AFR IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.8586 of 2024 Rabin Tyagi@ Ravin Tyagi …. Petitioner Mr. Shyam Manohar, Advocate -

-Versus State of Odisha …. Opposite Party Mr. P.K. Ray, AGA CORAM:

JUSTICE R.K. PATTANAIK DATE OF ORDER:19.02.2025

1. Instant petition under Section 483 BNS is pressed into service for release of the petitioner on bail in connection with Malkangiri P.S. Case No.167 of 2023 registered under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act corresponding to G.R. Case No.90 of 2023 pending in the file of learned Sessions Judge-cum-Special Judge, Malkangiri on the grounds stated therein.

2. Heard Mr. Manohar, learned counsel for the petitioner and Mr. Ray, learned AGA for the State.

3. The release of the petitioner is pleaded principally on the following grounds, such as:

(i)nowhere, in the F.I.R., it is mentioned that the Executive Magistrate and so-called independent witnesses arrived at the spot for the alleged search and seizure; nor their names indicated therein, hence, the investigation appears to be tainted;

(ii) investigation has not revealed the source and destination of the seized contraband Ganja;

(iii)inasmuch as, no custodial interrogation has been resorted to nor any statement under Section 67 of the NDPS Act was recorded and only upon an inference drawn, the petitioner has been implicated being an outsider;

(iv)the remand of the petitioner is in complete disregard to the Constitutional mandate guaranteed under Article 22 and the dictum of the Apex Court in Prabir Purkayastha Vs. State (NCT of Delhi) in SLP (Crl.) No. 42896 of 2023;

(v) prior information was not reduced into writing and ever informed to the immediate superior officer not being borne out of the record and hence, there is no compliance of Section 42 of the NDPS Act a statutory requirement;

(vi) complete infraction of Section 50 of the NDPS Act as the personal search of the petitioner was not conducted in terms thereof;

(vii)the sample of the contraband was not properly resealed and hence, Section 55 of the NDPS Act is not complied with;

(viii)the petitioner is having no similar antecedent;

and lastly, (ix)inference under Section 114(g) of the Indian Evidence Act is to be drawn against the prosecution as there is no material on record to show the CDR details annexed to the chargesheet, at least, to establish the presence of the petitioner at the alleged place of search and seizure.

4. Mr. Manohar, learned counsel for the petitioner would submit that the report was lodged and a case stood registered on 26^th March, 2023 at about 3.40 P.M., whereas, the alleged detection was held at 11.40 A.M. and therefore, the details of the Executive Magistrate and independent witnesses claimed to be present at the spot with their names should have been reflected in the F.I.R. It is submitted that all such formalities were concluded at about 2.30 P.M. and at last, the F.I.R. was drawn and lodged at 3.40 P.M., therefore, all details regarding the search and seizure were to be mentioned therein. Mr. Manohar, learned counsel further submits that there has been non-compliance of Sections 42 and 50 of the NDPS Act, as after the information was received, the paraphernalia necessary to reduce such information into writing with an intimation to the superior authority was not complied with nor was the petitioner given any option to be searched in the immediate presence of the Executive Magistrate since not described in the F.I.R. In such view of the matter, it is finally contended by Mr. Manohar, learned counsel that as the fundamental procedure has not been followed vis-à-vis search and seizure and even from the inception, the petitioner, though an outsider but for having no other similar criminal antecedent, should be granted bail.

5. In course of hearing, Mr. Manohar, learned counsel for the petitioner referred to the following decisions, such as, Manish Sisodia Vrs. Directorate of Enforcement decided on 9^th August, 2024 in SLP(Criminal) No.8781 of 2024; Dire