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2017 DIGILAW 1087 (ORI)

Sudarsan Nanda v. State of Orissa

2017-09-20

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Soura Chandra Mohapatra, learned counsel appearing for the petitioner and Mr. Arupananda Das, learned Addl. Government Advocate appearing for the State. 2. This is an application under Section 439 of Cr.P.C. for grant of bail to the petitioner Sudarsan Nanda in connection with Special G.R. Case No.157 of 2016, arising out of P.R. Case No.177 of 2016-17 of S.I. of Excise, E.I. & E.B., Unit-I, Cuttack pending in the Court of learned Special Judge, Puri for commission of offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’). 3. The petitioner moved an application for bail before the learned Special Judge, Puri which was rejected on 10.05.2017. 4. It is the prosecution case that on 07.11.2016 the staff of E.I. & E.B., Unit-I, Cuttack seized two numbers of white plastic jerry bags each containing 20 kgs. of ganja i.e. 40 kgs. of ganja in total and 100 numbers of gunny bags each containing 40 kgs. of bhang i.e. 40 quintals of Bhang in total in village Khatua Bramhapur under Pipili police station from the possession of the petitioner and co-accused Smrutiranjan Pani. 5. It is contended by the learned counsel for the petitioner that during course of investigation, two sets of samples from each of the 102 seized bags were collected and one set of the collected samples was forwarded by the I.O. to the Excise Divisional Laboratory, Central Division, Cuttack for chemical examination and on chemical analysis, it was found that the samples were containing ganja. The petitioner disputed the chemical examination report with regard to the samples collected i.e. 1/A to 100/A as those were stated to be Bhang by the I.O. while submitting the P.R. The petitioner made a prayer before the learned Trial Court to draw the sample again from each of seized bags containing contraband articles and to send the same to the Director, Testing Laboratory, Orissa for re-testing as according to him the chemical examination report has been prepared in a mechanical manner and Bhang was reported to be ganja. Since the learned Trial Court rejected the petition filed by the petitioner, the petitioner approached this Court in Criminal Revision No.103 of 2017 which was disposed of on 06.04.2017 and direction was given to the learned Trial Court to send the other representative samples i.e. 1/B to 100/B for chemical examination to the State Forensic Science Laboratory, Bhubaneswar. By virtue of the said order, the samples marked as 1/B to 100/B were re-tested in the S.F.S.L., Bhubaneswar and the chemical examiner in its report dated 26.04.2017 indicated that as a result of physical, chemical and microscopic examination, the exhibits marked as 1/B to 100/B were found to contain fragmented leaves (along with some seeds) of cannabis plant (Bhang). It is further contended that in view of the anomalies in the chemical examination report of Excise Divisional Laboratory, Central Division, Cuttack vis-a-vis S.F.S.L., Bhubaneswar, the finding of the two other sample packets to be ganja, cannot be accepted. It is contended that even if for the sake of argument, it is taken that two white colour plastic jerry bags of ganja were recovered and each of the accused possessed one such jerry bag having 20 kgs. of ganja, bar under section 37 of the N.D.P.S. Act for grant of bail would not be applicable inasmuch as such quantity would not come within the definition of ‘commercial quantity’ as defined under section 2(viia) of the N.D.P.S. Act. He relied upon the decision of this Court in the case of Anil Kumar Dash -Vrs.-State of Orissa reported in (2015) 62 Orissa Criminal Reports 459. It is further contended that the house in question was an abandoned one which stands recorded in the name of one Janardana Nanda who was dead as per the report of R.I., Nuasasan and after his death, his legal heirs (six sons and two daughters) including the father of the petitioner are the co-owners of the house and the petitioner was having no other criminal antecedents and therefore, taking into account the period of detention of the petitioner in judicial custody since 07.11.2016, the bail application may be favourably considered. Learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in case of Rajesh Jagdamba Avasthi -Vrs.-State of Goa reported in A.I.R. 2005 Supreme Court 1389 and a decision of the Allahabad High Court in case of Sanjay Kumar Verma -Vrs.-State of U.P. reported in 2006 Criminal Law Journal 1426. 6. Learned counsel for the State on the other hand opposed the prayer for bail and contended that the contents of the two white colour plastic jerry bags was found to be ganja on chemical examination by the Asst. Chemical Examiner, Excise Divisional Laboratory, Central Division, Cuttack. Though the petitioner challenged the finding of the Asst. Chemical Examiner in respect of the samples collected from the 100 gunny bags which were marked as 1/A to 100/A but he has not challenged the findings in respect of the samples taken from the white colour plastic jerry bags and therefore, the petitioner has accepted the finding of the Asst. Chemical Examiner to be ganja. He further contended that the hypothetical argument that the finding of the Asst. Chemical Examiner in respect of samples taken from the white colour plastic jerry bags cannot be accepted, does not merit consideration and should be out right rejected. He further contended that the petitioner and the co-accused Smrutiranjan Pani were found stacking the bags in the spot house and therefore, each of them can be said to be possessing 40 kgs. of ganja in two bags and not 20 kgs. of ganja by each of the accused in one bag. It is further contended that even though the spot house was not recorded in the name of the petitioner but possession of the house in question with the petitioner and the co-accused is an important criteria for such offence and therefore, without overcoming the hurdle under section 37 of the N.D.P.S. Act since the total quantity of ganja seized comes within ‘commercial quantity’, the petitioner cannot be granted bail. 7. 7. In case of Rajesh Jagdamba Avasthi -Vrs.-State of Goa reported in A.I.R. 2005 Supreme Court 1389, since the weight of the substance sealed in two envelopes was found to be different from the weight of the substance received by the laboratory, it was held that there was only one search and seizure and whatever was recovered from the appellant was packed in two envelopes and the credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by the Junior Scientific Officer (P.W.1) was less than the quantity sealed and sent to him. The question was not how much was seized but whether there was an actual seizure and whether what was seized was really sent for chemical analysis to P.W.1. The prosecution has not been able to explain this discrepancy and therefore, it renders the case of the prosecution doubtful. 8. The factual aspect of the present case is completely different from the case of Rajesh Jagdamba Avasthi (supra). There is no dispute regarding the weight of the contraband articles seized, weight of sample prepared from such contraband articles and the same weight of sample was received by the Chemical Examiner. The dispute is relating to the nature of contraband articles found from the two white colour plastic jerry bags. Since so far as the quantity of articles seized from the two white colour plastic jerry bags is not disputed and the finding of the Chemical Examiner in respect of the samples extracted from such plastic jerry bags has not been challenged by making a prayer for re-testing as was done in respect of samples collected from 100 gunny bags, the hypothetical argument at the stage of bail challenging the finding of the chemical examiner relating to the samples extracted from two white colour plastic jerry bags cannot be accepted. It is true that at the first instance when the prayer was made by the petitioner for the re-sampling of the contraband articles in the 100 gunny bags, there was no extremely exceptional circumstances available as laid down in the case of Thana Singh -Vrs.-Central Bureau of Narcotics reported in (2013) 54 Orissa Criminal Reports (S.C.) 841 for making a prayer for re-testing the representative samples collected from two white colour plastic jerry bags but after the result of S.F.S.L., Bhubaneswar came out giving a contradictory finding to the analysis conducted by the Asst. Chemical Examiner, Central Excise Divisional Laboratory in respect of the 100 sample packets marked as 1/B to 100/B, the petitioner could have prayed for the re-testing of the representative samples collected from two white colour plastic jerry bags making out a compelling circumstance for re-testing and to condone the delay in making the prayer in view of the peculiar situation. The same having not been done within the stipulated period of the receipt of the test report from the S.F.S.L., Bhubaneswar, the findings of the chemical examiner in respect of the samples extracted from two white colour plastic jerry bags cannot be challenged at this stage in a bail application and it would also not be proper to give any finding in that respect. The learned Trial Court is free to adjudicate the same at the appropriate stage. 9. In the case of Sanjay Kumar Verma -Vrs.-State of U.P. reported in 2006 Criminal Law Journal 1426, it was held that since according to the prosecution version, recovered contraband was smack (brown sugar) but according to Public Analyst Report, it was heroin, the High Court of Allahabad granted bail to the accused. However, in the case in hand since not only the prosecution version in respect of the contraband articles seized from the two white colour plastic jerry bags is ganja but the same is also confirmed by the Asst. Chemical Examiner, Central Excise Divisional Laboratory on chemical analysis and therefore, there are no discrepancies in that respect. 10. Similarly the ratio laid down in the case of Anil Kumar Dash -Vrs.-State of Orissa reported in (2015) 62 Orissa Criminal Reports 45 is not applicable in the present case inasmuch as commercial quantity of ganja has been seized in this case. 11. 10. Similarly the ratio laid down in the case of Anil Kumar Dash -Vrs.-State of Orissa reported in (2015) 62 Orissa Criminal Reports 45 is not applicable in the present case inasmuch as commercial quantity of ganja has been seized in this case. 11. According to the prosecution case, the petitioner and the co-accused Smrutiranjan Pani were found stacking the bags in the spot room. Prima facie it appears that both of them were in possession of all the bags found in that room. Even if after the death of Janardana Nanda, the recorded tenant of the house, as per the report of the R.I., Nuasasan, his legal heirs (six sons and two daughters) including the father of the petitioner are the co-owners of the house but the same cannot be a ground for grant of bail to the petitioner. Even if the finding of the S.F.S.L., Bhubaneswar in respect of Exts.1/B to 100/B contradicts the finding of the Asst. Chemical Examiner, Central Excise Divisional Laboratory but for the commercial quantity of ganja found in the two white colour plastic jerry bags, the bar under section 37 of the N.D.P.S. Act is applicable. Before granting bail on merits for such offence, the limitations on granting of bail specified in clause (b) of sub-section (1) of section 37 of the N.D.P.S. Act are required to be considered. Since the learned counsel for the petitioner has failed to satisfy on the basis of factual position to conclude that the restrictions under section 37 of the N.D.P.S. Act are fulfilled to warrant grant of bail, considering the submissions made by the learned counsels for the respective parties, prima facie material available on record to show that the petitioner was in possession of commercial quantity of ganja, the nature and gravity of the accusation against the petitioner and taking into account the punishment prescribed for such offence, I am not inclined to release the petitioner on bail. 12. The observation made while disposing of this bail application relates to the materials collected during course of investigation and the findings recorded herein are for the purposes of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of the case. 12. The observation made while disposing of this bail application relates to the materials collected during course of investigation and the findings recorded herein are for the purposes of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of the case. The learned Trial Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order. 13. Accordingly, the BLAPL application stands rejected. Urgent certified copy of this order be granted on proper application.