Rakesh Kumar Barik vs State Of Odisha

G. Satapathy, J

Since these two bail applications arise out of one and same case record, the same are heard together and disposed of by this common order with the consent of the learned counsel for the parties.

These are two bail applications U/S.483 of BNSS by the petitioners for grant of bail in connection with Special Task Force PS Case No.16 of 2022 arising out of TR Case No.57 of 2022 for commission of offences punishable U/Ss. 21(C)/29 of the NDPS Act pending in the Court of learned 2nd Addl. Sessions Judge-cum-Spl. Judge under NDPS Act, Khordha, on the main allegation of jointly possessing 1030 Grams of Brown Sugar, along with co-accused persons.

In the course of hearing, Mr. Achyutananda Pattanaik, learned counsel for the petitioner in BLAPL No. 7794 of 2024 submits that co-accused Santosh Rautray @ Routray & Jagabandhu Biswal have already been granted bail by a Coordinate Bench of this Court, but the present Petitioner is languishing inside jail custody and the petitioner is in fact not found in conscious possession of Contraband article and, therefore, the petitioner may kindly be granted bail. In echoing such submission, Mr. Sanjib Kumar Bhanjadeo, learned counsel for the petitioner in BLAPL No. 13113 of 2024 also prays to grant bail to the petitioner.

3.1. On the other hand, Mr. M.R. Patra, learned Additional Public Prosecutor by drawing attention of the Court to the facts of this case submits that not only the petitioners were found in conscious possession of Contraband article, but they have failed to satisfy the conditions of Sec. 37 of NDPS Act and, therefore, the bail applications of the petitioners may kindly be rejected.

After having considered the rival submission upon perusal of record, there appears allegation against the petitioners for jointly possessing 1030 Grams of Brown Sugar, but even considering the submission as advanced, the petitioners are individually found allegedly in possession of 515 Grams Contraband article which is definitely coming under commercial quantity. Grant or refusal of bail for commission of offence under NDPS Act involving commercial quantity is governed by Sec. 37 of NDPS Act, which prescribes that no person accused of offence under NDPS Act involving commercial quantity shall be released on bail, where Public Prosecutor opposes such bail application; unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and he is unlikely to commit offence while on bail.

It is no doubt advanced for the petitioners that co-accused have already been granted bail, but the Coordinate Bench while granting bail to co-accused Santosh Rautray @ Routray in BLAPL No. 2276 of 2023 has taken note of the fact that no seizure of Contraband article from him and similar is the observation of the Coordinate Bench in the case of Jagabandhu Biswal in BLAPL No. 2256 of 2023. It has been held in catena of decision that satisfaction of the conditions U/S. 37 of NDPS Act is sine qua non for grant of bail to an accused for commission of offence under NPDS Act involving commercial quantity, but while granting bail to co-accused Santosh Rautray @ Routray & Jagabandhu Biswal, the Coordinate Bench has not taken into consideration the conditions of Sec. 37 of NDPS Act which is sine qua non for grant of bail. In this regard, this Court is fortified with the decision of the Apex Court in 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 an accused for offences involving commercial quantity. The relevant observation of Apex Court in Satpal Singh (supra) in Paragraph-14 is extracted as under:-

“14. 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.”

It is, therefore, very clear from the precedent as laid down by the Apex Court in Satpal Singh (supra) that an 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. On studied scrutiny of the materials placed on record in this case together with the allegation leveled against the petitioners for possessing more than commercial quantity of Contraband article, even individually and taking into account the other circumstances on record in entirety, this Court hardly finds the petitioners to have satisfied the conditions of Sec. 37 of NDPS Act. In the aforesaid facts and circumstances, this Court does not feel it proper to grant bail to the petitioners.

Hence, the bail applications of these petitioners stand rejected. Accordingly, these BLAPL Nos. 7794 & 13113 of 2024 stand disposed of.