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Judgment
Savitri Ratho, J.
The Petitioner has filed this application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (in short “BNSS”) for his release in connection with Tarava P.S. Case No. 122 of 2026 corresponding to Special G.R. Case No. 37 of 2026 in the Court of the learned Sessions Judge -cum- Special Judge, Sonepur under Section 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”).
ALLEGATION IN BRIEF
On 08.04.2026 at about 4:30 PM while the S.I. of Tarava Police Station along with his staff were performing patrolling duty near Menda Outpost under Tarava Police Station, they got reliable information that one handicapped person namely Parshu Tandi had stored huge quantity of contraband ganja on the backside of his house and was planning to transport it outside the State for business. They detained the petitioner and during course of search, found three jari bags and seven brown polythene packets were found from the backside of his house. The mandatory requirements of search and seizure under the NDPS Act were complied with. A weighman was called to weigh the ganja and the ganja was seized in the presence of an Executive Magistrate. On weighment, the bags were found to contain 15 Kg 296 Gram, 11 Kg 736 Gram and 15 Kg 444 Gram of ganja (Total 42 Kg 476 Gram excluding the weight of jarry bags).
SUBMISSIONS
I have heard Mr. Amitav Tripathy, learned counsel for the Petitioner and Mr. Debraj Mohanty, learned Additional Government Advocate for the Opposite Party and perused the case diary and the copy of the chargesheet produced by Mr. Mohanty, learned Additional Government Advocate as well as the Annexures to the bail application.
PETITIONER
Mr. Amitav Tripathy, learned counsel for the Petitioner submitted that the Petitioner is in custody since 08.04.2026 and nothing has been recovered from his conscious possession. The ganja has allegedly been recovered from behind his house which is an open space. There are many other persons who stay near and around this spot. Their houses / agricultural land is closer to the spot than house of the petitioner. As the petitioner is a handicapped person (suffering from 100% disability), he cannot move about without help, he became an easy target for the police. Both his legs have been amputated below the knees, so the allegation that he had stored Ganja and was planning to transport it is absurd. That apart the ganja has not recovered from his conscious possession but from a space accessible to many persons. He finally submitted that as the Petitioner does not have any criminal antecedents of similar nature (either under the NDPS Act or the Orissa Excise Act) and his confession before the Police in the absence of any other incriminating material is not sufficient to make out a case against him, the provisions of Section 37 (1)(b) of the NDPS Act will not be a bar for allowing his prayer for bail.
OPPOSITE PARTY
Mr. Debraj Mohanty, learned Additional Government Advocate opposed the prayer for bail, submitting that on receiving information from a reliable source that the Petitioner who is a handicapped person has stored huge quantity of contraband articles in the back side of his house and was planning to transport it outside the State for business purpose, the police went to the spot, recovered the ganja, seized the same after complying with the mandatory requirements of the NDPS Act and arrested the Petitioner who confessed that he was preparing to transport the ganja to Bolangir side for business purpose and also stated that he had bought the ganja from an unknown person from Kantamal. Mr. Mohanty also submitted that as the quantity of ganja was 42 kgs., Section 37 (1)(b) of the NDPS Act will be a bar for releasing the Petitioner on bail. Referring to the case diary, he submitted that the Petitioner has been charge sheeted in Tarva P.S. Case No. 79 of 2012 under Sections 294, 323, 353 and 506 of IPC. He finally submitted that as these types of crimes are on the rise, the Petitioner should not be released on bail.
STATUTORY BAR
Section 37 of the NDPS Act which is vital for deciding this bail application is reproduced below :-
“Section 37- Offences to be cognizable and non- bailable.-
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a)every offence punishable under this Act shall be cognizable;
(b)no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail
(2)The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
(Emphasis supplied)
JUDICIAL PRONOUNCEMENTS
The Supreme Court in a catena of decisions has held that it is mandatory for the Court dealing with bail applications of persons accused of having committed an offences under the NDPS Act dealing commercial quantity or under Section 19, Section 24 or Section 24 A of the Act, to afford opportunity to the Public Prosecutor to oppose the prayer for bail and if he/she opposes the prayer for bail , the Court has to record its satisfaction regarding existence of “reasonable grounds” of belief that (i) he is not guilty of such offence and that (ii) he is not likely to commit any offence while on bail , contained in Section 37 (1) (b) (ii) of the NDPS Act and that a liberal approach in the matter of bail under the NDPS Act is uncalled for. It has also been explained in the decisions as to what is the meaning of the term “reasonable grounds’.
The relevant paragraphs in the decision of the Supreme Court in the case of Union of India vs. Shiv Shanker Kesari : (2007) 7 SCC 798, are extracted below :-
“11.The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
12.Additionally, the court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”
In the case of Union of India vs. Rattan Mallik : (2009) 2 SCC 624, the Supreme Court has held as follows:
“12.It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (1) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds.
13.The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
14.We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.”
In the case of State of Kerala & Ors. vs. Rajesh & Ors. : (2020) 12 SCC 122, the Supreme Court discussed the requirement of Section 37 and the meaning of the term ‘reasonable grounds’. Relevant portion of the judgment is extracted below:-
“19.The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
20.The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.”
DISCUSSION
As per the provisions of Section 37(1) (b) of the NDPS Act and the decisions referred to above, there is a bar for grant of bail where the quantity of contraband is more than the commercial quantity, unless the requirements of Section 37 of the NDPS Act are satisfied. As per the schedule to the NDPS Act, the commercial quantity of ganja is 20 kgs. As more than 42 Kgs of Ganja have been seized in this case, the provision of Section – 37 (1) (b) of the NDPS Act are attracted.
As per the allegations, the ganja has been recovered from behind the house of the Petitioner. But perusal of the spot map which is available in the case diary reveals that the houses of Prakash Tandi, Binod Tandi, Damburu Tandi, latrine of Binod Tandi and cultivated land of one Dasa Tandi are located near the spot. As per the spot map the distance between the house of Parshu Tandi and the spot is 30 meters, the distance between the house of Prakash Tandi and the spot is 20 meters, the distance of the house of Binod Tandi and the spot is 20 meters, the distance of the house of Damburu Tandi and the spot is 15 meters, the distance of the latrine of Binod Tandi and the spot is 10 meters. The cultivated land of Dasa Tandi is next to the spot.
Annexure-2 to the BLAPL is a disability certificate issued to the Petitioner where it is indicated that both his legs have been amputated from below the knees and he suffers from 100% disability.
The case diaries submitted by the learned State Counsel contains entries upto 17.05.2026. The copy of the chargesheet reveals that after completion of investigation, chargesheet has been submitted on 04.10.2026 against the Petitioner for commission of offences under Section 20 (b)(ii)(C) of the NDPS Act. It is stated therein that as land map / ownerships details have not been obtained investigation in this regard is continuing.
Statements of the members of the raiding party, seizure witnesses, weighman - Rakesh Mahala, Executive Magistrate- Ms. Diptimayee Bhue who have been examined during investigation and available in the case diary speak about the seizure of the ganja and the confession of the Petitioner. There are no statements of witnesses of the locality available in the case diary that they have seen the Petitioner growing the ganja / procuring the ganja / storing the ganja/ or habitually involved in ganja business.
There is no allegation that the Petitioner has any antecedents of similar nature.
In view of the above discussion, for the purpose of consideration of the prayer for bail, I am satisfied that the materials in the case diary do not establish that it is the case of the Petitioner who has committed the offence or that he is likely to commit similar offence, if he is released on bail.
As regards the likelihood of the applicant committing a similar offence if released, as there is no indication of any previous similar criminal record or antecedents, I am satisfied that he is not likely to commit any such offence, while on bail.
The twin requirements of Section 37(1)(b)(ii) of the NDPS Act are accordingly dealt with.
As chargesheet has been submitted the possibility of the Petitioner tampering with evidence is remote. But suitable conditions to prevent any tampering can be imposed while releasing him on bail.
CONCLUSION
The prayer for bail is accordingly allowed.
The Petitioner – Parshu Tandi shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter after verification that he has no antecedents under the NDPS Act, including the following conditions:-
He will not commit similar offence while on bail.
He will not threaten or try to influence prosecution witnesses while on bail.
Violation of any condition will entail in cancellation of bail.
The BLAPL is accordingly disposed of.
The case diaries and copy of chargesheet be returned to the learned State Counsel.
In case the Petitioner is found involved in any offence under the NDPS Act while on bail, the prosecution shall be at liberty to seek cancellation of the bail granted to the Petitioner.
The learned trial court shall not consider any observations made in this judgment regarding the prosecution case or materials available against the Petitioner, as an expression on the merits of the prosecution case, as they have been made for the sole purpose of consideration of the prayer for bail.
Copy of this judgment be communicated to the Court of the learned Sessions Judge -cum- Special Judge, Sonepur by Registry forthwith.