Orissa High Court
Subash Meher @ vs State Of Odisha .... Opposite Party on 24 November, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.10335 of 2025
Subash Meher @ .... Petitioner
Subash Chandra
Meher
Mr. B. K. Behera 1, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. B. Nayak, AGA
CORAM: JUSTICE V. NARASINGH
ORDER
Order 24.11.2025
No.
03. 1. Heard learned counsel for the Petitioner and
learned counsel for the State.
2. The Petitioner is seeking pre-arrest bail in
connection with C.T. Case No.02 of 2020 (NDPS)
pending on the file of learned Additional Sessions
Judge-cum-Special Judge, Dharamgarh, arising out
of Dharamgarh P.S. Case No.105 of 2020 for
commission of offences punishable under Sections
20(ii)(b)(c)/29 of NDPS Act.
3. It is submitted by the learned counsel that
the Petitioner was not named in the charge sheet as
well as in the supplementary charge sheet but in
the investigation which was kept open,
subsequently he has been arrayed as an accused.
4. It is further submitted by the learned counsel
that the basis of accusation is on account of the
statement of the co-accused. The allegation against
the present Petitioner is that he is also involved in
the trade of contraband (Ganja). The contraband
Ganja which was seized and alleged to be the tune
of 119kg 555grms.
5. It is submitted by the learned counsel that
the three co-accused persons from whose
possession the illegal contraband was seized were
put to trial and the learned Additional Sessions
Judge-cum-Special Judge, Dharmagarh, Kalahandi
by judgment dated 30.03.2024 in C.T. No.02 of
2020 (NDPS)/T.R. No.01 of 2021 have acquitted
the said co-accused persons. Hence, on the said
ground the Petitioner submits that since the very
foundation of implicating the Petitioner has failed
and the Petitioner who do not have any criminal
proclivity, he may be protected by pre-arrest bail.
6. It is also brought to the notice of this Court
that the Petitioner had moved this Court in ABLAPL
No.3050 of 2022 which was disposed of vide order
date 26.04.2022 giving him liberty to surrender and
release on pre-arrest bail.
7. Referring to such order, it is stated by the
learned counsel for the Petitioner that though he
had taken steps in terms of the said order, the
same could not be worked out, inter alia, on the
ground that it is a case of mistaken identity.
8. Be that as it may, it is submitted that since
admittedly on the basis of the co-accused
statement the Petitioner was cited as an accused
and in the light of the acquittal of the accused, the
Petitioner may be protected by pre-arrest bail.
9. Learned counsel for the State opposes the
prayer for pre-arrest bail referring to the Section
37(1)(b)(ii) of NDPS Act and submits that the
acquittal of co-accused cannot ennure to the benefit
of the Petitioner who has not been taken into
custody.
Though there is force in such submission as
a core principle but this Court cannot lose sight of
the nature of evidence and assessment thereof
under the NDPS Act.
10. The learned Special Judge while acquitting
the co-accused recorded the following findings
which have a direct bearing on the point at issue:-
"Furthermore, the provisions of Section 50 of
the NDPS Act regarding search in presence of
the Executive Magistrate was not conducted,
as the Executive Magistrate has not stated
that search was conducted in his presence.
Hence, the presence of the accused persons
at the spot on the alleged date and time of
the occurrence is doubtful and there is no
corroborative and clinching and trustworthy
evidence that the accused persons were in
possession of the contraband article arid
seizure of the contraband article from the
exclusive and conscious possession of the
accused persons casts a cloud of doubt."
11. Learned trial Court has also raised a serious
doubt regarding the manner in which the
investigation has been conducted and returned the
categorical finding that mandatory provisions of
Sections 42(1), 50 and 57 of the NDPS Act were not
complied with for which the prosecution case seems
to be doubtful and accused are entitled for benefit
of doubt.
12. Per contra, it is submitted by the learned
counsel for the State that so far as the accusation
under Sections 42(1), 50 and 57 of NDPS Act are
concerned, since the same have no application so
far as the Petitioner is concerned, the findings of
the learned trial Court in this regard ought not to
weigh this Court, in considering the application of
the Petitioner.
13. But, at the same time so far as the finding of
the learned trial Court regarding the very presence
of the accused taken into custody at the spot being
doubtful, lends credence to the submission of the
learned counsel for the Petitioner, that his
implication being at the instance of such co-accused
who have been acquitted, the Petitioner may be
protected by pre-arrest bail.
14. On a perspicuous analysis of the materials on
record qua the accusation vis-à-vis the Petitioner
and the judgment of acquittal, this Court directs
that on surrendering within three weeks hence and
moving for bail, the Petitioner shall be released on
bail by the learned Court in seisin on such terms as
deemed just and proper.
15. Accordingly, the ABLAPL stands disposed of.
(V. NARASINGH)
Judge
Jina
Location: High Court of Orissa
Date: 26-Nov-2025 18:52:43
