Satish Singh vs State Of Odisha

S. K. Sahoo, J

This is the 3rd successive bail application of the petitioner Satish Singh who is in judicial custody since 07.03.2021 in connection with Mathili P.S. Case No. 42 of 2021 corresponding to Special G.R. Case No.36 of 2021 pending in the Court of Sessions Judge -cum- Special Judge, Malkangiri for the offence under section 20(b)(ii)(C) of the N.D.P.S. Act.

The prosecution case, in short, is that on 07.03.2021 at 6.30 p.m., Krutibas Behera, the S.I. of Police of Salimi Outpost under Mathili police station in the district of Malkangiri submitted a written report before the I.I.C., Mathili police station that on 06.03.2021 at about 11.30 p.m., while he was performing night patrolling and MV checking duty on NH-326 near Govindapalli bus stand, at about 12.35 a.m. one Maruti Suzuki vehicle and Toyota Corolla vehicle back to back came in high speed from Malkangiri side. On suspicion, the informant stopped both the vehicles and in Maruti Suzuki vehicle bearing registration No.HR-22-4972, four persons were found sitting including the driver and in the Toyota Corolla vehicle bearing registration No.HR-12-J-1000, four persons were also there including the driver. When the informant asked them to show the documents of the vehicles, they denied of having the same. As suspicion arose, the informant conducted verification of the vehicles and noticed that the Maruti Suzuki vehicle was containing two nos. of plastic sacks packed with something, which were loaded in the backside dickey and in the Toyota Corolla vehicle, three nos. of plastic sacks packed with something were loaded in the backside dickey. From the pungent smell coming out from the plastic sacks, the informant suspected that it was ganja and accordingly, he asked the drivers and other occupants of both the vehicles about the loaded plastic sacks of the vehicles, but they fumbled initially to give any answer and thereafter, they confessed that ganja has been kept in the plastic sacks. The occupants including the drivers of both the vehicles disclosed their names and addresses. The petitioner Satish Singh was found moving in Toyota Corolla vehicle. The accused persons also disclosed that they have procured ganja from Chitrakonda Swabhiman area and were transporting the same in the two vehicles. In presence of independent witnesses, the plastic sacks were opened and from the colour, smell, shape of the articles found inside the plastic sacks and from his own departmental experience, the informant was confirmed that it was ganja. The accused persons failed to produce any licence or authority for possession of huge quantity of ganja kept in the five plastic sacks. During personal search of the petitioner, one mobile phone, aadhar card, original voter identity card, one pan card, driving licence, Axis Bank Debit card, Axis Visa Credit card etc. were found and those were seized. On weighment, the gross weight of the ganja came to be 138 kg. 300 grams and samples in duplicate were collected from each of the plastic sacks and the sample packets and bulk quantity of ganja were separately seized and sealed and the seizure list was prepared and the accused persons with the seized articles were taken to Mathili police station where first information report was lodged.

The first bail application of the petitioner in BLAPL No. 2562 of 2021 was disposed of as withdrawn as per order dated 06.11.2021. The second bail application of the petitioner in BLAPL No.10163 of 2021 was also disposed of as withdrawn on 09.09.2022. After withdrawal of the second bail application, the petitioner has not moved the learned trial Court again for bail, but he has annexed the rejection order dated 08.03.2021 with the present bail application, which was also annexed to the second bail application i.e. BLAPL No.10163 of 2021. In this third bail application, it has also not been mentioned that the petitioner approached this Court in BLAPL No.10163 of 2021 and thus, there is suppression of the fact.

Mr. Shyam Manohar, learned counsel appearing for the petitioner contended that the similarly situated co-accused persons, namely, Raghu and Ram Chandra Mali have been released on bail by a Coordinate Bench of this Court in BLAPL No.2430 of 2021 and BLAPL No. 2571 of 2021 respectively. He further submitted that in view of non-compliance of the mandatory provisions under sections 42 and 50 of the N.D.P.S. Act and release of the similarly situated co-accused persons on bail, the bail application of the petitioner may be favourably considered.

Mrs. Susamarani Sahoo, learned Addl. Standing Counsel for the State, on the other hand, opposed the prayer for bail and contended that since commercial quantity of ganja has been seized from the possession of the petitioner while he along with others were transporting the same in two vehicles, in view of the bar under section 37 of the N.D.P.S. Act, the petitioner is not entitled to be released on bail. She further submitted that petitioner is a man from the State of Haryana and once he is released on bail, it would be difficult to ensure his attendance at the time of trial in case he absconds.

On perusal of the bail order passed in the case of the co-accused Raghu in BLAPL No. 2430 of 2021, which was disposed of on 14.10.2022, it appears that similar contentions were raised by the same counsel relating to non-compliance of the mandatory provisions under sections 42 and 50 of the N.D.P.S. Act and the learned Single Judge after taking note of the citations placed by the learned counsel for both the parties, came to hold that the petitioner cannot take a ground that there was non-compliance of section 42 of the N.D.P.S. Act as on a bare reading of the F.I.R., it appears that the police party had intimated the fact to their superior officer over phone and therefore, non-compliance of section 42 involves factual aspect and hence, the same is a matter of trial. However, so far as section 50 of the N.D.P.S. Act is concerned, the learned Single Judge has been pleased to hold that upon careful scrutiny of the provision in section 50 of the N.D.P.S. Act and further keeping in view the analysis of law made by the Hon’ble Supreme Court and applying the same to the facts of the present case and considering the mandatory nature of the provision, on careful scrutiny of the F.I.R. as well as records produced, the Court was of the considered opinion that no opportunity as has been provided under section 50 of the N.D.P.S. Act was ever given to the petitioner in that case and therefore, on the basis of the materials available on record, the Court was constrained to hold that the provision prima facie contained in section 50 of the N.D.P.S. Act has not been complied with in the case though the Court further held that such finding is subject to a detail evidence to be laid during trial. Learned Single Judge further held that the bar contained in section 37 of the N.D.P.S. Act would not be strictly applicable to the facts of the case. It was further held that if prima facie from record/F.I.R., it can be established that sections 42 and 50 of the N.D.P.S. Act, which are mandatory in nature, have not been complied with, the Court considering the bail application can always use the same as ground to enlarge the petitioner on bail and in such event, the power contained in section 37 of the N.D.P.S. Act would not be attracted to the facts of the case. Accordingly, the learned Single Judge granted bail to the said co-accused with certain conditions.

In the bail application of the co-accused Rama Chandra Mali bearing BLAPL No.2571 of 2021, the learned Single Judge only considering that the petitioner is in judicial custody for one and half years and the trial is not likely to be commenced in the near future, directed him to be released on bail with certain terms and conditions.

Section 37 of the N.D.P.S. Act opens with a non-obstante clause. Non-obstante 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.

In the case of Supdt. Narcotics Control Bureau, Chennai -Vrs.- R. Paulsamy reported in (2000) 9 Supreme Court Cases 549, the Hon’ble Supreme Court held as follows:-

“6. In the light of Section 37 of the Act, no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections.”

In case of Union of India -Vrs.- Rattan Mallik @ Habul reported in (2009) 42 Orissa Criminal Reports (SC) 697, the Hon’ble Supreme Court held as follows:-

“13. It is plain from a bare reading of the non-obstante clause in the Section 37 of the N.D.P.S. Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the N.D.P.S. Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the N.D.P.S. Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. (Vide Union of India -Vrs.- Shiv Shanker Kesari : (2007) 7 Supreme Court Cases 798). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the N.D.P.S. Act.

We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the N.D.P.S. Act, the Court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the N.D.P.S. Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act 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.”

In the aforesaid case of Rattan Mallick (supra), Allahabad High Court granted bail to the appellant convicted under sections 27-A and 29 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years on each count and to pay a fine of rupees one lakh on each count with default stipulation, on the ground of his incarceration for three years and further holding that there was no chance of his appeal being heard within a period of seven years. The Hon’ble Supreme Court held that those circumstances may be relevant for grant of bail in the matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of section 37 of the N.D.P.S. Act. The Hon’ble Supreme Court further held that the provisions of the N.D.P.S. Act and more particularly section 37 of the N.D.P.S. Act were not brought to the notice of the learned Judge and therefore, the impugned order having been passed ignoring the mandatory requirements of section 37 of the N.D.P.S. Act was held to be not sustainable.

In case of Ratan Kumar Vishwas -Vrs.- State of Uttar Pradesh reported in (2009) 1 Supreme Court Cases 482, where the judgment of Allahabad High Court dismissing the application filed by the appellant for suspension of sentence and

grant of bail was challenged, it is held as follows:-

“18. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted.

x x x x x x x x x

The High Court has dealt with the factual position in great detail to conclude that the parameters of section 37 are not fulfilled to warrant grant of bail by suspension of sentence. We find no reason to interfere in the matter.”

In the case of Asim Kumar Das and another -Vrs.- State of Orissa reported in (2018) 69 Orissa Criminal Reports 688, this Court has held as follows :-

“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.”

In the case of State of H.P. -Vrs.- Pawan Kumar reported in (2005) 4 Supreme Court Cases 350, the Hon’ble Supreme Court held as follows:-

“11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required, They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act.

x x x x x x x x x

14....that the provisions of Section 50 will come

into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which (the accused) may be carrying.

x x x x x x x x x

“27...In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag which was being carried by the accused.”

Law is well settled that at the stage of consideration of bail application of an accused in custody, the following aspects are to be taken into account:-

(i) Prima facie satisfaction of the Court in support of the accusations;

(ii) Nature of accusation;

(ii) Evidence in support of accusations;

(iv) Gravity of the offence;

(v) Punishment provided for the offence;

(vi) Danger of the accused absconding or fleeing if released on bail;

(vii) Character/criminal history of the accused;

(viii) Behaviour of the accused;

(ix) Means, position and standing of the accused in the society;

(x) Likelihood of the offence being repeated;

(xi) Reasonable apprehension of the witnesses being tampered with;

(xii) Danger, of course, of justice being thwarted by grant of bail;

(xiii) Balance between the rights of the accused and the larger interest of the Society/State;

(xiv) Any other factor relevant and peculiar to the accused;

(xv) While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, but if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

Even though two of the co-accused persons have been granted bail by this Court, but law is well settled that parity cannot be the sole ground for grant of bail but it is one of the grounds for consideration of question of bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in

flagrant violation of well settled principle of law and the Judge ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis of claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. (Ref:- Raju Kumar Kushwa -Vrs.- State of Orissa reported in (2018) 69 Orissa Criminal Reports 725)

In the case of co-accused Ram Chandra Mali in BLAPL No.2571 of 2021, the mandatory provision under section 37 of the N.D.P.S. Act has not been taken into account while granting him bail. In the case of Raghu in BLAPL No. 2430 of 2021, bail has been granted on the ground of non-compliance of the provision under section 50 of the N.D.P.S. Act at the time of search and seizure, which is in flagrant violation of well settled principle of law as laid down by the Hon’ble Supreme Court in the case of Pawan Kumar (supra) that such compliance is not necessary in a case of this nature where contraband ganja of commercial quantity was found in plastic sacks in the vehicle. Thus, I am of the humble view that such bail orders cannot form the basis of claim of parity for the petitioner.

In view of the foregoing discussions, since the petitioner was found in the offending Toyota Corolla vehicle in which commercial quantity of ganja was being transported and the learned counsel for the appellant has failed to satisfy the rigours of section 37 of the N.D.P.S. Act, I am not inclined to release the petitioner on bail. The status report of the learned trial Court dated 28.11.2022 indicates that out of sixteen charge sheet witness, one witness has been examined. In view of the period of detention of the petitioner in judicial custody, the learned trial Court shall do well to expedite the trial.

Accordingly, the BLAPL stands dismissed.

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