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IN THE HIGH COURT OF ORISSA
K.C. Jagadeb Roy, J.
SATYABRATA ` SARAT MALLIA AND ANOTHER - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Miscellaneous Case No. 1196 of 1991
Decided On : 04-10-1991
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36-A(1)(B), 36-D, 37, 50(1) - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 167(2) - CONSTITUTION OF INDIA - ARTICLE 21 - OFFENCES UNDER THE ACT ARE COGNISABLE AND NON-BAILABLE - CONDITIONS FOR GRANT OF BAIL - VIOLATION OF STATUTORY SAFEGUARDS - GROUNDS FOR RELEASE ON BAIL.
Fact of the Case:
The petitioners were arrested for allegedly possessing 7 grams of Brown sugar and a cash of Rs. 801/-. They were forwarded to the Court of the Sub-Divisional Judicial Magistrate, Bhubaneswar, who remanded them to the Court of the Sessions Judge, Puri. The Sessions Judge sent back the case record and accused persons to the Court of the SDJM, Bhubaneswar as no Special Court was established in Puri district to hear the cases under the N.D.P.S. Act. The petitioners were again produced before the SDJM, Bhubaneswar on 5-8-1991 and their application for bail was rejected. They filed another application before the SDJM, Bhubaneswar praying for their release as they were already in custody beyond 15 days, but the learned SDJM again rejected the said application. The petitioners then moved the Addl. Sessions Judge, Bhubaneswar in Criminal Misc. Case No. 391 of 1991 for bail who again passed the order on 4-9-1991 rejecting the bail application of the petitioners.
Finding of the Court:
The Court held that the provisions of Section 50(1) of the Act had not been followed. The State had shown nothing to the satisfaction of the Court that the officer conducted search of the accused persons and the scooter after the petitioners were informed that they had right to demand the search to be made in presence of a Magistrate or the Gazetted officer. Non-compliance of it was a clear violation of statutory safeguard allowed under the Act to the accused which may have a bearing in the final disposal of the case initiated against them. The Court further held that in view of violation of the statutory safeguards contained in Sec, 50(1) of the Act and in the absence of any other independent material to show that these petitioners were in conscious possession of the incriminating substance since the scooter which they were using was a borrowed one and belonged to someone else, the petitioners were entitled to be released on bail.
Issues: 1. Whether the provisions of Section 50(1) of the Act had been followed? 2. Whether the petitioners were entitled to be released on bail?
Ratio Decidendi: 1. The Court held that the provisions of Section 50(1) of the Act had not been followed. The State had shown nothing to the satisfaction of the Court that the officer conducted search of the accused persons and the scooter after the petitioners were informed that they had right to demand the search to be made in presence of a Magistrate or the Gazetted officer. Non-compliance of it was a clear violation of statutory safeguard allowed under the Act to the accused which may have a bearing in the final disposal of the case initiated against them. 2. The Court further held that in view of violation of the statutory safeguards contained in Sec, 50(1) of the Act and in the absence of any other independent material to show that these petitioners were in conscious possession of the incriminating substance since the scooter which they were using was a borrowed one and belonged to someone else, the petitioners were entitled to be released on bail.
Final Decision: The Court allowed each of the petitioners to be released on bail of Rs. 20,000/- (Twenty thousand) each with two sureties for the like amount to the satisfaction of the Addl. Sessions Judge, Bhubaneswar.
ORDER
K.C. Jagadeb Roy, J. - These two petitioners have preferred this application for bail u/s 439 Cr.P.C. the short facts of the prosecution case are as follows :
2. The Sub-Inspector of Police, Balianta police station lodged an F.I.R. before the Officer-in-Charge, Balianta police station at 2 A.M. on 3-8-1991 alleging that the present petitioners while going on a Bajaj scooter bearing registration No. ORB-6970 were searched at Balianta bazar at 12.30 A.M. that night and a cash of Rs. 801/- was found with the accused persons besides 7 grams of Brown sugar was found in the dikky of the scooter. On 3-6-1991 itself the accused persons were forwarded to the Court of the Sub-Divisional Judicial Magistrate, Bhubaneswar on the aflegation of having committed the offence under Secs. 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The SDJM for- warded the petitioners to the Court of the Sessions Judge, Puri who sent back the case record and accused persons to the Court of the SDJM, Bhubaneswar to deal with the case as no Special Court was established in Puri district to hear the cases under the N.D.P.S. Act. On remand the accused persons were again produced before the SDJM, Bhubaneswar on 5-8- 1991 and the application of the accused persons for bail was moved before the learned SDJM who rejected it on . the ground that the offences are exclusively triable by the Special Court against which order the petitioners preferred a Criminal Misc. Case bearing No. 330 of 199 I before the learned Addl. Sessions Judge, Bhubaneswar which was also rejected on 23-8-1991. On 26-8-1991 the accused persons again filed another application before the SDJM, Bhubaneswar praying for their release as they were already in custody beyond 15 days, but the learned SDJM again rejected the said application on the ground that the decision of this Court reported in 1991 (1) OLR 549 (Sauti Jena and Anr. v. State) cited by the petitioners had no application to the present case as the referred case related to Cuttack district where there is Special Court, but in the district of Puri there being no Special Court for hearing of the cases under the N.D.P.S. Act, 1985, the directions indicated in that case had no application to the present case. The petitioners again moved the learned Addl. Sessions Judge, Bhubaneswar in Criminal Misc. Case No. 391 of 1991 for bail who again passed the order on 4-9-1991 rejecting the bail application of the petitioners. Finding no other alternative the petitioners have moved this Court for bail.
3. Heard the learned counsel for both the petitioners and the State at length. The facts as alleged in this petition have not been challenged by the State. As it appears from the petition for bail, the petitioners have urged that the incriminating materials that was found in the dikky of the scooter had not yet been examined chemically. There was no conscious possession of the materials as the scooter belongs to another person by name Harekrishna Mallia from whom the petitioner No. 1 had borrowed it for visiting some relations in a distant village and while returning from that village the scooter was searched and the material was found. They had no mens rea for the offence or knowledge of having Brown Sugar in the dikky and have not committed the offence u/s 21 of the Act. The seizure of the incriminating material was made in violation of the procedure mandatorify required under the Act to be followed at the time of seizure as contained in Sec, 50 of the Act which resulted in making the seizure illegal which is fatal for the prosecution as this by itself will be a ground far their acquittal. It was further argued on behalf of the petitioners that in view of the provisions contained in Section 36-A(1)(b) of the Act, the petitioners could not be held in custody for a period more than 15 days after they were presented before the Judicial Magistrate in connection with the offence committed under the Act and their detention was autho
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