Orissa High Court

Dinesh Biswas @ Dinesh vs State Of Odisha ... Opposite Party on 24 April, 2025

Author: G. Satapathy

Bench: G. Satapathy

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                  BLAPL No.13059 of 2024

      (In the matter of application under Section 483 of
      Bharatiya Nagarik Suraksha Sanhita, 2023).

      Dinesh Biswas @ Dinesh    ...                                 Petitioner
      Kumar
                           -versus-

      State of Odisha                        ...                Opposite Party

      For Petitioner                :                    Mr. P.K. Maharaj,
                                                                 Advocate

      For Opposite Party            :        Mr. R.B. Mishra, Addl. PP

          CORAM:
                JUSTICE G. SATAPATHY

  F       DATE OF HEARING & JUDGMENT:24.04.2025(ORAL)

G. Satapathy, J.

1. This matter is taken up through Hybrid

Arrangement (Virtual /Physical Mode).

2. This is a bail application U/S.483 of BNSS by

the petitioner for grant of bail in connection with

Umerkote P.S. Case No.212 of 2020 corresponding to

Special T.R. Case No.32 of 2020 pending in the Court

of learned Addl. District & Sessions Judge, Umerkote

in the district of Nabarangpur for commission of

offences punishable under Section 20(b)(ii)(C)/29 of

NDPS Act, on the main allegation of possessing

105Kgs 676Grams of Contraband Ganja.

3. Heard, Mr. Pranay Kumar Maharaj, learned

counsel appearing for the petitioner and Mr. R.B.

Mishra, learned Addl. Public Prosecutor and perused

the record.

4. It is brought to the notice of the Court that

the present Petitioner has been implicated in following

three cases of similar nature:

(i)Umerkote PS Case Nos.209 of 2020 for offences

punishable U/Ss. 20(b)(ii)(C)/29 of NDPS Act.

(ii) 8 of 2021 for commission of offence punishable

U/Ss. 20(b)(ii)(C) of NDPS Act.

(iii) 82 of 2021 for commission of offence punishable

U/Ss. 20(b)(ii)(C)/29 of NDPS Act.

Grant or refusal of bail in NDPS case involving

commercial quantity is governed by Section 37 of

NDPS Act and 37(1)(b) of NDPS Act prescribes that no

person accused of an offence punishable for offences

under sec. 19 or Sec.24 or Sec. 27-A and also for

offences involving commercial quantity shall be

released on bail or on his own bond unless the public

prosecutor has been given an opportunity to oppose

the application for such release and where such public

prosecutor opposes the application, the Court is

satisfied that there are reasonable grounds for

believing that the accused is not guilty of the offence

and that he is unlikely to commit offence while on bail.

True it is that in some of the cases, the Petitioner has

already been granted bail, but the involvement of the

petitioner in three other similar cases gives rise to

reason or apprehension in the mind of the Court to

consider that there is no ground to believe that the

accused is unlikely to commit offence while on bail. In

addition, there is allegation against the petitioner for

possessing commercial quantity of Contraband Ganja

and the trial is going on with examination of 19 out of

30 charge sheeted witnesses and the trial is likely to

be concluded soon.

5. Adverting to the plea of petitioner for grant of

bail on the principle of parity, this Court considers it

apt to refer to the decision in Satpal Singh vrs.

State of Punjab; (2018) 13 SCC 813, wherein the

pre-arrest bail application of one accused namely

Satpal Singh was turned down by one of the Bench of

High Court, whereas the pre-arrest bail application of

co-accused Beant Singh and Gurwinder Singh had

been allowed by another Bench of the said High Court,

but after noticing the provision of Sec. 37 of NDPS Act,

the Apex Court while upholding the view of the learned

Judge declining to give protection to accused Satpal

Singh for not recording satisfaction of the conditions

U/S. 37 of NDPS Act cancelled the pre-arrest bail

granted by the High Court to co-accused Beant Singh

and Gurwinder Singh for not recording satisfaction of

the conditions U/S. 37 of the NDPS Act which is sine

qua non for granting bail to the accused for offences

involving commercial quantity. It is, therefore, very

clear from the precedent as laid down by Apex Court

that the order granting bail must demonstrate the

conditions of Section 37 of NDPS Act, but if the order

granting bail to co-accused does not discuss/

demonstrate about the satisfaction of the conditions of

Section 37 of NDPS Act, it would not have any binding

precedent for grant of bail to co-accused. In

Satpal(supra), the Apex Court in Paragraph-14 of

the decision has held as under:-

"xx xx. The quantity is reportedly commercial. In the facts and circumstance of the case, the High Court could not have and should not have passed the order U/S. 438 or 439 of CrPC without reference to Sec. 37 of NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant bail. Such a satisfaction having not been entered, the order dated 21.09.2007 (granting pre-arrest bail to accused person) is only to be set aside and we do so."

6. In State of Kerala and others vrs. Rajesh

and others;(2020) 12 SCC 122, while setting aside

the order granting bail to the accused persons for want

of satisfaction of the conditions U/S. 37 of NDPS Act,

the Apex Court has made it clear that the jurisdiction

of the Court to grant bail in a case like this is

circumscribed by the provision of Sec. 37 of NDPS Act

and it can be granted in a case there are reasonable

grounds for believing that the accused is not guilty of

such offence and that he is not likely to commit any

offence while on bail which is the mandate of

legislature that is required to be followed. In setting

aside the bail order of the accused person in

Rajesh(supra), the Apex Court has referred to the

past criminal antecedents of the accused as a ground

for not being able to record the satisfaction of

condition of Sec. 37 of NDPS Act.

7. In a recent decision, the Apex Court in

Narcotic Control Bureau Vrs. Kashif;(2024) SCC

Online SC 3848, the Apex Court in Paragraph No.8

has been pleased to hold as under:

COMPLIANCE OF THE MANDATE UNDER SECTION 37:

"8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear

in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature.

The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions.

Further, in Kashif(supra) the Apex Court has

summarized its conclusion in Paragraph No. 39 and

some of such conclusions which are relevant for the

purpose of adjudication of this bail application are

extracted as under:-

"39.(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non

is known for granting bail to the accused involved in the offences under the NDPS Act.

xx xx xxx xxx xxx

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

8. From the aforesaid facts and circumstance and

following the law laid down by the Apex Court in the

decisions referred to above and applying the principles

as culled out by the Apex Court in these decisions to

the facts of this case and the Petitioner having been

involved in three cases of similar nature, apart from

this case cannot be said to have satisfied the

conditions of Sec. 37 of NDPS Act. In the wake of

aforesaid, especially when the Petitioner is found to

have not satisfied the mandatory conditions of Sec. 37

of NDPS Act, this Court is not inclined to grant bail to

the Petitioner.