Orissa High Court
Sumit Kumar vs State Of Odisha on 24 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL NO.10706 OF 2021
Sumit Kumar .... Petitioner
Mr. Shyam Manohar, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. Karunakar Das, ASC.
CORAM:
MR. JUSTICE D.DASH
ORDER
24.01.2022
Order No.
01. 1. This matter is taken up by video conferencing mode.
2. The Petitioner being in custody in connection with
Machhakund, Koraput P.S. Case No.81 of 2020 corresponding to
T.R. Case No.51 of 2020 on the file of learned Sessions Judge-
cum-Special Judge, Koraput, running for commission of offence
under Section-20(b)(ii)(C) of the IPC, has filed this application
under Section 439 of the Cr.P.C. for his release on bail.
3. Heard Mr. Shyam Manohar, learned Counsel for the
Petitioner and Mr. Karunakar Das, learned Addl. Standing Counsel.
I have gone through the materials placed.
4. The prosecution case is that the Petitioner being the driver
of the Truck bearing Registration No.HR-61A-5131, he was
involved in transportation of 350 Kgs. 400 Grams of ganja when at
the relevant time, the helper Rohtash Kumar and accused Vishal
Kumar were also sitting, who all hail from the State of Haryana.
5. The materials, as placed, reveal that on interception of the
vehicle in question, this Petitioner and two others were very much
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found in the vehicle and 350 Kgs. 400 Grams of ganja kept in 16
packets have been recovered from the Truck in course of seach
which have been seized.
6. Learned Counsel for the Petitioner submits that in view of
the non-compliance of the mandatory provision of section-50 of the
NDPS Act, the bar contained under section-37 of the NDPS Act
would not stand on the way of grant of bail to the Petitioner. In this
connection, he has relied upon the decision of the Hon'ble Apex
Court in case of Sk. Raju Alias Abdul Haque Alias Jagga Vrs. State
of West Bengal; (2018) 9 SCC 708. Relying on the paragraph-22 of
the judgment, he contends that here in the facts and circumstances
of the case, the non-compliance of mandatory provision of section-
50 of the Act is quite clear and thus in so far as the Petitioner is
concerned, he being an innocent driver in the truck having no
knowledge of the items loaded, is entitled to be released on bail on
such terms and conditions as deemed just and proper.
6. On a careful reading the cited decision, it is seen that the
same was a case of search of a bag held by the Accused/Appellant
as well as his trousers and in that factual settings, the Hon'ble Apex
Court has considered the said aspect and examined the matter
relating to compliance of mandatory provision of section-50 of the
Act in further saying that it was not only a case of search of the bag
held by the Accused but also of his persons and finally in that case,
the compliance of the mandatory provision of law has been
answered in the affirmative. The facts and circumstances of the
present case are completely different that here the recovery of
contraband ganja has been made being kept in 16 pockets loaded in
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the Truck wherein this Petitioner with two other Accused persons
were present and detained after interception.
8. In view of all these aforesaid; further keeping in view the
quantity of contraband ganja said to have been seized with other
surrounding circumstances as those emanate from the materials on
record; on the face of the bar contained in section 37 of the NDPS
Act, I am not inclined to grant bail to the Petitioner.
9. The BLAPL is accordingly dismissed.
10. As the restrictions due to resurgence of COVID-19
situation are continuing, learned Counsel for the parties may utilize
a printout of the order available in the High Court's website, at par
with certified copy, subject to attestation by the concerned
Advocate, in the manner prescribed vide Court's Notice No.4587
dated 25th March, 2020 as modified by Court's Notice No.4798
dated 15th April, 2021 and Court's Office order circulated vide
Memo Nos.514 and 515 dated 7th January, 2022.
(D. Dash)
Judge.
Narayan
