance of mandatory provisions of Sec.42(2)³ , 50(6)⁴ of the NDPS Act, 1985. (ii) non-compliance of directory provisions of Sec. 52A⁵ , 55⁶ , 57⁷ & 67⁸ of the NDPS Act.

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as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.

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3 42. Power of entry, search, seizure and arrest without warrant or authorisation.— xxx xxx xxx

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(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

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4 50. Conditions under which search of persons shall be conducted. — xxx xxx xxx

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(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

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(iii) non-examination of any person from the office of the STF, CID CB, Bhubaneswar. (iv) non-production of Malkhana Register before the court.

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(v) handing over the so called used brass seal to the zima of independent witness and nonproduction of the same.

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(vi) non-certification of inventory seizure by the Executive Magistrate.

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(vii) non-production of brass seal before the SDJM, Bhadrak at the time of production of seized contraband article

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5 52-A. Disposal of seized narcotic drugs and psychotropic substances.— (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

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(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

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(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

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(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.

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6 55. Police to take charge of articles seized 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 sealed with a seal of the officer-in-charge of the police station.

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7 57. Report of arrest and seizure.— Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

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8 67. Power to call for information, etc.— Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act—

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(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

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(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

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(c) examine any person acquainted with the facts and circumstances of the case.

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Page 3 of 7

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(viii) discrepancy in the evidence of prosecution witnesses regarding seizure of - vehicle in question.”

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And, referring to the discrepancies as noted by the learned trial Court, it is submitted by the learned counsel for the Petitioner that so far as the violation of mandatory provisions contained in Section 50(6)⁴ of NDPS Act is concerned, it applies in equal measure to the present Petitioner so also the non-compliance of the directory provisions and it is asserted with vehemence that the time tested view that the evidence on record relates to an accused who has faced trial cannot be mechanically read into an allegation under the NDPS Act, taking into account the peculiar nature of the allegations.

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Hence, referring to the same and the patent discrepancies in the evidence of prosecution witnesses as noted by the trial Court regarding seizure of the vehicle in question, which has been stated as (viii) as above, learned counsel for the Petitioner refers to the Paragraph-26 of the said judgment. The same is extracted hereunder for convenience of reference:-

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xxx xxx xxx

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“26. Furthermore, there is discrepancy in the evidence of official witness as regards to the seizure of vehicle and its registration number in question. PW-3 has stated seizure of apache vehicle. In cross-examination he has stated the registration number of apache was OD-2206808. PW-4 has stated one Honda Activa Scooty bearing registration no.OD-22G-6809 was seized. He further stated no contraband article

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has been seized from any motor cycle and the dickey of the scooty was locked. In his evidence he stated one motor cycle another scooty. PW-5 has stated a scooty was seized but does not say any registration number. In cross-examination he has stated that the registration number is OD-02G 6809. PW-8 the informant stated one Honda Activa bearing registration no.OD-22G6809 was seized. PW-9 has stated Honda scooter bearing registration no.OD-220-6809 was seized. Here in this case at hand, all the witnesses of prosecution are police official including Executive Magistrate. But on close scrutiny of their evidence going to show that they have stated the alleged seizure of motor cycle in different manner with different registration number. If this being the evidence and they have performed patrolling duty with same time and place and deposed different vehicle with registration number-naturally doubt generates in mind about the genuineness of the prosecution case.”

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xxx xxx xxx

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Learned counsel for the State opposes the prayer for pre-arrest bail.

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It is trite that the evidence adduced in a trial is applicable qua the accused who is in the dock and it has limited application for the accused, who has not faced trial. But this Court cannot lose sight of the special features of the NDPS Act, in which the seizure is of great significance and it needs to emphasize that the finding regarding seizure in a trial cannot be ignore only because the accused is an absconder and has not faced trial. The Apex Court has reiterated times without number, keeping in view the stringent provisions of the

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NDPS Act, the materials against the accused persons deserve greater scrutiny also in view of the twin embargos even for granting bail as per the legislative intent contained in Section 37(1)(b)(ii)⁹ of NDPS Act.

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It is submitted by the learned counsel for the State that admittedly the Petitioner is an absconder and the violations of most of the provisions for which the co-accused has been acquitted are directory in nature. Hence, their violation cannot be a ground to grant the exceptional remedy for pre-arrest bail. 11. The rival submissions have been considered on the anvil of the latest judgment of the Apex Court in the case of Satendra Kumar Antil Vrs. Central Bureau of Investigation¹⁰ , wherein adopting the doctrine of continuing mandamus, the Apex Court has clarified that pre-arrest bail is another facet of bail granted to an accused in custody and has succinctly stated that the anticipatory bail is a species of bail granted to an accused in custody. Hence, the consideration cannot vary and with respect it is noted that there is no embargo in considering an accusation under the Special Act on the touchstone of the principles as laid down in the case of Satendra Kumar Antil (Supra) .

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9 37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—(a) xxx xxx

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(b) no person accused of an offence punishable for 2[offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—

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(i) xxx xxx

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(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

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(2) xxx xxx

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10 Satender Kumar Antil v. CBI , 2023 SCC OnLine SC 452

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On considering the materials on record referring to the discrepancies in evidence relating to the violation of mandatory provisions under Section 50(6)⁴ of the NDPS Act as well as the other discrepancies and the statements of the official witnesses which cast a serious doubt regarding the very seizure of the contraband and keeping in view that the sole basis of accusation against the Petitioner is on account of the co-accused statement, who has since been acquitted, as noted, and taking into account that the Petitioner does not have any criminal proclivity as borne out from the affidavit which is on record. This Court is persuaded to hold that the Petitioner successfully negotiated the twin hurdles envisaged under Section 37(1)(b)(ii)⁹ of NDPS Act. And hence, it is directed 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 subject to verification of criminal antecedent.

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