Buna Kanhar vs State Of Odisha

G. Satapathy, J

This is an application U/S.483 of the BNSS by the petitioner for grant of bail in connection with Phulbani Sadar PS Case No. 07 of 2025 corresponding to C.T.(N) Case No.08 of 2025 pending in the Court of learned Special Judge, Phulbani, for commission of offence punishable U/Ss. 20(b)(ii)(C)/25/29 of the NDPS Act, on the main allegation of transporting 34Kgs of Contraband Ganja in his Maruti Swift LXI Car bearing Regd. No.OD-02AG-1950, along with co-accused persons.

In the course of hearing, Mr. Soura Chandra Mohapatra, learned Senior Counsel, who is being assisted by Mr. Raj Kumar Rout, learned counsel for the petitioner submits that the petitioner has been implicated in two cases for similar nature, but he was neither apprehended from the spot nor any Contraband article was recovered from him in the said two cases, rather the petitioner has been falsely implicated in this case by showing him to have been involved in other case and, therefore, the petitioner may kindly be considered to have well satisfied the conditions of Sec.37 of NDPS Act and he having been detained in false case, may kindly be granted bail.

On the other hand, Mr. M.R. Patra, learned Addl. PP by highlighting the allegation submits that not only the petitioner is involved in this case, but also he is involved in another case and the petitioner, therefore, having been implicated in two cases for transportation of commercial quantity of Contraband Ganja, his bail application may kindly be rejected.

After having considered the rival submissions upon perusal of record, there appears allegation against the petitioner and another co-accused Balakrushna Kanhar for transporting 34Kgs of Contraband Ganja in a Maruti Swift LXI Car bearing Regd. No. OD-02AG-1950, but co-accused Balakrushna Kanhar has already been granted bail by a co-ordinate Bench of this Court in BLAPL No. 979 of 2025, however, while granting bail to co-accused, there appears no discussion about the co-accused satisfying the conditions of Sec.37 of NDPS Act and thereby, the plea of parity may not be available to the petitioner in this case for not only on the aforesaid reason, but also for his alleged involvement in other case in Phulbani Sadar P.S. Case No. 163 of 2025 for commission of offence U/S.20(b)(ii)(C)/29 of the NDPS Act inasmuch as, the conditions as required to be satisfied by the accused for grant of bail for offence under NDPS Act involving commercial quantity are, (i) the accused/petitioner is not guilty of the offence and (ii) he is unlikely to commit offence while on bail, but the present petitioner's alleged involvement in another case for self same offence itself is indicative of his inability to satisfy the conditions of Sec.37 of NDPS Act.

In the context of grant of bail to co-accused for offence U/S.37 of NDPS Act involving commercial quantity, this Court considers it profitable to refer to the decision of Satpal Singh vrs. State of Punjab; (2018) 13 SCC 813, wherein the pre-arrest bail application of one accused namely Satpal Singh was turned down by one of the Bench of High Court, whereas the pre-arrest bail application of co-accused Beant Singh and Gurwinder Singh had been allowed by another Bench of the said High Court, but after noticing the provisions of Sec. 37 of NDPS Act, the Apex Court while upholding the view of the learned Judge declining to give protection to accused Satpal Singh for not recording satisfaction of the conditions U/S. 37 of NDPS Act cancelled the pre-arrest bail granted by the High Court to co-accused Beant Singh and Gurwinder Singh for not recording satisfaction of the conditions U/S. 37 of the NDPS Act, which is sine qua non for granting bail to the accused for offences involving commercial quantity. It is, therefore, very clear from the precedent as laid down by Apex Court that the order granting bail must demonstrate the conditions of Section 37 of NDPS Act, but if the order granting bail to co-accused does not discuss/ demonstrate about the satisfaction of the conditions of Section 37 of NDPS Act, it would not have any binding precedent for grant of bail to co-accused. In Satpal(supra), the Apex Court in Paragraph-14 of the decision has held as under:-

"xx xx. The quantity is reportedly commercial. In the facts and circumstance of the case, the High Court could not have and should not have passed the order U/S. 438 or 439 of CrPC without reference to Sec. 37 of NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant bail. Such a satisfaction having not been entered, the order dated 21.09.2007 (granting pre-arrest bail to accused person) is only to be set aside and we do so."

Additionally, this Court considers it proper to refer to the decision in Union of India vs. Ajay Kumar Singh @ Pappu; (2023) SCC OnLine SC 346, wherein the Apex Court set aside the order granting bail to the respondent-accused therein after taking note of the following facts at paragraph-9 & 11 which reads as under:-

"9. The driver of the vehicle Om Prakash Yadav revealed that he was driving the truck with the co-accused Amit Yadav as helper of one Bittu Dada of Jamshedpur and at the behest of Shri Ram Pravesh Yadav, resident of Ballia, he had gone to Jamshedpur where the acquaintance of respondent-accused gave him the truck which was loaded with ganja for safe delivery in lieu of Rs.50,000/-. He further informed that the respondent-accused indulges in illicit trade of ganja.

The information revealed by the above two accused persons indicated that both of them knew the respondent-accused and that they had connived with him to transport the illicit ganja and that they were in direct contact with the respondent-accused all through on his mobile number. The facts as unfurled from the complaint/FIR and the statements of the above two accused persons recorded under Section67 of the NDPS Act reveals that respondent-accused is the kingpin and the organiser of the illicit trade in ganja."

On a careful perusal of the materials placed on record together with allegation levelled against the petitioner and the charge-sheet being indicative of the implication of the petitioner for commission of offence U/S.20(b)(ii)(C) of the NDPS Act and the petitioner having been shown to be an absconder in the charge sheet, this Court is not inclined to grant bail to the petitioner at this stage, especially when the witnesses are yet to be examined.

In the result, the bail application of the petitioner stands rejected. Accordingly, the BLAPL stands disposed of. A soft copy of this order be immediately transmitted to the Court in seisin over the matter for reference.