Asim Kumar Das and another vs State of Orissa

The petitioners Asim Kumar Das and Kulu Kumbhar have filed this application under section 439 of Cr.P.C. in connection with Dhama P.S.

Case No. 50 of 2017 corresponding to T.R. Case No. 31 of 2017 pending in the Court of learned Sessions Judge -cum- Judge, Special Court,

Sambalpur for commission of offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter

''N.D.P.S. Act'').

The prosecution case, in short, is that while the informant Rasmibala Sethi, S.I. of police, Dhama police station along with other police officials

were performing duty on 30.03.2017 at about 6.00 a.m. on S.H. 15 near College Chowk, Dhama, they found one car came from Sonepur side

towards Sambalpur side in a high speed. When the police party signalled the car to stop, the driver of the car stopped the car but opening the door

of the car, he ran away towards the nearby jungle. Though the police staff chased to apprehend the driver but they failed in their attempt. Two

persons were found inside the car which was bearing registration no. OR-14-X-0931. Though those two persons also tried to escape but they

were detained and they disclosed their names and addresses and they were the petitioners in this bail application. The petitioners disclosed the

name of the driver of the car as Rahul Yadav. The vehicle was searched and one white colour plastic gunny bag was found on the backside seat of

the car from which smell of ganja was coming out. The petitioners disclosed that the plastic gunny bag was containing ganja and they purchased it

from Sonepur from one Gulu Sahu and carrying the same towards Rourkela to sell it in higher price to Shammy Singh who was also the owner of

the car in which they were carrying ganja. The petitioners failed to produce any document or authority in support of their possession and

transportation of ganja in the car. The informant intimated her superior officers about the detection of ganja and the petitioners were informed by

her regarding their option to be searched in person as well as search of the car in presence of the Executive Magistrate or Gazetted Officer but

they denied to be searched before any of them. The informant called to local witnesses, weighman and after their arrival, the personal search of the

petitioners were taken but nothing incriminating were found and when the car was searched in presence of the witnesses, one white colour plastic

gunny bag was found containing ganja. The ganja was weighed and it was found to be 22 kgs. Two samples of ganja of 25 grams each was

collected and kept separately in paper envelops which were marked as Exts. A-1 and A-2. The bulk ganja packet and the sample packets were

sealed with the personal brass seal of the informant in presence of the witnesses. Seizure lists were prepared and copies thereof were given to the

petitioners and they put their signatures on the same in token of receipt. The personal brass seal was handed over in the zima of witness Debasis

Pattnaik after executing proper zimanama. Since the petitioners were found in exclusive and conscious possession of 22 kgs. of ganja in the car,

they were brought to the police station along with the seized ganja packets, car and first information report was lodged before the Inspector in

charge of Dhama police station, on the basis of which Dhama P.S. Case No.50 of 2017 was registered on 30.03.2017 for offence punishable

under section 20(b)(ii)(C) of the N.D.P.S. Act. The petitioners were forwarded to the Court on 31.03.2017 and since then they are in jail

custody.

Mr. Devashis Panda, learned counsel appearing for the petitioners contended that co-accused persons namely Shammy Singh, Gulu @ Bulu

Sahu and Rahul Yadav have been released on bail by this Court in BLAPL No.3413 of 2017, BLAPL No.7408 of 2017 and BLAPL No.4960

of 2017 respectively. It is further contended by the learned counsel for the petitioners that the investigation is perfunctory and since P.S. Case

numbers find place in the seizure lists which were stated to have been prepared at the spot, it creates doubt regarding the timing and place of its

preparation rather it indicates that the seizure lists were concocted. It is further contended that the witnesses are not consistent regarding seizure

and preparation of homogenous mixture of ganja found from the plastic bag was not proper and justified. It is further contended that the mandatory

provision under section 50 of the N.D.P.S. Act has not been complied with and therefore, the bail application of the petitioners may be favourably

considered.

Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State on the other hand opposed the prayer for bail and contended that the

petitioners stand in a different footing than the co-accused persons who have been enlarged on bail. It is further contended that all the necessary

formalities before search and seizure have been complied with and since commercial quantity of ganja has been seized, in view of the bar under

section 37 of the N.D.P.S. Act, the petitioners are not entitled to be released on bail.

Adverting to the contentions raised by the learned counsels for the respective parties, it appears that prima facie materials are available on

record to show that 22 kgs. of ganja was found in the plastic gunny bag seized from the back seat of the red colour Chevrolet Beat Car bearing

registration No. OR- 14-X-0931 which is of commercial quantity and the petitioners were found in the car and therefore, before granting bail on

merits for offence under section 20(b)(ii)(C) of the N.D.P.S. Act, the limitation on granting bail specified in clause (b) sub-section (1) of section 37

of the N.D.P.S. Act are required to be considered.

On perusal of the case records, it prima facie appears that the petitioners were present in the car when it was stopped. It further appears that

even though the driver of the car escaped but the petitioners were detained while they were trying to escape from the car. The witnesses have

stated how the option was given to the accused persons before search and seizure and how the vehicle was searched and ganja packet was seized

from the car. Though non-compliance of section 50 of the N.D.P.S. Act was highlighted but whether in the facts and circumstances of the case,

such compliance are necessary or not and if so, whether materials available on record indicate such compliance are to be adjudicated by the

learned trial Court at the appropriate stage of trial. It would not be proper to give any finding in that respect at this stage. Any finding regarding

compliance or non-compliance of the mandatory provisions of the N.D.P.S. Act at the stage of bail is to be avoided as it requires complete

analysis of oral and documentary evidence which can be better appreciated by the trial Court at the appropriate stage. However, on perusal of the

case records, it indicates that the documents relating to the unwillingness of the petitioners to be searched in presence of Executive Magistrate or

Gazetted Officer are available on record in which the signatures of the petitioners are also appearing. Therefore, the contention of the learned

counsel for the petitioners in that respect is not acceptable.

Though the seizure list relating to ganja packet and sample packets and other articles indicates that it was prepared in connection with Dhama

P.S. S.D.E. No. 632 dated 30.03.2017 but the P.S. Case number and date also find place on the top of the seizure list. The F.I.R. reveals that as

per the direction of the IIC of Dhama police station vide command certificate no.1383720 dated 30.03.2017 and S.D.E. No.632 dated

30.03.2017, the informant and other police officials performed blocking duty on S.H.15 near College Chowk, Dhama on the date of occurrence.

Therefore, there is no irregularity in the mention of S.D.E. number in the seizure list. However, it is apparent on the materials available on record

that at the time of preparation of the seizure lists at the spot, the F.I.R. has not been registered and it was registered only after the arrival of the

informant along with the seized articles and the petitioners at the police station. It prima facie appears that after the registration of the P.S. Case,

the same has been reflected on the top of some of the seizure lists which were already prepared containing the S.D.E. numbers. This aspect has to

be confronted to the informant who prepared the seizure lists during trial and she may give the explanation as to under what circumstances the P.S.

Case number found mention in the seizure lists. When that stage has not reached, it would not be proper to hold that the investigation is perfunctory

and the seizure lists were concocted to falsely entangle the petitioners in the case.

Even though some of the co-accused persons have been granted bail but it prima facie appears that they stand in a different footing. They were

not found in the car with seized ganja like the petitioners and they were implicated basing on the confessional statements of the petitioners before

police. Law is well settled that parity cannot be sole ground for grant of bail but it is one of the grounds for consideration of question of bail. The

grant of bail is not a mechanical act. In the factual scenario, the claim of parity is not acceptable.

Section 37 of the N.D.P.S. Act opens with a nonobstance clause. Non-obstance clause must be given its due importance. The powers of the

High Court to grant bail under section 439 Cr.P.C. are subject to the limitations contained in section 37 of the N.D.P.S. Act. Once the Public

Prosecutor opposes the application for bail to a person accused of the enumerated offences under section 37 of the N.D.P.S. Act, in case, the

Court proposes to grant bail to such a person, two mandatory conditions are required to be satisfied in addition to the normal requirements under

the provisions of the Cr.P.C. or any other enactment. The Court must be satisfied that there are reasonable grounds for believing that the person is

not guilty of such offence and that he is not likely to commit any offence while on bail. The satisfaction of the Court about the existence of the said

twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. The expression ""reasonable grounds"" used

in section 37(1)(b)(ii) of the N.D.P.S. Act connotes substantial probable causes which in turn points to existence of such facts and circumstances

as are sufficient in themselves to justify recording of such satisfaction. Whether the grounds are reasonable or not depend on the circumstances in a

given situation. The Court while dealing with an application for bail is not called upon to record a finding of ''not guilty'' but to see if there are

reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. Additionally, the

Court has to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come

to such a conclusion.

Therefore, when the learned counsel for the petitioners has failed to satisfy on the basis of the factual position to conclude that the restriction

under section 37 of the N.D.P.S. Act are fulfilled to warrant grant of bail and when prima facie material available on record to show that the

petitioners were carrying commercial quantity of ganja in the car and culpable mental state can be prima facie presumed under section 35 of the

N.D.P.S. Act, in view of the nature and gravity of the accusation against the petitioners and taking into account the punishment prescribed for such

offence, I am not inclined to release the petitioners on bail.

The observation made while disposing of this bail application relates to the materials collected during course of investigation and the findings

recorded herein are for the purpose of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of

the case. The learned trial Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors

any finding recorded in this order. Accordingly, the BLAPL stands dismissed.