Orissa High Court
Udhab Digal vs State Of Odisha .... Opposite Party on 1 May, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.1768 of 2025
1. Udhab Digal .... Petitioners
2. Prakash Digal
3. Pandu Digal
4. Deba Kanhar
Mr. S. Dwibedi, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. K Lenka, ASC
ABLAPL No.1067 of 2025
Shyameswar Digal .... Petitioner
Mr. A.Tripathy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. K Lenka, ASC
ABLAPL No.1069 of 2025
Tapeswar Digal .... Petitioner
Mr. A. Tripathy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. K Lenka, ASC
Page 1 of 17
CORAM: JUSTICE V. NARASINGH
Date Of Hearing And Judgment :01.05.2025
V. Narasingh, J.
1. It is apt to note here that ABLAPL No.1067
and 1069 of 2025 are posted to 07.05.2025. And,
since all the matters arise out of Gochhapada P.S.
Case No.35 of 2020, they are heard together and
disposed of by this common judgment on the
consent of the parties.
2. Heard learned counsel for the Petitioners
and learned counsel for the State.
3. The Petitioners are seeking pre-arrest bail
in connection with C.T. Case No.35-A of 2020
pending in the Court of learned Special Judge,
Phulbani, arising out of Gochhapada P.S. Case
No.35 of 2020 for commission of offence
punishable under Sections 20(b)(ii)C of the NDPS
Act. The allegation against the Petitioners is that
they along with the co-accused who faced trial are
involved in the transportation of contraband
(Ganja) to the tune of 2020kgs.
4. It is submitted by the learned counsel Mr.
Tripathy and Mr. Dubey for their respective clients
that the implication of the Petitioners are on
account of co-accused statement and since the co-
accused who have since been acquitted by
judgment dated 13.05.2024 by the Special Judge,
Kandhamal, Phulbani, in Crl. Trial No.35 of 2020,
inter alia, on the ground of violation of the
mandatory provisions of Sections 42(2) as well as
57 of NDPS Act, the Petitioners, who do not have
any criminal proclivity, may be protected by pre-
arrest bail.
4A. For convenience of ready reference
Sections 42(2) and 57 of NDPS Act are extracted
hereunder;
xxx xxx xxx
42. Power of entry, search, seizure and
arrest without warrant or
authorisation.--
(l) xxx
(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.
xxx xxx xxx
57. Report of arrest and seizure.--
Whenever any person makes any arrest or
seizure under this Act, he shall, within forty-
eight hours next after such arrest or seizure,
make a full report of all the particulars of
such arrest or seizure to his immediate
official superior.
xxx xxx xxx"
5. In this context, learned counsel for the
Petitioners place on record the copy of the
judgment of acquittal of the co-accused. The
finding regarding the violation of the mandatory
provisions as stated by the learned Special Judge
is extracted hereunder:
"xxx xxx xxx
Such aspects discussed here-in-above has
resulted in allowing this Court to come to a
conclusion that the mandatory provision
about compliance of Section 42 (2) of the
NDPS Act has not been proved by the
prosecution to the hilt.
xxx xxx xxx"
5A. So far as violation of the Section 57 of the
NDPS Act is concerned, the learned Special Judge
after quoting the said section observed thus;
"xxx xxx xxx
From a bare reading, it is abundantly clear
that it is the Officer (person) who makes
any arrest or seizure under the Act shall
have to make a full report of all the
particulars of such arrest or seizure to his
immediate official superior. Therefore,
such a report complying the requirements
of Section 57 of the Act had to be
submitted by P.W.10, the informant and
not by the I.O., P.W.11 only. Therefore,
the requirement of Section 57 of the Act
has not been complied with.
xxx xxx xxx"
6. Referring to such finding of the learned
Special Judge, it is submitted by the learned
counsel for the Petitioners that in view of the
same, since the seizure in question is a joint
seizure, custodial interrogation of the Petitioners is
not warranted and they ought not to be remanded
to custody.
7. Such submission is opposed by the learned
counsel for the State Mr. Lenka, inter alia, on the
ground that the charge sheet is filed on
26.04.2022, under Sections 20(b)(ii)C and 29 of
NDPS Act. The Petitioners have been cited as
accused and their status have been shown as
absconders and so far as the trial is concerned it is
trite that the evidence on record is qua the
accused, who faced trial and as such, the same
ought not to ennure to the benefit of the accused
like the Petitioners who are absconders. Hence,
seeks dismissal of the ABLAPL. He also relies on
the bars under Section 37(1)(b)(ii) of the NDPS
Act to resist the prayer of the Petitioners.
8. In the recent pronouncement of the Apex
Court in the case of Satender Kumar Antil Vrs.
Central Bureau of Investigation and another,
reported in, 2023 SCC Online SC 452, adopting
the course of continuing Mandamus it has been
clarified that the principles as set out in the case of
Satender Kumar Antil Vrs. Central Bureau of
Investigation and another, reported in, (2022)
10 SCC 51 shall apply in equal measure to
application for anticipatory bail.
The said finding of the Apex Court is extracted
hereunder for convenience of ready reference:
"xxx xxx xxx
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.
xxx xxx xxx"
9. The submissions of the learned counsel for
the Petitioners have to be evaluated on the basis
of clarificatory observation of the Apex Court
extracted hereinabove.
10. The observation of the learned Special
Judge on the basis of evidence on record regarding
the perfunctory manner in which investigation has
been done to establish the prima facie complicity
of the Petitioners cannot be lost sight of. The same
has a bearing in the case at hand in evaluating the
stand of the Petitioners, considering the
background relating to the Petitioners'
involvement.
11. It is no doubt true that so far as the
anticipatory bail is concerned, the same is an
exceptional remedy and cannot be claimed as a
matter of right.
12. There is no cavil about the proposition of
law as stated by the learned Additional Standing
Counsel that the evidence on record is in respect of
the accused persons who faced trial and that
ordinarily an order of anticipatory bail which is
admittedly an exceptional remedy ought not to be
entertained in case of the co-accused more so
warrantees.
12A. But as has been clarified by the Apex Court
in the recent case of Serious Fraud
Investigation Office Vrs. Aditya Sarda,
reported in, 2025 SCC Online SC 764 that there
cannot be any strait jacket formula for appreciation
of a anticipatory bail and each case has to be dealt
with taking into account the peculiar facts and
circumstances of the case at hand.
For convenience of ready reference the
relevant portion of the judgment is quoted
hereunder;
"xxx xxx xxx
There cannot be a strait jacket formula,
as sought to be submitted by the
learned advocates for the Respondents
that the Court must first issue a
summons even in case of a warrant
case, irrespective of the gravity or
seriousness of the offence. As well
settled by now, whether the attendance
of the accused can be best secured by
issuing a bailable warrant or non-
bailable warrant, would be a matter,
which entirely rests at the discretion of
the concerned Court.
xxx xxx xxx"
13. This Court is conscious of the fact that
filing of the charge sheet shows that there is a
prima facie case, as has been held by the Apex
Court in the case of State by the Inspector of
Police Vs. B. Ramu, reported in 2024 SCC
Online SC 4073 as well as in the case of State of
Madhya Pradesh vs. Kajad, reported in (2001)
7 SCC 673 stating no uncertain terms in an
accusation in a NDPS Case, grant of bail is an
exception, as opposed to the general doctrine of
bail being the rule in view of the bar under Section
37(1)(b)(ii) of the NDPS Act. For convenience of
ready reference Section 37(1)(b)(ii) of the NDPS
Act is extracted here under;
"xxx xxx xxx
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 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.
xxx xxx xxx"
14. But, this Court cannot be oblivious of the
observations of learned Special Judge on the basis
of evidence on record, that there has been a
violation of mandatory provisions of the NDPS Act
and coupled with the same, the learned Special
Judge has also further opined regarding the
conduct of the Investigating Agency in not taking
any steps to nab the present accused persons,
which runs thus;
"xxx xxx xxx
Furthermore, a disturbing feature in the
investigation has come to light in course of
trial as no step was taken by the
Investigating Officer and the prosecuting
agency to place any report as against 12
other persons who were alleged to have
managed to escape from the spot. Though
the names of those persons appear in the
F.I.R. marked as Ext.P-21 and the
Investigating Officer presented the Final
Form keeping the investigation open, but
for the reasons best known to the
Investigating Officer no step in respect of
those alleged persons alleged to have
been escaped from the spot has been
taken for more than 03 years and 06
months leading to a reasonable doubt as
regards any such assemblage of 14
persons at any such spot and the recovery
of contraband articles from the spot.
From the evidences discussed in the
foregoing paragraphs, this Court
entertains a reasonable doubt as to
whether there was any detection of
any contraband article, i.e. ganja
made by the police officers at the spot
and so also about the factum of
detection and seizure of contraband
ganja from the possession of the
accused persons vide Seizure List
Ext.P-7/3.
xxx xxx xxx"
15. In the backdrop of such finding of the
learned Trial Court, this Court is persuaded to hold
keeping in view the judgment of the Apex Court in
the case of Tofan Singh vrs. State of Tamil
Nadu, reported in (2021) 4 SCC 1 as well as the
case of the State of Haryana vrs. Samarth
Kumar reported in 2022 SCC Online SC 2087
and in the light of the latest dictum of the Apex
Court in the case of Satender Kumar Antil Vrs.
Central Bureau of Investigation and another,
reported in, 2023 SCC Online SC 452 clarifying
that the principles which weigh with the Court
while considering the application of accused in
custody shall apply in equal measure in the case of
anticipatory bail.
16. Given the circumstances under which the
Petitioners have been cited as accused solely
basing on co-accused statement and violations of
mandatory provisions of section 42(2) and 57 of
NDPS Act in the context of seizure being a joint
one, this Court is persuaded to hold that merely
because warrants have been issued in the light of
the manner in which the investigation has been
done as noted by the learned Special Judge, the
Petitioners are entitled to be released on pre-arrest
bail.
16A. It is thus directed that on surrendering in
the case at hand, the Petitioners shall be released
on bail by the learned Court in seisin fixing such
terms and conditions, deemed just and proper,
subject to verification of criminal antecedent of any
nature.
17. Before parting with the case, this Court
feels it obligatory to address the concern
expressed at the bar regarding the hardships faced
by the accused persons because of the manner of
submission of the criminal antecedents in the
Jurisdictional Court.
17A. It is stated that because of non-furnishing
of such criminal antecedents, the accused are
facing difficulties while pursuing their motions
before the learned Court in seisin in terms of the
order passed by this Court where it is stipulated
that the release shall be subject to verification of
criminal antecedents.
18. Taking note of such grievance across
the Board, this Court is persuaded to direct that
details of the criminal antecedents shall be
furnished to the learned Court in seisin, wherever
it is so directed, within three days from the date of
such order/ judgment.
And, such antecedents shall be
simultaneously shared with the DIB of the
concerned police district so that correct details of
the antecedents and the status thereof, can be
brought to the notice of the court, which in turn
would ensure that no prejudice is caused to either
the prosecution or the accused.
Learned counsel for the State is requested
to impart necessary instruction in this regard.
19. Copy of this judgment be communicated to
the Principal Secretary (Home), State of Odisha
who is requested to issue necessary directions
relating to furnishing of details of criminal
antecedent in tune with the direction as contained
in paragraph-18 above, to the UPDs and the Police
Districts through the concerned D.C.Ps and S.Ps, in
the interest of ensuring transparency in
dispensation of justice in criminal cases. Registry is
requested to do the needful.
20. Accordingly, the ABLAPL stands disposed of.
(V. NARASINGH)
Judge
Orissa High Court, Cuttack,
Dated the 1st May, 2025/Soumya
Signed by: SOUMYA RANJAN SAMAL
Location: High Court of Orissa
Date: 03-May-2025 19:45:37
