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Orissa High Court
Bitu @ Bity Karei @ Bibhishana vs State Of Orissa ... Opposite Party on 2 February, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.11519 of 2025
Bitu @ Bity Karei @ Bibhishana ... Petitioner
Karei
Mr. A. Tripathy, Advocate
-versus-
State of Orissa ... Opposite Party
Mr. M.R. Patra, Addl. PP
JUSTICE G. SATAPATHY
ORDER(ORAL)
Order No. 02.02.2026
04. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical Mode).
2. This is a bail application U/S.483 of the BNSS
by the petitioner for grant of bail in connection with
Padampur PS Case No.49 of 2025 corresponding to
Special GR Case No.9 of 2025 pending in the Court of
learned Additional Sessions Judge, Padampur for
commission of offences punishable U/Ss.111(2)(b) of
BNS r/w Sections 21(C)/25/29 of the NDPS Act, on the
main allegation of possessing 619 ml. of Pentazocine
Injection and 174 bottles of WINCEREX Cough Syrup.
3. Heard, Mr. Amitav Tripathy, learned counsel for
the petitioner and Mr. M.R. Patra, learned Addl. Public
Prosecutor in the matter and perused the record.
4. The bail application of the petitioner was earlier
rejected by this Court in BLAPL No.3041 of 2025, but
the petitioner has not given any certificate about the
previous rejection of bail to him, however, the Apex
Court in Kusha Duruka Vrs. State of Odisha;
(2024) 4 SCC 432 has made it clear the following in
paragraph 22 which reads thus:-
"22. In our opinion, to avoid any confusion in
future it would be appropriate to mandatorily
mention in the application(s) filed for grant of
bail:
22.1. Details and copies of order(s) passed in
the earlier bail application(s) filed by the
petitioner which have been already decided.
22.2. Details of any bail application(s) filed by
the petitioner, which is pending either in any
court, below the court in question or the higher
court, and if none is pending, a clear statement
to that effect has to be made.
5. In addition, the petitioner is allegedly found
involved in the following cases as reported by the
learned State Counsel:-
"1. Padampur P.S Case No-141 dt.05.08.2016
U/s 272/273/274/275/276 R/W sec 2 of Orissa
Amendment Act 3 of 1999/34IPC/47(a) B&O
Excise Act/13 Drugs and cosmetic Act.
2. Padampur P.S case No-124 dt.25.06.2019
U/s 274/275/34 IPC.
3. Padampur PS Case No- 307 dt: 21.11.2022
U/s 274/275 IPC/52 (a) Odisha Excise Act.
4. Padampur PS Case No-181dt.07.07.2023 U/s
274/275/34 IPC.
5. Bolangir Town PS case No.-490 dt.
17.09.2023 U/s 21(b)/29 NDPS Act."
6. The petitioner has not disclosed about his
criminal antecedent in his bail application. Grant or
refusal of bail for offences under NDPS Act involving
commercial quantity is governed by Sec. 37 of NDPS
Act, but the criminal antecedents as shown against the
Petitioner which includes one case of similar nature
prima facie demonstrates that the petitioner has not
been able to satisfy the conditions of Sec. 37 of NDPS
Act. In this regard, this Court is fortified with the
decision of the Apex Court in State of Meghalaya Vrs.
Lalrintluanga Sailo; 2024 SCC Online SC 1751,
wherein the Apex Court in paragraph nos.9 and 10 has
held as under:-
"9. The materials on record would reveal that
earlier Smt. X was enlarged on bail by the High
Court as per order dated 27.06.2023 in
connection with FIR No.22(03)2023, involving
the quantity of 55.68 grams of Heroin,
despite the opposition of the public prosecutor,
taking note of her being HIV positive. In the
said order it is stated thus:-
"30. Accordingly, on this ground alone, the
application for grant of bail is hereby
allowed."
10. The subject FIR viz., FIR No. 06(02)23
under Section(s) 21(c)/29 of the NDPS Act,
would reveal that the quantity of the
contraband involved is 1.040 kgs of heroin.
The impugned order granting bail to accused-
Smt. X, dated 29.09.2023 would reveal, this
time also, the bail was granted on the ground
that she is suffering from HIV and
conspicuously, without adverting to the
mandate under Section 37(1)(b)(ii), NDPS Act,
even after taking note of the fact that the
rigour of Section 37, NDPS Act, calls for
consideration in view of the involvement of
commercial quantity of the contraband
substance. When the accused is involved in
offences under Section 21(c)/29 of NDPS
Act, more than one occasion and when the
quantity of the contraband substance viz.,
heroin is 1.040 Kgs, much above the
commercial quantity, then the non-
consideration of the provisions
under Section 37, NDPS Act, has to be
taken as a very serious lapse. In cases of
like nature, granting bail solely on the ground
mentioned, relying on the decision in Bhawani
Singh v. State of Rajasthan would not only go
against the spirit of the said decision but also
would give a wrong message to the society that
being a patient of such a disease is a license to
indulge in such serious offences with impunity.
In the contextual situation it is to be noted that
in Bhawani Singh's case the offence(s) involved
was not one under the NDPS Act. We have no
hesitation to say that in the above
circumstances it can only be held that the
twin conditions under Section 37 of the
NDPS Act, are not satisfied and on the sole
reason that the accused is a HIV patient,
cannot be a reason to enlarge her on bail.
Since the impugned order was passed
without adhering to the said provision and
in view of the rigour thereunder the
accused-Smt.X is not entitled to be
released on bail, the impugned order
invites interference.
7. In such view of the matter, the petitioner
having not satisfied the conditions of Sec. 37 of NDPS
Act, the prayer for bail of the petitioner merits no
consideration. Hence, the bail application of the
petitioner stands rejected.
8. Accordingly, the BLAPL stands disposed of. A
copy of this order be immediately transmitted to the
learned Court in seisin over the matter for reference.
Signed by: SUBHASMITA DAS Judge
Subhasmita
Location: High Court of Orissa
