Orissa High Court

Mohammad Sahid @ Md. Sahid vs State Of Odisha ... Opposite Party on 24 June, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
       BLAPL Nos.8679 of 2024 & 5200 of 2025

  (In the matter of application U/S.483 of the Bharatiya
  Nagarik Suraksha Sanhita, 2023).

Mohammad Sahid @ MD. Sahid           ...         Petitioners
(In BLAPL No.8679 of 2024)
Rabin Tyagi
(In BLAPL No.5200 of 2025)
                         -versus-
State of Odisha                      ...    Opposite Party

For Petitioners          :   Mr. S. Manohar, Advocate
                             (for both the petitioners)

For Opposite Party       :   Mr. A. Pradhan, Addl. PP

       CORAM:
                   JUSTICE G. SATAPATHY

  F DATE OF HEARING & JUDGMENT:24.06.2025(ORAL)

G. Satapathy, J.

1. Since these two bail applications arise out

of one and same case record, the same are heard

together and disposed of by this common judgment

with the consent of the learned counsel for the parties.

2. These are applications U/S.483 BNSS by

the petitioners for grant of bail in connection with

Malkangiri PS Case No.167 of 2023 arising out of GR

Case No.90 of 2023, pending in the Court of learned

Sessions Judge-Cum-Special Judge, Malkangiri, for

commission of offences punishable U/S. 20(b)(ii)(C)/

25/ 29 of NDPS Act, on the main allegation of

transporting 475 Kgs of Contraband Ganja in 19 bags in

white color container bearing Regd. No.CG- 04 MA-

4123.

3. In the course of hearing, Mr. Shyam

Manohar, learned counsel for both the petitioners

appearing virtually submits that not only a false case

has been planted against the petitioners, but also the

mandatory requirement of compliance of provisions of

NDPS Act have not been complied with and the

petitioners have been simply detained in custody on

false accusations. Mr. Manohar, further submits that

there was in fact no sampling and no procedure

prescribed for sampling had been followed in this case

since the samples were sent to laboratory after four

days of collection of it and the samples were collected

in the absence of the accused, but it is mandatory for

the investigating agency to collect the sample in

presence of the accused person. Mr. Manohar also

submits that the provisions of Section 50 and 52-A of

the NDPS Act have not been complied in this case and

the petitioners having detained in custody for last two

years and three months, their personal liberty has been

seriously infringed. Further, Mr. Manohar submits that

in the meantime, only four out of fourteen witnesses

have been examined, but such evidence of the

witnesses hardly implicates the petitioners. Under the

aforesaid submissions, Mr. Manohar prays enlarge the

petitioners on bail.

3.1. On the other hand, Mr. A. Pradhan,

learned Addl. Public Prosecutor, however, submits that

not only prima facie case is made out against the

petitioners, but also they have been implicated in this

case on prima facie accusations and the investigating

agency has followed due procedure for detection and

arrest of the petitioners for possessing huge

commercial quantity of Contraband Ganja. It is further

submitted by Mr.Pradhan that whatever the learned

counsel for the petitioners is highlighting, is matters of

trial and trial being going on, the said aspect of

sampling or compliance of mandate of provisions can

be ascertained once all the witnesses are examined, but

fact remains that the evidence of the witnesses clearly

discloses prima facie case against the petitioners for

possessing huge quantity of Contraband Ganja and,

therefore, the petitioners having failed to satisfy the

conditions of Section 37 of NDPS Act, their applications

for grant of bail merits no consideration. Mr.Pradhan

accordingly prays to reject the bail applications of the

petitioners.

4. After having considered the rival

submissions upon perusal of record, there appears

allegation against the Petitioners for transporting net

475Kgs. of Contraband Ganja in a container and such

quantity of Contraband Ganja is definitely coming under

commercial quantity, but grant or refusal of bail in a

case involving commercial quantity is governed by the

conditions of Section 37 of NDPS Act which is

mandatory in nature. True it is that the learned counsel

for the petitioners, however, submits that there was

complete non-compliance of Section 50 of the NDPS

Act, but fact remains that the Section 50 of NDPS Act

relates to personal search of a person accused of

offence and, therefore, the same has no application in

this case. In this regard, this Court is alived with the

principle laid down by Apex Court in State of Punjab

Vrs. Baldev Singh; (1999) 6 SCC 172 wherein a five

Judges Constitutional Bench of Apex Court has been

pleased to hold at Paragraph-12 as under:-

"12. "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."

4.1. Whether compliance of Section 50 of NDPS

Act is a question of fact or not has been well explained

by the Apex Court in Baldev Singh(supra) wherein at

Paragraph-33, the Apex court has held as under:-

"33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial."

5. Further, the petitioners also seeks for bail

on the ground of non-compliance of the sampling

procedure, but fact remains that grant or refusal of bail

in a criminal case requires to be adjudicated on the

basis of existence of prima facie case or no prima facie

case, but detail analysis of evidence and meticulous

examination of documentation on merits should not be

undertaken while considering the bail application of a

person accused of offences. Further delay in disposal of

the case, more particularly in a case under NDPS Act

cannot be always considered to be a persuasive factor

to grant bail to the person accused on offence under

NDPS Act involving commercial quantity in view of the

law laid down by Apex Court in Narcotic Control

Bureau Vrs. Mohit Agarwal; (2022) 18 SCC 374,

wherein a three Judge Bench of the Apex Court has

held as under:-

"the length of the period of his custody or the fact that charge sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent U/S. 37 of the NDPS Act".

6. Additionally, addressing the contention of

the petitioners regarding sampling and non-compliance

of Sec. 52-A of the NDPS Act, this Court considers it

apposite to refer to the decision in Narcotic Control

Bureau Vrs. Kashif; 2024 SCC On Line SC 3848

wherein the Apex Court has been pleased to held in

Paragraph-24 as under:-

"24. Sec. 52-A was inserted only for the purpose of the early disposal of the seized Contraband Drugs and Substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage place etc. There cannot be any two options 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 Narcotic Drugs and Psychotropic Substances, however delayed compliance or non-compliance of

the said provision by the concerned officer authorized 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".

6.1. Further, the Apex Court in Kashif(supra)

has held in Paragraph-8 as under:-

"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."

6.2. Be that as it may, in this case the copy of

deposition as furnished by the petitioners reveals that

four witnesses have already been examined and out of

the four witnesses, PW.3, being a member of the

raiding party has also stated against the petitioners to

be the occupants of the vehicle-container at the

relevant time and recovery of 475Kgs of Contraband

article from such vehicle. It is, therefore, not in dispute

that the trial is going on and there appears allegation

against the petitioners for possessing commercial

quantity of Contraband Ganja, but on a conspectus of

materials placed on record, it cannot be said that the