Orissa High Court
Kantheswar Kanhar vs State Of Odisha .... Opposite Party on 23 October, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 3912 of 2025
Kantheswar Kanhar .... Petitioner
Mr. A. R. Panda, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. S. Panigrahi, ASC
CORAM: JUSTICE V. NARASINGH
DATE OF HEARING : 17.10.2025
DATE OF ORDER : 23.10.2025
V. Narasingh, J.
1. Heard Mr. Panda, learned counsel for the
Petitioner and Mr. Panigrahi, learned Additional
Standing Counsel for the State.
2. The Petitioner is seeking pre-arrest bail in
connection with C.T. Case No.19-A of 2021 pending
on the file of learned District and Sessions Judge-
cum-Special Judge, Phulbani arising out of Phiringia
P.S. Case No.23 of 2021 for commission of offences
punishable under Sections 20(b)(ii)C/29 of the NDPS
Act. The allegation against the Petitioner is that he
along with the co-accused, who faced trial, are
involved in the possession of contraband (Ganja) to
the tune of 11 Quintal.
3. It is submitted by Mr. Panda, learned counsel
for the Petitioner that the implication of the Petitioner
is on account of co-accused statement and since the
co-accused have been acquitted by judgment dated
28.03.2025 by the learned Special Judge-Addl.
Sessions Judge, Phulbani, Dist-Kandhamal, in Crl.
Trial No.19 of 2021, inter alia, on the ground of
violation of the provisions of Sections 50(2) and 55 of
NDPS Act, the Petitioner, who does not have any
criminal proclivity, may be protected by pre-arrest
bail.
4. Ex-facie alleged violation of section 50(2) of
the NDPS act is not attracted in case of the
Petitioner. The submission in this regard by the
learned counsel for the Petitioner is misconceived.
For convenience of reference Section 55 of
the NDPS Act is extracted hereunder;
"xxx xxx xxx
55. Police to take charge of articles seized
and delivered.-- An officer-in-charge of a police
station shall take charge of and keep in safe
custody, pending the orders of the Magistrate, all
articles seized under this Act within the local area
of that police station and which may be delivered
to him, and shall allow any officer who may
accompany such articles to the police station or
who may be deputed for the purpose, to affix his
seal to such articles or to take samples of and
from them and all samples so taken shall also be
sealed with a seal of the officer-in-charge of the
police station.
xxx xxx xxx"
5. So far as violation of the Section 55 of the
NDPS Act is concerned, the learned Special Judge
observed thus;
"XXX XXX XXX
14. It is also the duty of the prosecution to prove
through evidence that the contraband found in
the search are in safe custody and then it was
brought to the court from which sample is to be
drawn. In this case as stated above, none of the
official witnesses, except the informant has
deposed about sealing the contraband ganja by
brass seal of the informant.
XXX XXX XXX"
6. Referring to such finding of the learned Special
Judge, it is submitted by the learned counsel for the
Petitioner that in view of the same, custodial
interrogation of the Petitioner is not warranted and he
ought not to be remanded to custody as charge sheet
has been filed.
7. Learned counsel for the Petitioner further
submits that the implication of the Petitioner is on
account of co-accused statement and since the co-
accused have been acquitted, the Petitioner ought not
to be taken into custody.
8. Such submission is opposed by the learned
counsel for the State, Mr. Panigrahi, inter alia, on the
ground that the charge sheet is filed under Sections
20(b)(ii)C and 29 of NDPS Act citing the Petitioner as
accused and his status has been shown as absconder
and so far as the trial is concerned, it is trite that the
evidence on record is qua the co-accused, who faced
trial and as such, the same ought not to ennure to
the benefit of the accused like the Petitioner who is
absconder. Hence, seeks dismissal of the ABLAPL. He
also relies on the bar under Section 37(1)(b)(ii) of
the NDPS Act to resist the prayer of the Petitioner. In
this context learned counsel for the State relies on
the dictum of the Apex Court in the case of State by
the Inspector of Police vrs. B. Ramu, 2024 SCC
OnLine SC 4073.
9. In the recent pronouncement, 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 has 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"
The rival submissions have to be evaluated on
the basis of clarificatory observation of the Apex
Court extracted hereinabove.
10. There is no cavil about the proposition of
evaluation of evidence qua the accused facing trial.
But, at the same time this Court cannot lose sight of
the special features of evidence on record in a case
under the NDPS Act in the light of the stipulations as
contained relating to safe custody of the contraband
as envisaged under Section 55 of the NDPS Act.
Ex-facie the violation of Section 55 of the
NDPS Act as noted by the learned Trial Court cannot
be confined to the accused, who is in custody, in view
of the unique nature of the statutory provisions of the
NDPS Act and in the factual matrix of the case at
hand.
11. As such, the submission of the learned State
counsel that the finding of the learned Trial Court
regarding the violations as noted qua the seized
contraband adverted to hereinabove, cannot be relied
upon by an absconding accused, has to be negated.
12. On a conspectus of the materials and
evidence, keeping in view the violations relating to
Section 55 of the NDPS Act as extracted above,
taking into account the basis of the implication being
on account of co-accused statement, such co-accused
having since been acquitted, in the light of the
Judgments of the Apex Court in the case of Tofan
Singh Vs. State of Tamil Nadu, reported in (2021)
4 SCC 1, 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 so as to ensure his presence in the trial,
subject to verification of criminal antecedent of any
nature.
13. The ABLAPL is accordingly disposed of.
(V. NARASINGH)
Judge
Orissa High Court, Cuttack,
Dated the 23rd October, 2025/Santoshi
Location: High Court of Orissa, Cuttack
