Hasibul Sk vs State Of Odisha ..... Opposite Party
2025 Latest Caselaw 2060 Ori

Citation : 2025 Latest Caselaw 2060 Ori
Judgement Date : 3 January, 2025

Orissa High Court

Hasibul Sk vs State Of Odisha ..... Opposite Party on 3 January, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 BLAPL No.3519 of 2024
                 Hasibul Sk.                 .....        Petitioner
                                                              Represented By Adv. -
                                                              Sudhansu Sekhar Dash

                                             -versus-
                 State Of Odisha                    .....            Opposite Party
                                                              Represented By Adv. -
                                                              Mr. S.K. Parhi, ASC

                                     CORAM:
                       THE HON'BLE MR. JUSTICE ADITYA KUMAR
                                   MOHAPATRA

                                            ORDER

03.01.2025

Order No.

01. 1. This matter is taken up through Hybrid mode.

2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State.

3. This is an application under Section 439 of the Code of Criminal Procedure filed by the Petitioner for bail arising out of P.R. Case No.41 of 2023-24, corresponding to 2(a) C.C. Case No.85 of 2023, pending in the Court of the learned 2nd Additional District & Sessions Judge, Cuttack for alleged commission of offence under Sections 20(b)(ii)(C) of NDPS Act.

4. Learned counsel for the Petitioner submits that earlier this matter was not before any other Bench of this Court. It is submitted by the learned counsel for the Petitioner that the Petitioner is in custody since 02.05.2023. He further contended that the investigation has been completed and the final charge-sheet has been filed on

20.10.2023. Further, referring to the allegations made in the P.R., learned counsel for the Petitioner submitted that a total quantity of 80 kgs. of contraband ganja was recovered from the exclusive and conscious possession of the Petitioner. He further contended that while conducting the search and seizure the procedure as laid down in Section 50 of NDPS Act has not been followed strictly. He further contended that the Petitioner does not have any similar criminal antecedents and that although the Petitioner does not belong to the State of Odisha, he is ready and willing to abide any stringent terms and conditions imposed by this Court in the event he is released on bail.

5. Learned counsel for the Petitioner at the outset argued that the Petitioner has been detained in custody for around a period of one and half years. However, the trial has not yet progressed substantially in the meantime. Further, referring to the various judgments of the Hon'ble Supreme Court, he argued that the right to speedy trial is a fundamental right of the accused. Violation of such right would not stand in the way of the Petitioner being released on bail irrespective of the provisions contained in Section 37 of the NDPS Act. He further contended that in view of the delay in commencement and conclusion of the trial, the bar under Section 37 would not be attracted to the facts of the present case.

6. Next, learned counsel for the Petitioner argued that Section 50 of the NDPS Act has not been complied with in the present case. In the aforesaid context, learned counsel for the Petitioner further submitted that admittedly the search and seizure was not conducted in the presence of an executive magistrate as provided under Section 50 of the NDPS Act. He further contended that in the event

compliance with Section 50 of the NDPS Act is not possible, then the Arresting Officer shall take resort to Section 100 of the Cr.P.C. In view of the provisions under Section 100 of the Cr.P.C., the Petitioner is required to be searched in presence of two independent witnesses. However, in the present case, the Petitioner was searched in presence of only one independent witness. In the aforesaid background learned counsel for the Petitioner contended that in the present case the adherence to provisions under Section 50 of the NDPS Act and Section 100 of the Cr.P.C. has been given a complete go by. As such, the entire proceeding against the present Petitioner is vitiated. In the context of compliance with Section 50 of the NDPS Act and Section 100 of the Cr.P.C., learned counsel for the Petitioner referred to the detailed order in Prabhat Upadhyay vs. State of Odisha in BLAPL No.6601 of 2024. On perusal of the order, it appears that this Court had taken note of the provisions contained in Section 50 of the NDPS Act and Section 100 of the Cr.P.C. and the procedure required to be followed by the Arresting Officer has been elaborately discussed. On a careful examination of the materials on record, this Court observes that in the present case there exists a deviation from the aforesaid established procedure.

7. Learned counsel for the State on the other hand objected to the release of the Petitioner on bail. He further contended that taking into consideration the quantity of contraband ganja, i.e. 80 kgs., the bar under Section 37 would be attracted in the present case. Additionally, it was contended that so far as, the adherence to Section 50 of the NDPS Act is concerned, it is a matter to be decided in trial and that this Court is not required to consider the aforesaid at the time of consideration of the bail application. Learned Additional Standing

Counsel emphatically argued that the Arresting Officer has followed the procedure as has been enumerated in the statute. Therefore, there is no violation of either Section 50 of the NDPS Act or Section 100 of the Cr.P.C.

8. Having heard the learned counsels appearing for the respective parties and on a careful examination of the case diary, surrounding facts and circumstances of the present case, further keeping in view the period of detention of the Petitioner in jail custody, and in view of my analysis made hereinabove with regard to the adherence to the procedure enshrined in Section 50 of the NDPS Act and the alternative procedure in Section 100 of the Cr.P.C., I am of the view that the Petitioner is entitled to be released on bail subject to imposition of stringent conditions.

9. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/- (Rupees Fifty Thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned court in seisin over the matter subject to the following terms and conditions:

I) The Petitioner shall also file an affidavit before the Trial Court with regard to indicating there his residential details other details like Aadhar No., Phone No. before the jurisdictional police station & further release of the Petitioner shall be subject to verification of such details as would be furnished by any relative of the Petitioner in the shape of an affidavit;

II) he shall not be involved in any offence of similar nature while on bail;

III) he shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever;

IV) he shall not make any default in attending the court during trial on each date without fail;

V) he shall appear before the concerned Police Station once in a fortnight preferably on 'Sunday' in between 10.00 A.M. to 1.00 P.M. till conclusion of the trial;