2. The Petitioner is seeking pre-arrest bail in
connection with Special (NDPS) Case No.15(B) of 2021
pending on the file of learned District and Sessions
Judge-cum-Special Judge (NDPS), Bhadrak, arising out
of Special Task Force (Crime Branch) P.S. Case No.05
of 2021 for commission of offences punishable under
Sections 21(c)1 and 292 of NDPS Act.
21. Punishment for contravention in relation to manufactured drugs and
preparations.-- Whoever, in contravention of any provision of this Act or any rule or order
made or condition of licence granted thereunder, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or uses any manufactured drug or any
preparation containing any manufactured drug shall be punishable,-- (a) xxx xxx
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a
term which shall not be less than ten years but which may extend to twenty years, and shall
also be liable to fine which shall not be less than one lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a
fine exceeding two lakh rupees.
29. Punishment for abetment and criminal conspiracy.--(1) Whoever abets, or is a
party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall,
whether such offence be or be not committed in consequence of such abetment or in
pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116
of the Indian Penal Code (45 of 1860)1, be punishable with the punishment provided for the
offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the
meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the
commission of any act in a place without and beyond India which--
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic
substances having all the legal conditions required to constitute it such an offence the same
3. The allegation against the present Petitioner is
that he along with one of the co-accused, namely, Mir
Minhaj Quadri, were involved in the trade and
transportation of the contraband (Brown Sugar) to the
tune of 1kg 140grms.
4. It is apt to note that it is the case of the
prosecution that the co-accused, namely, Mir Minhaj
Quadri, was nabbed along with the contraband and
charge sheet is filed against him and the basis of the
implication of the Petitioner is on account of the
statement of the said co-accused and as such the
Petitioner was cited as an absconder in the charge
sheet.
5. It is submitted by the learned counsel for the
Petitioner that the co-accused, namely, Mir Minhaj
Quadri, who faced trial was acquitted by judgment
dated 26.06.2024 by the learned Special Judge,
Bhadrak in Special Case No.15 of 2021 and the
attention of this Court is drawn to the grounds of
acquittal, which for convenience of reference is culled
out hereunder:-
"(i) non-compliance of mandatory provisions of
Sec.42(2)3, 50(6)4 of the NDPS Act, 1985.
(ii) non-compliance of directory provisions of
Sec. 52A5, 556, 577 & 678 of the NDPS Act.
as or analogous to the legal conditions required to constitute it an offence punishable under
this Chapter, if committed within India.
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
xxx xxx 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.
50. Conditions under which search of persons shall be conducted.-- xxx
xxx xxx
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for
such belief which necessitated such search and within seventy-two hours send a copy thereof
to his immediate official superior.
(iii) non-examination of any person from the
office of the STF, CID CB, Bhubaneswar.
(iv) non-production of Malkhana Register
before the court.
(v) handing over the so called used brass seal
to the zima of independent witness and non-
production of the same.
(vi) non-certification of inventory seizure by
the Executive Magistrate.
(vii) non-production of brass seal before the
SDJM, Bhadrak at the time of production of
seized contraband article
52-A. Disposal of seized narcotic drugs and psychotropic substances.--(1) The
Central Government may, having regard to the hazardous nature of any narcotic drugs or
psychotropic substances their vulnerability to theft, substitution, constraints of proper storage
space or any other relevant considerations, by notification published in the Official Gazette,
specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of
psychotropic substances which shall as soon as may be after their seizure, be disposed of by
such officer and in such manner as that Government may, from time to time, determine after
following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the
officer-in-charge of the nearest police station or to the officer empowered under Section 53,
the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or
psychotropic substances containing such details relating to their description, quality, quantity,
mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or
psychotropic substances or the packing in which they are packed, country of origin and other
particulars as the officer referred to in sub-section (1) may consider relevant to the identity of
the narcotic drugs or psychotropic substances in any proceedings under this Act and make an
application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and
certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of
such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may
be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the
Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act,
shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and
any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary
evidence in respect of such offence.
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.
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.
67. Power to call for information, etc.--Any officer referred to in Section 42 who is
authorised in this behalf by the Central Government or a State Government may, during the
course of any enquiry in connection with the contravention of any provision of this Act--
(a) call for information from any person for the purpose of satisfying himself whether there
has been any contravention of the provisions of this Act or any rule or order made
thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the
enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
(viii) discrepancy in the evidence of
prosecution witnesses regarding seizure of -
vehicle in question."
6. And, referring to the discrepancies as noted by
the learned trial Court, it is submitted by the learned
counsel for the Petitioner that so far as the violation of
mandatory provisions contained in Section 50(6)4 of
NDPS Act is concerned, it applies in equal measure to
the present Petitioner so also the non-compliance of the
directory provisions and it is asserted with vehemence
that the time tested view that the evidence on record
relates to an accused who has faced trial cannot be
mechanically read into an allegation under the NDPS
Act, taking into account the peculiar nature of the
allegations.
7. Hence, referring to the same and the patent
discrepancies in the evidence of prosecution witnesses
as noted by the trial Court regarding seizure of the
vehicle in question, which has been stated as (viii) as
above, learned counsel for the Petitioner refers to the
Paragraph-26 of the said judgment. The same is
extracted hereunder for convenience of reference:-
xxx xxx xxx
"26. Furthermore, there is discrepancy in the
evidence of official witness as regards to the
seizure of vehicle and its registration number in
question. PW-3 has stated seizure of apache
vehicle. In cross-examination he has stated the
registration number of apache was OD-220-
6808. PW-4 has stated one Honda Activa Scooty
bearing registration no.OD-22G-6809 was
seized. He further stated no contraband article
has been seized from any motor cycle and the
dickey of the scooty was locked. In his evidence
he stated one motor cycle another scooty. PW-5
has stated a scooty was seized but does not say
any registration number. In cross-examination
he has stated that the registration number is
OD-02G 6809. PW-8 the informant stated one
Honda Activa bearing registration no.OD-22G-
6809 was seized. PW-9 has stated Honda
scooter bearing registration no.OD-220-6809
was seized. Here in this case at hand, all the
witnesses of prosecution are police official
including Executive Magistrate. But on close
scrutiny of their evidence going to show that
they have stated the alleged seizure of motor
cycle in different manner with different
registration number. If this being the evidence
and they have performed patrolling duty with
same time and place and deposed different
vehicle with registration number-naturally doubt
generates in mind about the genuineness of the
prosecution case."
xxx xxx xxx
8. Learned counsel for the State opposes the
prayer for pre-arrest bail.
9. It is trite that the evidence adduced in a trial is
applicable qua the accused who is in the dock and it
has limited application for the accused, who has not
faced trial. But this Court cannot lose sight of the
special features of the NDPS Act, in which the seizure is
of great significance and it needs to emphasize that the
finding regarding seizure in a trial cannot be ignore only
because the accused is an absconder and has not faced
trial. The Apex Court has reiterated times without
number, keeping in view the stringent provisions of the
NDPS Act, the materials against the accused persons
deserve greater scrutiny also in view of the twin
embargos even for granting bail as per the legislative
intent contained in Section 37(1)(b)(ii)9 of NDPS Act.
10. It is submitted by the learned counsel for the
State that admittedly the Petitioner is an absconder and
the violations of most of the provisions for which the
co-accused has been acquitted are directory in nature.
Hence, their violation cannot be a ground to grant the
exceptional remedy for pre-arrest bail.
11. The rival submissions have been considered on
the anvil of the latest judgment of the Apex Court in
the case of Satendra Kumar Antil Vrs. Central
Bureau of Investigation10, wherein adopting the
doctrine of continuing mandamus, the Apex Court has
clarified that pre-arrest bail is another facet of bail
granted to an accused in custody and has succinctly
stated that the anticipatory bail is a species of bail
granted to an accused in custody. Hence, the
consideration cannot vary and with respect it is noted
that there is no embargo in considering an accusation
under the Special Act on the touchstone of the
principles as laid down in the case of Satendra Kumar
Antil (Supra).
37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974),--(a) xxx xxx
(b) no person accused of an offence punishable for 2[offences under Section 19 or Section 24
or Section 27-A and also for offences involving commercial quantity] shall be released on bail
or on his own bond unless--
(i) xxx xxx
(ii) where the Public Prosecutor oppose 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.
(2) xxx xxx
Satender Kumar Antil v. CBI, 2023 SCC OnLine SC 452
12. On considering the materials on record referring
to the discrepancies in evidence relating to the violation
of mandatory provisions under Section 50(6)4 of the
NDPS Act as well as the other discrepancies and the
statements of the official witnesses which cast a serious
doubt regarding the very seizure of the contraband and
keeping in view that the sole basis of accusation
against the Petitioner is on account of the co-accused
statement, who has since been acquitted, as noted, and
taking into account that the Petitioner does not have
any criminal proclivity as borne out from the affidavit
which is on record. This Court is persuaded to hold that
the Petitioner successfully negotiated the twin hurdles
envisaged under Section 37(1)(b)(ii)9 of NDPS Act. And
hence, it is directed 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 subject to verification
of criminal antecedent.
13. If it comes to the fore that the Petitioner has
any criminal antecedent, this order shall not be given
effect to.
14. It is needless to state that the Petitioner shall
cooperate with the ongoing investigation.
15. Accordingly, the ABLAPL stands disposed of.
(V. NARASINGH)
Judge
Location: High Court of Orissa
Date: 09-Jan-2026 17:23:05
