Orissa High Court
Sinu Beero vs State Of Odisha ...... Opp. Party on 19 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 8620 of 2024
Application under Section 439 of the Code of Criminal Procedure.
--------------
Sinu Beero ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Manoranjan Padhy, Advocate
For Opp. Party : Mr. J.P. Patra, A.S.C.
--------------------------------------------------------------------------------
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
19.02.2025
Savitri Ratho, J. This application has been filed under Section 439 of
Cr.P.C. in connection with Athagarh Excise P.R. Case No.55 of
2023-24 corresponding to Special Case No.07 of 2023 pending in
the Court of the learned Addl. Sessions Judge -cum- Special Judge,
Athagarh under Sections 20 (b) (ii) (C) of the N.D.P.S. Act.
2. BLAPL No. 8620 of 2023 is the third application of the
petitioner Sinu Beero under Section 439 of Cr.P.C. in this Court for
grant of bail to the petitioner.
BLAPL No. 11527 of 2023 filed earlier by the petitioner
Sinu Beero had been dismissed on 17.10.2023 granting liberty to
him to approach the learned trial Court for bail afresh after
completion of investigation.
His second application-BLAPL No. 14364 of had been
dismissed as withdrawn on 07.11.2023.
3. The prayer for bail of the petitioner Sinu Beero has been
rejected by the learned Special Judge, Athagarh on 16.08.2024, for
which he has filed BL APL No. 8620 of 2024 before this Court .
PROSECUTION CASE
4. The prosecution allegation in brief is that on 30.07.2023
at about 4.00 a.m. 100 kgs. of ganja has been seized from the
conscious and exclusive possession of the petitioner and co-
accused Mohan Behera who were travelling in a Scorpio vehicle
bearing Registration No. OR-02-BJ-9191. Since they could not
produce any documents in support of the transportation, the ganja
was seized and they were arrested.
SUBMMISSIONS
5. The learned counsel for the petitioner has submitted that
the petitioner is in custody since 30.07.2023 and is prejudiced as
mandatory provisions have not been followed . The sample of
ganja has not been taken from the seized contraband following
proper procedure as it is mentioned as Form-3(2) that "Ganjei
Kalli" has been taken as sample which has been sent for chemical
examination. He has also submitted that in view of the fact that
the Bolero is not a transport vehicle, Section 42(1) and 41(2) of the
NDPS Act should have been complied with and not Section 43 of
the NDPS Act which pertains to search in a public transport
vehicle. In supportof his submission , he relies on the decision of
the Supreme Court in the case of State of Rajasthan vs. Jag Raj
Singh & Hansa reported in 2016 (11) SCC 687 (para 16 and 19).
6. He also submits that the petitioner is entitled to be
released on bail as he has remained in custody for more than one
and half years and has no criminal antecedents .
7. Mr. J.P. Patra, learned Addl. Standing Counsel for the
State opposed the prayer for bail stating that 100 Kgs. of ganja has
been recovered from the vehicle for which Section 37 of the NDPS
Act will operate as a bar for releasing him on bail.He has also
submitted that that Section 42(2) of the NDPS Act will not be
applicable as search and seizure has been conducted by a gazetted
officer. He relied on the decisions of the Supreme Court in the case
of M. Prabhulal vs. Assistant Director Directorate of Revenue
Intelligence reported in (2003) 8 SCC 449 (para-15). Referring to
the decision of the Supreme Court in the case of Kallu Khan vs.
State of Rajasthan reported in (2021) 19 SCC 197, he submitted
that as it is a case of chance recovery , fault cannot be found out
with the authority for non-compliance of any prescribed procedure.
He also relied on the decision of this Court in the case of Chhagan
Bapu Shinde @ Chhagan Bapu Shinde vs. State of Odisha
decided on 23.08.2023 in BLAPL No. 6864 of 2023 in support of
his submissions.
8. REVEVANT PROVISIONS OF THE NDPS ACT
Section 37- Offences to be cognizable and non-bailable. -
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),
(a) every offence punishable under this Act shall be cognizable;
(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 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.
(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.
Section 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 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:
[Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic substances
or controlled substances granted under this Act or any rule or
order made thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that
a search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(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.]"
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 the nearest Gazette 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 subsection (1).
(3)The Gazette 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.
(5)When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of
taking such person to the nearest Gazette Officer or Magistrate,
proceed to search the person as provided under section 100 of
the Code of Criminal Procedure, 1973 (2 of 1974).
(6)After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours send a
copy thereof to his immediate official superior.
54. Presumption from possession of illicit articles.--
In trials under this Act, it may be presumed, unless and until
the contrary is proved, that the accused has committed an
offence under this Act in respect of--(a)any narcotic drug or
psychotropic substance or controlled substance;(b)any opium
poppy, cannabis plant or coca plant growing on any land
which he has cultivated;(c)any apparatus specially designed
or any group of utensils specially adopted for the manufacture
of any narcotic drug or psychotropic substance or controlled
substance; or(d)any materials which have undergone any
process towards the manufacture of a narcotic drug or
psychotropic substance or controlled substance, or any
residue left of the materials from which any narcotic drug or
psychotropic substance or controlled substance has been
manufactured , for the possession of which he fails to account
satisfactorily.
9. JUDICIAL PROUNOUNCEMENTS
The Supreme Court in the case of Jag Raj Hansa ( supra) has
held as follows :
"24. It is also relevant to note another Constitution Bench
judgment of this Court in Karnail Singh Vs. State of
Haryana, 2009 (8) SCC 539, where this Court had again
occasion to consider the provisions of Sections 42 and 50.
The Constitution Bench noted the divergence of opinion in
two earlier cases which has resulted in placing the matter
before the larger Bench. The question was noticed in
paragraphs 1 and 2 of the judgment which are to the
following effect:
"1) In the case of Abdul Rashid Ibrahim Mansuri vs.
State of Gujarat, (2000) 2 SCC 513, a three-Judge
Bench of this Court held that compliance of Section
42 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as
"NDPS Act") is mandatory and failure to take down
the information in writing and forthwith send a report
to his immediate official superior would cause
prejudice to the accused. In the case of Sajan
Abraham vs. State of Kerala, (2001) 6 SCC 692,
which was also decided by a three-Judge Bench, it
was held that Section 42 was not mandatory and
substantial compliance was sufficient.
2) In view of the conflicting opinions regarding the
scope and applicability of Section 42 of the Act in the
matter of conducting search, seizure and arrest
without warrant or authorization, these appeals were
placed before the Constitution Bench to resolve the
issue.
3) The statement of objects and reasons of the NDPS
Act makes it clear that to make the scheme of penalties
sufficiently deterrent to meet the challenge of well
organized gangs of smugglers, and to provide the
officers of a number of important Central enforcement
agencies like Narcotics, Customs, Central Excise, etc.
with the power of investigation of offences with regard
to new drugs of addiction which have come to be
known as psychotropic substances posing serious
problems to national governments, this comprehensive
law was enacted by Parliament enabling exercise of
control over"
25. After referring to the earlier judgments, the Constitution
Bench came to the conclusion that non-compliance of
requirement of Sections 42 and 50 is impermissible whereas
delayed compliance with satisfactory explanation will be
acceptable compliance of Section 42. The Constitution
Bench noted the effect of the aforesaid two decisions in
paragraph 5. The present is not a case where insofar as
compliance of Section 42(1) proviso even an arguments
based on substantial compliance is raised there is total non-
compliance of Section 42(1) proviso. As observed
above, Section 43 being not attracted search was to be
conducted after complying the provisions of Section 42. We
thus, conclude that the High Court has rightly held that non
compliance of Section 42(1) and Section 42(2) were proved
on the record and the High Court has not committed any
error in setting aside the conviction order.
26. In view of what has been stated above, it is not necessary
for us to enter into the other reasons given by the High
Court for setting aside the conviction order. The High Court
has given the sufficient reasons and grounds for setting
aside the conviction order in which we do not find any
infirmity so as to interfere in this appeal."
In the case of NCB vs. Kashif (Criminal Appeal No.5544 of
2024 @ SLP (Crl.) No. 12120 of 2024), the Hon'ble Supreme Court has
held as follows :
"39. The upshot of the above discussion may be summarized as
under:
(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.
(iii) The purpose of insertion of Section 52A laying down the
procedure for disposal of seized Narcotic Drugs and
Psychotropic Substances, was to ensure the early disposal of the
seized contraband drugs and substances. It was inserted in 1989
as one of the measures to implement and to give effect to the 34
International Conventions on the Narcotic drugs and
psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as
contemplated in sub-section (1) thereof, and any lapse or
delayed compliance thereof would be merely a procedural
irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been
committed in conducting the search and seizure during the
course of investigation or thereafter, would by itself not make
the entire evidence collected during the course of investigation,
inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has
been caused to the accused.
(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.
40. The impugned order based on the inferences and surmises,
in utter disregard of the statutory provision of the Act and in
utter disregard of the mandate contained in Section 37 of the
Act, and granting bail to the accused merely on the ground that
the compliance of Section 52A was not done within reasonable
time, is highly erroneous and deserves to be quashed and set
aside. Since, the High Court has not considered the application
of the respondent on merits and has also not considered the
mandatory requirement under Section 37(1)(b) of the Act, we
deem it appropriate to remand the case to the High Court for
deciding the bail application of the respondent afresh on merits
and in accordance with law.
The Supreme Court has also held thus : -
"24. Section 52A was inserted only for the purpose of early
disposal of the seized contraband drugs and substances,
considering the hazardous nature, vulnerability to theft,
constraint of proper storage space etc. There cannot be any two
opinions on the issue about the early disposal of the contraband
drugs and substances, more particularly when it was inserted to
implement the provisions of International Convention on the
Narcotics Drugs and Psychotropic Substances, however delayed
compliance or non-compliance of the said provision by the
concerned officer authorised to make application to the
Magistrate could never be treated as an illegality which would
entitle the accused to be released on bail or claim acquittal in
the trial, when sufficient material is collected by the
Investigating Officer to establish that the Search and Seizure of
the contraband substance was made in due compliance of the
mandatory provisions of the Act. 25. It is significant to note
that as per Section 54 of the said Act, the courts are entitled to
presume, unless and until the contrary is proved that the accused
had committed an offence under the Act in respect of any
narcotic drug or psychotropic substance etc. for the possession
of which he failed to account satisfactorily. Therefore, unless
such statutory presumption is rebutted by the accused during the
course of trial, there would be a prima facie presumption that
the accused had committed the offence under the Act, if he is
found to have possessed the contraband drug and substance, and
if he fails to account satisfactorily, as contemplated in the said
provision of Section 54. An anomalous situation would arise if a
non-compliance or delayed compliance of Section 52A is held to
be vitiating the trial or entitling the accused to be released on
bail, though he is found to have possessed the contraband
substance, and even if the statutory presumption is not rebutted
by him. Such could not be the intention of the legislature.
26. It is further pertinent to note that as per the settled legal
position even the evidence collected by an illegal search or
seizure could not be excluded or discarded. Whether the
evidence collected by an illegal search or seizure is admissible
or not has been considered by this Court in a series of decisions
and one of the earliest decisions is the decision of the
Constitution Bench in case of Pooran Mal Vs. Director of
Inspection (Investigation) New Delhi and Others (supra). It
was observed therein that:
"24. So far as India is concerned its law of evidence is
modelled on the rules of evidence which prevailed in
English Law, and Courts in India and in England have
consistently refused to exclude relevant evidence merely
on the ground that it is obtained by illegal search or
seizure."
ANALYSIS AND CONCLUSION
10. There can be quarrel over the proposition that an accused is
entitled for an acquittal on account of violation of mandatory
provisions of the NDPS Act. But the position is different when a
prayer for bail is being considered. In view of the decision of the
Supreme Court in the case of Kashif (supra), and the provisions of
Section 54 of the NDPS Act, I am of the view that it would not be
proper to scan the case diary to consider the infraction of provisions
of the NDPS Act or the effect of alleged non compliance of the
mandatory provisions of the NDPS Act for considering the
application for bail and that task should be best left to the learned
trial Court.
11. In view of the quantity of ganja recovered from the Bolero,
the circumstances in which it was seized and the stringent
requirements of Section - 37 of the NDPS Act, I am not satisfied
that the petitioner should be released on bail.
12. In view of the punishment prescribed for the offence the
petitioner is accused of committing and the period spent by him in
custody, I am also not satisfied that he should be realised on bail on
the ground of violation of Article 21 of the Constitution and right to
speedy trial.
13. The prayer for bail is accordingly rejected .
14. While rejecting the prayer for bail, keeping in mind the fact
that the petitioner is in custody since 30.07.2023, and keeping in mind
the decision of the Delhi High Court in the case of Athar Pervez vs
State: 2016 SCC OnLine Del 6662 and the Supreme Court in the case
of Arvind Kejriwal v. Directorate of Enforcement, (2024) 9 SCC 577
on grant of interim bail, I am inclined to direct for release of the
petitioners on interim bail for a period of three months.
15. The petitioner Sinu Beero shall be released on interim bail for
a period of three months by the learned Court below in seisin over the
matter in connection with the aforesaid case, on such terms and
conditions as deemed fit and proper, including the following
conditions:-
i) He shall furnish cash surety of Rs 20,000/-.
ii) He shall not leave Cuttack District, without permission of the
learned trial Court.
iii) He shall furnish his local address and permanent to the Court,
which will be verified through the Police, before the petitioners are
released on bail.
iv) He shall furnish his active mobile number to the Court, which
shall be verified, before he is released on bail. He shall intimate any
change in his mobile number to his counsel immediately, so that it
can be intimated to the Court.
v) He shall remain personally present in the learned trial court on
each date it is fixed for trial.
vi) He shall appear before the Athagarh Police Station on every
alternative Sunday between 10.00 am to 11.00 a.m. unless permitted
by the learned trial court to leave Cuttack District.
vii) He shall surrender before the learned trial court after expiry of
the period of three months , or by 07.06.2025 whichever is earlier..
16. Violation of any condition will entail in cancellation of bail /
recall of this order.
17. The BLAPL is accordingly disposed of.
18. The learned trial Court is requested to make an endeavour to
complete the trial within a period of six months , if there is no other
impediment.
19. It is open to the petitioners to move the learned trial Court for
bail afresh in case there is undue delay in completion of the trial.
20. Copy of this order shall be sent by Mr. Gyanalok Mohanty,
learned Standing Counsel for on onward transmission to the IIC,
Athagarh Police Station.
21. The IIC Atahgarh Police Station shall immediately bring to the
notice of the learned trial court, if the conditions imposed are
violated.
22. No observation in this order should influence the learned trial
court during trial, as they have been made for the purpose of
consideration of the prayer for bail.
...........................
(SavitriRatho)
Judge
Orissa High Court, Cuttack.
The 19th February, 2025.
Sukanta, Senior Stenographer.
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 28-Feb-2025 12:03:29
