Orissa High Court
Udhab Digal vs State Of Odisha .... Opposite Party on 1 May, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.1768 of 2025
1. Udhab Digal .... Petitioners
2. Prakash Digal
3. Pandu Digal
4. Deba Kanhar
Mr. S. Dwibedi, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. K Lenka, ASC
ABLAPL No.1067 of 2025
Shyameswar Digal .... Petitioner
Mr. A.Tripathy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. K Lenka, ASC
ABLAPL No.1069 of 2025
Tapeswar Digal .... Petitioner
Mr. A. Tripathy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. K Lenka, ASC
Page 1 of 17
CORAM: JUSTICE V. NARASINGH
Date Of Hearing And Judgment :01.05.2025
V. Narasingh, J.
1. It is apt to note here that ABLAPL No.1067 and 1069 of 2025 are posted to 07.05.2025. And, since all the matters arise out of Gochhapada P.S. Case No.35 of 2020, they are heard together and disposed of by this common judgment on the consent of the parties.
2. Heard learned counsel for the Petitioners and learned counsel for the State.
3. The Petitioners are seeking pre-arrest bail in connection with C.T. Case No.35-A of 2020 pending in the Court of learned Special Judge, Phulbani, arising out of Gochhapada P.S. Case No.35 of 2020 for commission of offence punishable under Sections 20(b)(ii)C of the NDPS Act. The allegation against the Petitioners is that Page 2 of 17 they along with the co-accused who faced trial are involved in the transportation of contraband (Ganja) to the tune of 2020kgs.
4. It is submitted by the learned counsel Mr. Tripathy and Mr. Dubey for their respective clients that the implication of the Petitioners are on account of co-accused statement and since the co- accused who have since been acquitted by judgment dated 13.05.2024 by the Special Judge, Kandhamal, Phulbani, in Crl. Trial No.35 of 2020, inter alia, on the ground of violation of the mandatory provisions of Sections 42(2) as well as 57 of NDPS Act, the Petitioners, who do not have any criminal proclivity, may be protected by pre- arrest bail.
4A. For convenience of ready reference Sections 42(2) and 57 of NDPS Act are extracted hereunder;
Page 3 of 17
xxx xxx xxx
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) xxx (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
xxx xxx xxx
57. Report of arrest and seizure.-- Whenever any person makes any arrest or seizure under this Act, he shall, within forty- eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
xxx xxx xxx"
5. In this context, learned counsel for the Petitioners place on record the copy of the judgment of acquittal of the co-accused. The finding regarding the violation of the mandatory provisions as stated by the learned Special Judge is extracted hereunder:
Page 4 of 17
"xxx xxx xxx Such aspects discussed here-in-above has resulted in allowing this Court to come to a conclusion that the mandatory provision about compliance of Section 42 (2) of the NDPS Act has not been proved by the prosecution to the hilt.
xxx xxx xxx" 5A. So far as violation of the Section 57 of the
NDPS Act is concerned, the learned Special Judge after quoting the said section observed thus;
"xxx xxx xxx From a bare reading, it is abundantly clear that it is the Officer (person) who makes any arrest or seizure under the Act shall have to make a full report of all the particulars of such arrest or seizure to his immediate official superior. Therefore, such a report complying the requirements of Section 57 of the Act had to be submitted by P.W.10, the informant and not by the I.O., P.W.11 only. Therefore, the requirement of Section 57 of the Act has not been complied with.
xxx xxx xxx"
Page 5 of 17
6. Referring to such finding of the learned Special Judge, it is submitted by the learned counsel for the Petitioners that in view of the same, since the seizure in question is a joint seizure, custodial interrogation of the Petitioners is not warranted and they ought not to be remanded to custody.
7. Such submission is opposed by the learned counsel for the State Mr. Lenka, inter alia, on the ground that the charge sheet is filed on 26.04.2022, under Sections 20(b)(ii)C and 29 of NDPS Act. The Petitioners have been cited as accused and their status have been shown as absconders and so far as the trial is concerned it is trite that the evidence on record is qua the accused, who faced trial and as such, the same ought not to ennure to the benefit of the accused like the Petitioners who are absconders. Hence, seeks dismissal of the ABLAPL. He also relies on Page 6 of 17 the bars under Section 37(1)(b)(ii) of the NDPS Act to resist the prayer of the Petitioners.
8. In the recent pronouncement of the Apex Court in the case of Satender Kumar Antil Vrs. Central Bureau of Investigation and another, reported in, 2023 SCC Online SC 452, adopting the course of continuing Mandamus it has been clarified that the principles as set out in the case of Satender Kumar Antil Vrs. Central Bureau of Investigation and another, reported in, (2022) 10 SCC 51 shall apply in equal measure to application for anticipatory bail. The said finding of the Apex Court is extracted hereunder for convenience of ready reference:
"xxx xxx xxx We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail.
xxx xxx xxx"
Page 7 of 17
9. The submissions of the learned counsel for the Petitioners have to be evaluated on the basis of clarificatory observation of the Apex Court extracted hereinabove.
10. The observation of the learned Special Judge on the basis of evidence on record regarding the perfunctory manner in which investigation has been done to establish the prima facie complicity of the Petitioners cannot be lost sight of. The same has a bearing in the case at hand in evaluating the stand of the Petitioners, considering the background relating to the Petitioners' involvement.
11. It is no doubt true that so far as the anticipatory bail is concerned, the same is an exceptional remedy and cannot be claimed as a matter of right.
Page 8 of 17
12. There is no cavil about the proposition of law as stated by the learned Additional Standing Counsel that the evidence on record is in respect of the accused persons who faced trial and that ordinarily an order of anticipatory bail which is admittedly an exceptional remedy ought not to be entertained in case of the co-accused more so warrantees.
12A. But as has been clarified by the Apex Court in the recent case of Serious Fraud Investigation Office Vrs. Aditya Sarda, reported in, 2025 SCC Online SC 764 that there cannot be any strait jacket formula for appreciation of a anticipatory bail and each case has to be dealt with taking into account the peculiar facts and circumstances of the case at hand.
For convenience of ready reference the relevant portion of the judgment is quoted hereunder;
Page 9 of 17
"xxx xxx xxx There cannot be a strait jacket formula, as sought to be submitted by the learned advocates for the Respondents that the Court must first issue a summons even in case of a warrant case, irrespective of the gravity or seriousness of the offence. As well settled by now, whether the attendance of the accused can be best secured by issuing a bailable warrant or non- bailable warrant, would be a matter, which entirely rests at the discretion of the concerned Court.
xxx xxx xxx"
13. This Court is conscious of the fact that filing of the charge sheet shows that there is a prima facie case, as has been held by the Apex Court in the case of State by the Inspector of Police Vs. B. Ramu, reported in 2024 SCC Online SC 4073 as well as in the case of State of Madhya Pradesh vs. Kajad, reported in (2001) 7 SCC 673 stating no uncertain terms in an Page 10 of 17 accusation in a NDPS Case, grant of bail is an exception, as opposed to the general doctrine of bail being the rule in view of the bar under Section 37(1)(b)(ii) of the NDPS Act. For convenience of ready reference Section 37(1)(b)(ii) of the NDPS Act is extracted here under;
"xxx xxx xxx
37. Offences to be cognizable and non- bailable. -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) xxx
(b) no person accused of an offence
punishable for 1[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there Page 11 of 17 are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
xxx xxx xxx"
14. But, this Court cannot be oblivious of the observations of learned Special Judge on the basis of evidence on record, that there has been a violation of mandatory provisions of the NDPS Act and coupled with the same, the learned Special Judge has also further opined regarding the conduct of the Investigating Agency in not taking any steps to nab the present accused persons, which runs thus;
"xxx xxx xxx Furthermore, a disturbing feature in the investigation has come to light in course of trial as no step was taken by the Investigating Officer and the prosecuting agency to place any report as against 12 other persons who were alleged to have managed to escape from the spot. Though the names of those persons appear in the Page 12 of 17 F.I.R. marked as Ext.P-21 and the Investigating Officer presented the Final Form keeping the investigation open, but for the reasons best known to the Investigating Officer no step in respect of those alleged persons alleged to have been escaped from the spot has been taken for more than 03 years and 06 months leading to a reasonable doubt as regards any such assemblage of 14 persons at any such spot and the recovery of contraband articles from the spot.
From the evidences discussed in the foregoing paragraphs, this Court entertains a reasonable doubt as to whether there was any detection of any contraband article, i.e. ganja made by the police officers at the spot and so also about the factum of detection and seizure of contraband ganja from the possession of the accused persons vide Seizure List Ext.P-7/3.
xxx xxx xxx"
15. In the backdrop of such finding of the learned Trial Court, this Court is persuaded to hold Page 13 of 17 keeping in view the judgment of the Apex Court in the case of Tofan Singh vrs. State of Tamil Nadu, reported in (2021) 4 SCC 1 as well as the case of the State of Haryana vrs. Samarth Kumar reported in 2022 SCC Online SC 2087 and in the light of the latest dictum of the Apex Court in the case of Satender Kumar Antil Vrs. Central Bureau of Investigation and another, reported in, 2023 SCC Online SC 452 clarifying that the principles which weigh with the Court while considering the application of accused in custody shall apply in equal measure in the case of anticipatory bail.
16. Given the circumstances under which the Petitioners have been cited as accused solely basing on co-accused statement and violations of mandatory provisions of section 42(2) and 57 of NDPS Act in the context of seizure being a joint one, this Court is persuaded to hold that merely Page 14 of 17 because warrants have been issued in the light of the manner in which the investigation has been done as noted by the learned Special Judge, the Petitioners are entitled to be released on pre-arrest bail.
16A. It is thus directed that on surrendering in the case at hand, the Petitioners shall be released on bail by the learned Court in seisin fixing such terms and conditions, deemed just and proper, subject to verification of criminal antecedent of any nature.
17. Before parting with the case, this Court feels it obligatory to address the concern expressed at the bar regarding the hardships faced by the accused persons because of the manner of submission of the criminal antecedents in the Jurisdictional Court.
17A. It is stated that because of non-furnishing of such criminal antecedents, the accused are Page 15 of 17 facing difficulties while pursuing their motions before the learned Court in seisin in terms of the order passed by this Court where it is stipulated that the release shall be subject to verification of criminal antecedents.
18. Taking note of such grievance across the Board, this Court is persuaded to direct that details of the criminal antecedents shall be furnished to the learned Court in seisin, wherever it is so directed, within three days from the date of such order/ judgment.
And, such antecedents shall be simultaneously shared with the DIB of the
concerned police district so that correct details of the antecedents and the status thereof, can be brought to the notice of the court, which in turn would ensure that no prejudice is caused to either the prosecution or the accused. Page 16 of 17
Learned counsel for the State is requested to impart necessary instruction in this regard.
19. Copy of this judgment be communicated to the Principal Secretary (Home), State of Odisha who is requested to issue necessary directions relating to furnishing of details of criminal antecedent in tune with the direction as contained in paragraph-18 above, to the UPDs and the Police Districts through the concerned D.C.Ps and S.Ps, in the interest of ensuring transparency in dispensation of justice in criminal cases. Registry is requested to do the needful.
20. Accordingly, the ABLAPL stands disposed of.
(V. NARASINGH) Judge Orissa High Court, Cuttack, Dated the 1st May, 2025/Soumya Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Reason: Authentication Location: High Court of Orissa Date: 03-May-2025 19:45:37 Page 17 of 17