IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.9296 of 2025 Subham Sanjay Sonawale … Petitioner Mr. D. Mishra, Advocate -versus-

State of Odisha … Opposite Party Mr. R.B. Mishra, Addl. PP CORAM:

JUSTICE G. SATAPATHY

ORDER(ORAL)

Order No. 1 5.12.2025

03. 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 GR Case No. 70 of 2023 arising out of Mohana PS Case No. 106 of 2023 pending in the Court of learned Sessions Judge-cum-Special Judge, Parlakhemundi for commission of offences punishable U/Ss. 20(b)(ii)(C)/ 25/29 of the NDPS Act, on the main allegation of transporting 1178 Kgs and 600 Grams of Contraband Ganja in a Truck bearing Regd. No. MH-50-N-0299.

3. In the course of argument, Mr. Dayanidhi Mishra, learned counsel for the Petitioner highlights the following points for grant of bail to the Petitioners:-

(i) Long detention of the Petitioner for two and half years in custody would wash off the conditions of Sec. 37 of NDPS Act;

(ii) Non-involvement of the private witness to seizure of the Contraband article would render the recovery vitiated and (iii) Lastly, the witnesses are not supporting the prosecution allegation against the Petitioner.

3.1. On the other hand, Mr. R.B.Mishra, learned Addl. Public Prosecutor by relying upon Sec. 37 of NDPS Act submits to reject the bail application of the Petitioner.

4. After having considered the rival submissions upon perusal of record, there appears allegation against the Petitioner for transporting 1178 Kgs and 600 Grams of Contraband Ganja, which is much more than the commercial quantity in a Truck, but the plea as advanced by the Petitioner for delay in disposal of the case would not make him liable to satisfy the conditions of Sec. 37 of NDPS Act merits no consideration since delay in disposal of the case is not a ground to dispense with the Petitioner for satisfying the conditions of Sec. 37 of NDPS Act as held by the Apex Court in Union of India vrs Vigin K. Varghese; (2025) LiveLaw (SC) 1101, wherein the Apex Court while allowing an appeal of Union of India by setting aside the order of grant of bail to the accused therein has held thus:-

“17.The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii) which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution’s assertions of operative control and antecedent involvement , risks trenching upon appreciation of evidence which would be in the domain of trial court at first instance”.

5. In addition, the Apex Court in a very recent decision in JOTHI @ NAGAJOTHI VRS. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE; 2025 LIVE LAW (SC) 1197 has held that the involvement of the private witness to the seizure of Contraband article is not mandatory and the relevant observation of the Apex Court in paragraph-21 of such decision is as under:-

“21. This Court has consistently held that the non-examination of independent witnesses is not, by itself, fatal to the prosecution, particularly in prosecutions under the NDPS Act where operations often take place under challenging circumstances. In Surinder Kumar v. State of Punjab (2020 (2) SCC 563), this Court reiterated that the mere absence of independent witnesses does not lead to the conclusion that the accused has been falsely implicated. Referring to Jarnail Singh v. State of Punjab ((2011) 3 SCC 521), the Court underscored that the testimony of official witnesses cannot be discarded solely on the ground of their official status