Nilakantha Sahu vs State Of Odisha

S.K. Sahoo, J

I.A. No. 1459 of 2019

This matter is taken up by video conferencing mode. This is an application for grant of bail under section 389 of the Code of Criminal Procedure.

Heard learned counsel for the appellant and learned counsel for the State.

The appellant-petitioner Nilakantha Sahu has been convicted under section 15(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in

short, ‘N.D.P.S. Act’) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (one lakh)

and in default, to undergo rigorous imprisonment for a further period of one year by the learned Special Judge -cum- Addl. Sessions Judge, Khallikote

vide judgment and order dated 5th August 2019 in 2(a) C.C. No. 21 of 2019 (N)/ 2(a) C.C. No 05 of 2015 (N)(T).

Mr. S.K. Bhanjadeo, learned counsel for the petitioner Nilakantha Sahu contended that the petitioner was on bail during trial and he has never

misutilized his liberty and after his conviction, he is in judicial custody since 05.08.2019 and there is no likelihood of the appeal being taken up for

hearing in the near future. It is further contended that out of three witnesses examined by the prosecution, P.W.1 has not supported the prosecution

case and there are discrepancies in the evidence of P.W.2 and P.W.3, who are official witnesses and the independent witnesses available at the

scene of occurrence were not examined and there is no clinching evidence that the contraband articles were seized from the exclusive and conscious

possession of the petitioner and therefore, the bail application of the petitioner may be favouraly considered.

Learned counsel for the State, on the other hand, opposed the prayer for bail and submitted that even though the independent witness (P.W.1) has not

supported the prosecution case and has been declared hostile, but the evidence of the two official witnesses are very clear and clinching and the

learned trial Court has rightly relied upon their evidence and convicted the petitioner.

Perused the impugned judgment.

It appears that after analyzing the evidence on record, the learned trial Court has given a finding that the evidence of P.W.2 and P.W.3 is that the

petitioner was found sitting by the side of NH at Huma Chhak and two gunny bags emitting smell of opium were placed besides him and on search, it

was found to be 51 (fifty one) kgs. of puppy hush/ puppy straws. It was further held by the learned trial Court that if the evidence of P.W.2 and

P.W.3 and Ext.1 to Ext. 18 are taken together, it would show that the prosecution has successfully proved that the two gunny bags containing 51 (fifty

one) kgs. of puppy hush/ puppy straws were seized from the exclusive and conscious possession of the petitioner. It was further held that there is no

evidence that besides the petitioner, any other persons were present at the scene of occurrence and the petitioner had complete control and dominion

over the contraband articles, which were seized from his exclusive and conscious possession.

Law is well settled that while granting bail to an accused in a criminal appeal who is convicted for an offence under the N.D.P.S. Act, which involves

commercial quantity, the mandatory provisions of section 37 of the N.D.P.S. Act cannot be ignored. A Court while exercising its appellate jurisdiction

under section 389 of Cr.P.C. must follow the provisions under section 37 of the N.D.P.S. Act while considering the application for bail as such

provision is mandatory in nature and grant of bail is controlled by such provision, which has an overriding effect over other provisions of the Code of

Criminal Procedure. Obviously, the limitations imposed by sub-clauses (i) and (ii) of clause (b) of sub-section (1) of section 37 of the N.D.P.S. Act

would come into play when the appellant is convicted under sections 19 or 24 or 27-A of the N.D.P.S. Act or when the offence committed involves

commercial quantity.

In this case, the contraband puppy hush/ puppy straws stated to have been seized from the exclusive and conscious possession of the petitioner was

51 (fifty one) kgs., which comes within the commercial quantity.

After hearing the learned counsel for both the parties and on going through the evidence on record and the impugned judgment, I am of the humble

view that the petitioner has failed to satisfy the conditions as provided under section 37 of the N.D.P.S. Act.

In view of the available materials on record, the nature and gravity of accusation against the petitioner, the quantity of contraband articles seized and

the bar under section 37 of the N.D.P.S. Act, I am not inclined to release him on bail.

Accordingly, prayer for bail stands rejected and I.A. is dismissed.

The petitioner is at liberty to renew his prayer for bail after serving half of the substantive sentence if the appeal is not ready for hearing.

I.A. No. 1460 of 2019

Heard.

There shall be stay of realization of fine.

I.A. is accordingly disposed of.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available

in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No. 4587 dated 25th March 2020 as modified by Court’s Notice No. 4798 dated 15th April 2021.

……………………….