IMPORTANT POINT
The absence of recovery from the accused's possession under the NDPS Act can lead to the applicability of bail provisions, overriding the restrictions typically imposed by Section 37.

ORDER

Aditya Kumar Mohapatra, J.

This matter is taken up through Hybrid mode.

2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State.

3. This is an application under Section 439 of the Code of Criminal Procedure filed by the Petitioner for bail in connection with Khordha P.S. Case No. 84 of 2024 corresponding to T.R. Case No. 14 of 2024 pending in the Court of the learned 1st Addl. Sessions-cum-Special Judge under NDPS Act, Khurda, for alleged commission of offence under Sections 21(C)/29 of the NDPS Act, 1984.

4. Learned counsel for the Petitioner submits that earlier this matter was not before any other Bench of this Court. It is submitted by the learned counsel for the Petitioner that the Petitioner is in custody since 19.02.2024. He further contended that investigation has progressed substantially and the charge sheet is likely to be filed very soon. It was further submitted as per the allegation of the FIR, no recovery has been made from the conscious and exclusive possession of the Petitioner. He further contended that 252 grams of brown sugar was recovered from the possession of one Laxmidhar Sahoo @ Lucky and 10 grams of brown sugar recovered from one Sk. Jafar @ Babu. It is further contended that some of the co-accused persons have already been released on bail including Sk. Jafar @ Bau from his possession 10 gram brown sugar was recovered. He further contended that the Petitioner has no similar criminal antecedent. Further it is submitted that the Petitioner has been arrested merely on the basis of statement of the co-accused. It was also contended that the bar under Section 37 is not attracted to the present case since no recovery has been made from the conscious and exclusive possession of the Petitioner. In such view of the matter, learned counsel for the Petitioner submitted that the Petitioner be released on bail on such terms and conditions as this Court deems fit and proper in the facts and circumstances of the case.

5. Learned Additional Standing Counsel, on the other hand, opposed the bail application of the Petitioner on the ground that the Petitioner is released on bail there is a possibility he might indulge in similar criminal offences. He further contended that the cases of illegal transportation of contraband article are on rise in State of Orissa now-a-days. Therefore, no leniency should be shown to the accused persons who are involved in such type of offence. Accordingly, it was prayed that the prayer for bail of the Petitioner be rejected at this juncture.

6. Having heard learned counsel for the respective parties and on careful consideration of the surrounding facts as well as materials on record, further taking into consideration the period of detention, and the fact that no recovery was made from the conscious and exclusive possession of the Petitioner, the bar under Section 37 of the N.D.P.S. Act would not be attracted to the present case, this Court is inclined to release the Petitioners on bail.

7. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.40,000/-(Rupees forty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned court in seisin over the matter. The release of the Petitioner shall also be subject to the following terms and conditions:-

I) He shall not indulge in similar criminal offences while on bail;

II) He shall cooperate with investigation and shall appear before the I.O. as and when his presence is required for the purpose of investigation; and

III) He shall appear before the trial court on each and every date of posting of the case; and

IV) He shall appear before the concerned Police Station once in a fortnight for a period of three month, thereafter once in a month, preferably on 'Sunday' in between 10.00 A.M to 1.00 PM., till conclusion of the trial.

Violation of any of the terms and conditions shall entail cancellation of bail.

8.