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Orissa High Court · body

2009 DIGILAW 20 (ORI)

Nurbanu Bibi v. State of Orissa

2009-01-08

B.K.PATEL

body2009
ORDER 08.01.2009 — Heard learned counsel for the petitioner and learned counsel for the State. In this application under Section 439 Cr.P.C. the petitioner has renewed her prayer to be released on bail in Special Case No.46 of 2007 of the Court of learned Special Judge-cum-Sessions Judge, Balasore arising out of Balasore Town P.S. Case No.529(4) of 2007. The petitioner stands charge-sheeted for commission of offence under Section 21 of the N.D.P.S. Act. Earlier application for bail preferred by the petitioner in BLAPL No.4017 of 2008 was rejected upon reference to conditions contained under Section 37 of the N.D.P.S. Act. Referring to chemical examination report, it was submitted by the learned counsel for the petitioner that sample quantity weighing one gram out of the allegedly seized total quantity of 22.060 grams con¬traband was found to contain Diacetylmorphine i.e. Heroin and the strength of the same was found to be 5.2% only. On the basis of such submission it was argued that at the worst the petitioner may be accused to be in possession of approximately 1.15 grams of Diacetylmorphine which is much below prescribed commercial quan¬tity. As per the notification 5 grams of Diacetylmorphine i.e. Heroin amounts to small quantity. It was contended that in view of the chemical examination report, the bar contained under Section 37 of the N.D.P.S. Act is not attracted while dealing with the petitioner’s bail application. It was further submitted that the petitioner is an elderly woman who is languishing in jail for more than a year. Investigation having already been completed there is no scope for tampering with evidence. Also there is no apprehension from any quarters that the petitioner may abscond, if released on bail nor it is alleged that the petitioner is involved in any case of similar nature. Having heard from both sides, the submission made on behalf of the petitioner regarding non-applicability of provision under Section 37 of the N.D.P.S. Act does not appear to be unfounded. Therefore, taking into account the peculiar facts and circumstances of the case as well as period of under trial deten¬tion already undergone by the petitioner, who is a woman, it is found just to admit her to bail. Therefore, taking into account the peculiar facts and circumstances of the case as well as period of under trial deten¬tion already undergone by the petitioner, who is a woman, it is found just to admit her to bail. Accordingly, it is directed that the petitioner shall be released on bail by the learned Special Judge-cum-Sessions Judge, Balasore in connection with the aforesaid case on such terms and conditions as the learned Spe¬cial Judge-cum-Sessions Judge deems just and proper. The BLAPL is accordingly disposed of. Urgent certified copy of this order be granted on proper application. BLAPL disposed of.