Orissa High Court
Abhiram Bibar vs State Of Odisha .... Opposite Party on 25 August, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.7470 of 2025
Abhiram Bibar .... Petitioner
Dr. S. Ranjit, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. N. Das, ASC
CORAM:
JUSTICE V. NARASINGH
DATE OF FINAL HEARING : 22.08.2025
DATE OF JUDGMENT: 25.08.2025
V. Narasingh, J.
1. Heard learned counsel for the Petitioner
and learned counsel for the State.
2. The Petitioner is seeking pre-arrest bail in
connection with T.R. No.41 of 2021 pending in the
Court of learned Addl. Sessions Judge-cum-Special
Judge, Gunupur, Rayagada, arising out of
Chandrapur P.S. Case No.08 of 2021 for
commission of offences punishable under Sections
20(b)(ii)C, 25 and 29 of the NDPS Act. The
allegation against the Petitioner is that he along
with the co-accused who faced trial are involved in
the transportation of contraband (Ganja) to the
tune of 540kgs.
3. It is submitted by the learned counsel
referring to the charge sheet which is on record
that the basis of implication is on account of the
co-accused statement and the co-accused who
were taken into custody and faced trial have since
been acquitted by the judgment dated 30.10.2024
in TR No.41 of 2021 by the learned Addl. Sessions
Judge-cum-Special Judge, Gunupur, Rayagada.
And it is further stated that the acquittal of the co-
accused was on account of violation of mandatory
statutory provision as contained in Section 42(1)1
42. Power of entry, search, seizure and arrest without warrant or authorisation.--(l) Any such
officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intellegence or any other department of the Central Government
including para-military forces or armed forces as is empowered in this behalf by general or special order
by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or any other department of a State Government as
is empowered in this behalf by general or special order of the State Government, if he has reason to
believe from personal knowledge or information given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence
punishable under this Act has been committed or any document or other article which may furnish
as well as Section 50 of the NDPS Act2 and for
non-production of the contraband article before the
Court in "safe custody".
It is further submitted that the co-accused
Karuna Hial, not apprehended from the spot, is
similarly circumstanced with the Petitioner and has
been acquitted.
Referring to the above and the judgment
of the Apex Court in the case of Tofan Singh Vrs.
The State of Tamil Nadu3, the Petitioner seeks
pre-arrest bail.
evidence of the commission of such offence or any illegally acquired property or any document or other
article which may furnish evidence of holding any illegally acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any
door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or conveyance which he has reason to believe to
be liable to confiscation under this Act and any document or other article which he has reason to believe
may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of
holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter
VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason
to believe to have committed any offence punishable under this Act:
50. Conditions under which search of persons shall be conducted.--(1) When any officer duly
authorised under section 42 is about to search any person under the provisions of section 41, section 42 or
section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If
such requisition is made, the officer may detain the person until he can bring him before the Gazetted
Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before
whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge
the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone
excepting a female.
AIR 2020 SC 5592
4. Learned Public Prosecutor Mr. Das opposes
the prayer for pre-arrest bail referring to the
provisions as contained in the Section 37(1)(b)(ii)4
of the NDPS Act as well as the judgment of the
Apex Court in the case of State by the Inspector
of Police Vs. B. Ramu5.
5. It is further submitted by the learned Public
Prosecutor that the evidence in respect of the
accused in custody cannot ennure to the benefit of
the Petitioner who has been cited as an absconder,
though it is not disputed that the basis of
implication of the Petitioner is on account of the
co-accused statement. He also opposes the prayer
for pre-arrest bail referring to Paragraph 9 of the
bail application, wherein it is stated that the
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 3[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)xxx
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to
the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force on granting of bail.
2024 SCC Online SC 4073
Petitioner "has six criminal antecedents including
this case".
6. The rival contentions have to be examined in
the light of the rigors of Section 37(1)(b)(ii) of the
NDPS Act and that in case of an accusation under
the NDPS Act, jail is rule and bail is the
exception.[Ref: State of Madhya Pradesh vs.
Kajad]6.
7. It is trite that the evidence on record qua
the accused in custody cannot be relied upon by
the co-accused who is an absconder. The
consideration of an accusation under the NDPS Act
is circumscribed by the twin embargo of
Section37(1)(b)(ii), quoted hereinabove and
unless an accused can cross both the barriers of
Section 37(1)(b)(ii) of NDPS Act, he cannot be
released on bail. In this context reliance can be
placed on the Judgment of the Apex Court in the
case of Union of India Vrs. Ajay Kumar Singh
(2001) 7 SCC 673
alias Pappu7 and Narcotic Control Bureau Vrs.
Kashif8.
7A. Such restriction(s) apply in greater vigour
for consideration of grant of the exceptional
remedy of pre-arrest bail, as clarified by the Apex
Court in the case of Satender Kumar Antil Vrs.
Central Bureau of Investigation and another9.
8. In the instant case in view of the grounds
of acquittal of the co-accused, it is open for the
Petitioner to submit that he is not guilty of
commission of such offence.
9. In terms of the second limb of the twin
embargo of Section 37(1)(b)(ii) of the NDPS Act,
2023 SCC Online SC 346
2024 SCC Online SC 3848
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.
2023 SCC Online SC 452
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.
this Court is not persuaded to arrive at a finding
that the Petitioner "is not likely to commit any
offence while on bail", in view of his criminal
proclivity being cited as an accused in five other
cases and his conduct of absconding. As such, the
ABLAPL does not merit consideration and is
rejected.
However, in the event the Petitioner
surrenders before the learned Court in seisin in the
aforesaid case and moves an application for his
release on bail, the same shall be considered on its
own merit.
10. Accordingly, the ABLAPL stands disposed
of.
(V. NARASINGH)
Judge
Orissa High Court, Cuttack,
Dated the 25th August, 2025/Jina
Location: High Court of Orissa
Date: 26-Aug-2025 20:55:27
