Orissa High Court
Gunjan Mahadeo Adsul vs State Of Odisha ... Opposite Party on 23 September, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL NO.6041 of 2025
(In the matter of application under Section 483 of
BNSS, 2023).
Gunjan Mahadeo Adsul ... Petitioner
-versus-
State of Odisha ... Opposite Party
For Petitioner : Mr. A. Biswal, Advocate
For Opposite Party : Mr. C. Mohanty, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING & JUDGMENT:23.09.2025(ORAL)
G. Satapathy, J.
1. This is a bail application U/S.483 of BNSS
by the petitioner for grant of bail in connection with
Mohana PS Case No.106 of 2023 corresponding to GR
Case No.70 of 2023 pending in the file of learned
Sessions Judge-cum-Special Judge, Parlakhemundi,
Dist-Gajapati, for commission of offences punishable
U/S.20(b)(ii)(C) of NDPS Act, on the allegation of
transporting 1773Kgs 200Grams of Contraband Ganja
in a Truck bearing Regd. No.MH-50-N-0299.
2. In the course of hearing, Mr. Amit Biswal,
learned counsel for the petitioner by referring to the
written notes of submission filed for the petitioner
submits that there is total non-compliance of Sections
42 and 50 of NDPS Act and, thereby, the prosecution
against the petitioner being vitiated, he may kindly be
granted bail.
2.1. On the other hand, Mr. C. Mohanty,
learned Additional Public Prosecutor while opposing the
prayer for bail of the petitioner submits that compliance
of Section 50 of NDPS Act is not applicable to this case
in hand as the Contraband articles were found
recovered from the vehicle, but not from the personal
search and Section 42 of NDPS Act although mandatory
should not be allowed to misuse the provision to
protect the drug peddlers like the petitioner, who is
prima facie found to have transported such a huge
quantity of Contraband Ganja and, therefore, the
petitioner is not entitled to bail. On the aforesaid
submission, Mr. Mohanty prays to reject the bail
application of the petitioner.
3. After having considered the rival
submissions upon perusal of record, there appears
allegation against the petitioner for transporting
1773Kgs 200Grams of Contraband Ganja in a Truck,
but fact remains as to whether there was total non-
compliance of Sections 42 and 50 of NDPS Act,
however, such compliances of the provision of Sections
42 and 50 of NDPS Act are question of facts and can be
gone into in the trial after full-fledged evidence is being
led. In this regard, this Court is fortified with the
decision of the Apex Court in Karnail Singh Vrs. State
of Haryana; (2009) 8 SCC 539 wherein while
answering a reference as to whether compliance of
Section 42 is mandatory or not and substantial
compliance is sufficient; a five Judges Bench of the
Apex Court recorded its conclusion in Paragraph-35 and
the relevant observation as stated therein at Paragraph
35 (d), is extracted as under:-
"(d). While total non-compliance with
requirements of sub-sections (1) and (2)
of section 42 is impermissible, delayed
compliance with satisfactory explanation
about the delay will be acceptable compliance
with section 42. To illustrate, if any delay
may result in the accused escaping or the
goods or evidence being destroyed or
removed, not recording in writing the
information received, before initiating action,
or non-sending of a copy of such information
to the official superior forthwith, may not be
treated as violation of section 42. But if the
information was received when the police
officer was in the police station with sufficient
time to take action, and if the police officer
fails to record in writing the information
received, or fails to send a copy thereof, to
the official superior, then it will be a
suspicious circumstance being a clear
violation of section 42 of the Act. Similarly,
where the police officer does not record the
information at all, and does not inform the
official superior at all, then also it will be a
clear violation of section 42 of the Act.
Whether there is adequate or substantial
compliance with section 42 or not is a
question of fact to be decided in each
case. The above position got strengthened
with the amendment to section 42 by Act 9 of
2001."
4. In Karnail Singh(supra), the Apex Court
in Paragraph-34 has further held that:-
"34. xx xx xx "these provisions
should not be misused by the
wrongdoers/offenders as a major
ground for acquittal. Consequently,
these provisions should be taken as
discretionary measure which should
check the misuse of the Act, rather than
providing an escape to the hardened
drug-peddlers."
5. True it is that Section 50 of NDPS Act
relates to personal search of a person, but not to the
premises or conveyance as held by the Apex Court in
State of Punjab Vrs. Baldev Singh; (1999) 6 SCC
172 wherein the Apex Court at Paragraphs-12 & 57(5)
which reads 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.
57(5). Whether or not the safeguards
provided in Section 50 have been duly
observed would have to be determined by the
Court on the basis of evidence led at the
trial."
6. On a plain reading of the aforesaid
precedents as set out by the Apex Court, it appears
that whether there is adequate or substantial
compliance of Section 42 of the NDPS Act is a question
of fact to be decided in each case and such non-
compliance may not vitiate the trial, if it does not cause
any prejudice to the accused and the provision should
be taken as a discretionary measure which should
check the misuse the act, rather than providing an
escape route to the hardened drug-peddlers and,
therefore, the non-compliance or compliance can be
precisely ascertained at the stage of trial when full-
fledged evidence is led before the Court and it would
not be possible to ascertain meticulously the
compliance or non-compliance of Section 42 of NDPS
Act at this stage of granting bail, particularly in absence
of the evidence. In the present bail application, the
petitioner has only annexed the copy of the FIR and
copy of charge-sheet, but without any further
documents and statement of witnesses. Besides, the
petitioner has only enclosed the copy of impugned
order, wherein it appears that the petitioner has not set
up any plea of non-compliance of Sections 42 & 50 of
NDPS Act so as to be addressed by the learned trial
Court.
7. For grant or refusal of bail for commission
of offence case under NDPS Act involving commercial
quantity is governed by Section 37 of NDPS Act and
Section 37(1)(b)(ii) of NDPS Act prescribes that no
person accused of an offence under NDPS Act involving
commercial quantity shall be released on bail, if the
public prosecutor opposes such bail application; unless
the Court is satisfied there are reasonable grounds for
believing that the accused is not guilty of such offence
and he is not likely to commit any offence while on bail.
On a careful conspectus of materials placed on record
together with the recovery and seizure of 1773Kgs
200Grams of Contraband Ganja which is much more
than the commercial quantity from the Truck allegedly
in occupation of the petitioner at the time of detection,
this Court considers that the accused has not been able
to satisfy the conditions of Section 37 of NDPS Act,
which is sine qua non for grant of bail. In the aforesaid
premises and taking into account the seizure and
recovery of such a huge quantity of Contraband Ganja,
which is much more than the commercial quantity and
the impact of crime on society, this Court is not inclined
to grant bail to the petitioner.
8. Hence, the bail application of the petitioner
stands rejected. Accordingly, the BLAPL stands
disposed of.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 23rd day of September, 2025/Subhasmita
Location: High Court of Orissa
