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2013 DIGILAW 132 (ORI)

Siba Prasad Kanhar v. State of Odisha

2013-05-02

R.DASH

body2013
ORDER Heard learned counsel for the petitioner and learned counsel for the State on the petition under Section 439 Cr. P.C. The petitioner, is alleged to have committed offences under Sections 8 and 20(b)(ii)(c) of the N.D.P.S. Act in 2(a) C.C. No.10 of 2011 (N) arising out of P.R. No. 15 of 2011-12 pending in the Court of the learned Sessions Judge-cum-Special Judge, Berhampur. On behalf of the petitioner, it is submitted that since one of the co-accused has already been released on bail' under order passed in BLAPL No. 29544 of 2012, the petitioner, who stands on the same footing, should also be released on bail. As commercial quantity of 'Ganja' is involved in this case; it is submitted by the learned counsel for the petitioner that Section 37 of the N.D.P.S. Act will not be a bar to the case in hand inasmuch as there is clear violation of Section 50 of the N.D.P.S. Act. On behalf of the State, it is submitted that since commercial quantity of 'Ganja' has been seized from the possession of the petitioner, Section 37 of the N.D.P.S. Act is applicable, with further submission that the petitioner's earlier two bail petitions having been dismissed as being withdrawn/not pressed, the present petition, without there being any change of circumstances, ought to be rejected. It is true that co-accused Dillip Sahu is directed to be released on bail vide order dated 14.12.2012 passed by this Court in BLAPL No. 29544 of 2012. But merely on the ground of parity, the present petitioner cannot be released on bail unless and until this Court is satisfied that the restrictions placed by Sub-clause (b) of Sub-section (1) of Section 37 of the N.D.P.S. Act are not applicable as against the present petitioner. Before granting the prayer for bail, this Court is to record its satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. As per the prosecution, the petitioner and other co-accused persons were the occupants of an auto rickshaw loaded with five numbers of plastic bags found to have contained 161 Kgs. of Ganja. Therefore, at this stage, it cannot be said that there are no reasonable grounds for believing the petitioner to be innocent or not guilty of the alleged offence. As per the prosecution, the petitioner and other co-accused persons were the occupants of an auto rickshaw loaded with five numbers of plastic bags found to have contained 161 Kgs. of Ganja. Therefore, at this stage, it cannot be said that there are no reasonable grounds for believing the petitioner to be innocent or not guilty of the alleged offence. As regards the submission that there is non-compliance of the mandatory provisions contained in Section 50 of the N.D.P.S. Act, in the facts and circumstances as narrated above, the provision of Section 50 of the Act is not applicable inasmuch as the recovery was not made from the person of the petitioner. Therefore, the decisions cited by the learned counsel for the petitioner in the case of Bidyadhar Dolai vs. The State, reported in 1993 Cri. L.J. 260 (Orissa High Court) and in the case of Dadan Singh vs. State of U.P., reported in 1993 Cri. L.J. 1785 (Allahabad High Court) are not applicable to the present case. However, it is relevant to mention the following observations made by the Hon'ble Supreme Court in the case of Superintendent, Narcotics Central Bureau, Chennai vs. R. Paulsamy, reported in AIR 2000 Supreme Court 3661: "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 Sec. 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 of the formalities mentioned in those two sections." In the facts and circumstances, the petitioner's prayer for bail is rejected, The BLAPL is accordingly dismissed. BLAPL dismissed.