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IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No.13596 of 2025

Bharat Behera @ Bharat … Petitioner

Chandra Behera

Mr. S.K. Sahu, Advocate

-versus-

State of Orissa … Opposite Party

Mr. M.R. Patra, Addl. PP

CORAM:

JUSTICE G. SATAPATHY

ORDER(ORAL)

Order No. 24.12.2025

01. 1. This matter is taken up through Hybrid

Arrangement (Virtual/Physical Mode).

2. This is a bail application U/S.483 of BNSS by

the petitioner for grant of bail in connection with

Berhampur PS Case No.85 of 2021 corresponding to GR

Case No.13(A)/2021(N) pending in the file of learned

2^nd Addl. Sessions Judge-cum-Special Judge,

Berhampur for commission of offences punishable

U/Ss.20(b)(ii)(C)/25 of NDPS Act, on the main

allegation of transporting 82Kgs of Contraband Ganja in

an Auto Rickshaw bearing Regd. No.OD-07-L-5988.

3. In the course of hearing, Mr. Swagat Kumar

Sahu, learned counsel for the petitioner submits that

there is total non-compliance of Sec.42, 50 & 52-A of

the NDPS Act, but the petitioner has been implicated in

this case on the basis of statement of co-accused. He

further submits that there is discrepancy in the color of

the bag containing contraband article in the seizure list

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and in the FIR and, therefore, the petitioner may kindly

be granted bail at least on the ground of parity, since

co-accused persons have granted bail. On the other

hand, Mr. M.R. Patra, learned Addl. PP, however,

strongly opposes the bail application of the petitioner

by contending inter alia that not only the petitioner has

absconded in this case, but also he remained elusive to

the police for around four year and the so called non-

compliance of Sec.42, 50 & 52-A of the NDPS Act are

matters of trial and cannot be taken into consideration

at the time of consideration of bail application. He

further submits that since the petitioner has not

satisfied the conditions of Sec.37 of NDPS Act, the

prayer for bail of the petitioner may kindly be rejected.

4. After having considered the rival submissions

upon perusal of record, there appear allegation against

the petitioner for transporting commercial quantity of

Contraband Ganja, along with co-accused persons, but

compliance of Sec.50 of NDPS Act being related to

personal search is not applicable to the case at hand.

Further, the compliance of Sec.42 & 52-A are question

of facts and can be gone into in the trial after evidence

being led. It is also observed by the Apex Court in

Narcotic Control Bureau Vrs. Kashif; (2024) SCC

Online SC 3848 that non-compliance Sec.52-A may

not enure to the benefit of the petitioner for grant of

bail. The relevant observation of the Apex Court in the

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aforesaid decision has been recorded in Paragraphs-8 &

24 which reads as under:-

“8. There has been consistent and persistent

view of this Court that in the NDPS cases, where

the offence is punishable with minimum

sentence of ten years, the accused shall

generally be not released on bail. Negation of

bail is the rule and its grant is an exception.

While considering the application for bail, the

court has to bear in mind the provisions of

Section 37 of the NDPS Act, which are

mandatory in nature. The recording of finding as

mandated in Section 37 is a sine qua non for

granting bail to the accused involved in the

offences under the said Act. Apart from the

granting opportunity of hearing to the Public

Prosecutor, the other two conditions i.e., (i) the

satisfaction of the court that there are

reasonable grounds for believing that the

accused is not guilty of the alleged offence and

that (ii) he is not likely to commit any offence

while on bail, are the cumulative and not

alternative conditions.

24. Sec. 52-A was inserted only for the

purpose of the early disposal of the seized

Contraband Drugs and Substances,

considering the hazardous nature, vulnerability

to theft, constraint of proper storage place etc.

There cannot be any two options on the issue

about the early disposal of the Contraband

Drugs and Substances, more particularly when

it was inserted to implement the provisions of

Interna