HIGH COURT OF ORISSA: CUTTACK

BLAPL No.9319 OF 2019

(In the matter of an application under Section 439 of the

Criminal Procedure Code, 1973)

Sanjit Jena @ Sanji and another & Petitioners

Versus

State of Odisha

& Opposite Party

For Petitioners

:

M/s. Akshaya Kumar Nayak &

T. Nayak

For Opposite Party

:

Mr. Karunakar Nayak,

Additional Standing Counsel

PRESENT

THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI

Date of Hearing: 17.02.2021 Date of judgment: 31.03.2021

1.

The petitioner has filed the instant application under

Section 439 of CrPC seeking bail in connection with P.R.

No.129/2018-19 dated 27.01.2019 corresponding to 2 (a) CC No.04

of 2019(N) pending before the Court of the learned Sessions Judge-

cum-Special Judge, Ganjam, Berhampur. The petitioner herein is

the accused in connection with alleged commission of offences

punishable under Section 20 (b) (ii) (C) of the N.D.P.S. Act.

2.

The case of the prosecution is that Ganja weighing 94 kgs

kept in four jerry bastas were recovered and seized from the

possession of the present petitioners (Narayan Jena and Sanjeet

Jena) while they along with two others were transporting the same

AFR

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in one sleek silver coloured Hyundai Xcent VTVT car bearing

registration No.OD-02AX-0206. The petitioners are in jail custody

since 27.01.2019 (i.e., the date of their arrest).

3.

Heard Mr. Akshaya Kumar Nayak, learned Counsel for the

petitioners and Mr. Karunakar Nayak, learned Additional Standing

Counsel for the State-opposite party and perused the case records.

4.

Learned counsel for the petitioners Mr. Akshaya Kumar

Nayak has contended that the court below has not properly

examined

the

question

of

exclusive

conscious

possession,

transportation, search, recovery, test, measure, seizure, drawing

samples and production of sample before the chemical examiner

without following due procedure and hence the order is dubious. He

has further contended that the case of prosecution regarding the

test and measurement of the seized 8ganja9 is completely doubtful as

no proper procedure was followed as the Inspector of Excise seems

to have identified the substance by smelling and without any

weighing machine. Moreover, no local witnesses were present during

the search and seizure. It has further been submitted that the

failure of the Inspector to produce the accused persons before the

Gazetted Officer or any Magistrate during the seizure of the alleged

8Ganja9 is a violation of Section 50 of the NDPS Act which is a

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mandatory provision of the said Act. Hence, the petitioners may be

granted bail.

5.

Learned counsel for the State submitted that the

contraband articles were seized by the raiding officer. It was not

possible to arrange the presence of a Magistrate at that point in

time. On search of dickey of the Car, the raiding officer recovered

four white coloured jari basta containing 8ganja9 weighing about 94

Kgs. Seizure lists have been prepared in the presence of the

witnesses and the seized vehicle was also kept in the office of the

EDC (SD), Berhampur.

6.

It is a settled position of law that Section 37(1) and 37(2) of

the NDPS Act shall be applicable in regard to a bail application only

when the seized contraband (Narcotic Drug or Psychotropic

Substance) is of commercial quantity. Several High Courts have

iterated the same in cases of Rajvir Singh @ Raju vs State of

Punjab¹ and Ranjeet Singh vs State². The Narcotic Drugs and

Psychotropic Substances (Amendment) Act, 2001 introduced the

concept of "small quantity" and "commercial quantity" for the

purpose of imposing punishment. The punishment is graded as per

the quantity involved "small quantity", "commercial quantity" or an

intermediate quantity.

1CRM-M-35080 of 2018

2 CRL.A. No. 89/2011

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7.

The Central Government in the Ministry of Finance

(Department of Revenue