Milu Nayak v. State Of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No.7088 of 2022 Milu Nayak ....

Petitioner Mr. S.K. Nayak, Advocate -versusState of Odisha ....

Opposite Party Mr. A. Pradhan, ASC CORAM: JUSTICE V. NARASINGH

ORDER

28.11.2022 Order No.

02.

1.

This matter is taken up through hybrid mode.

2.

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

3.

The Petitioner is an accused in T.R. Case No.190 of 2022 pending on the file of learned Sessions Judge, Khurda at Bhubaneswar, arising out of Bharatpur P.S. Case No.194 of 2022 for commission of offence under Section 20(b)(ii)(C) of the NDPS Act.

4.

Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Sessions Judge, Khurda at Bhubaneswar by order dated 23.06.2022 in the aforementioned case, the present BLAPL has been filed.

5.

It is submitted that the Petitioner is in custody since 18.05.2022 and the charge sheet has been filed on 12.11.2022. He further submits that as per materials on record and the final form, it

can be seen that seizure from the possession of the Petitioner was 20 Kg. 300 Grams (ganja) but he has been entangled with another co-accused from whom the seizure was to the tune of 14 Kg. 800 grams so as to make a total seizure of 35 Kg. 100 Grams so as to attract the bar contained in Section 37 of the N.D.P.S Act. It is stated that since seizure was from a public place, conscious exclusive possession cannot be attributed to the Petitioner so as to attack the rigors of Section 37 of the N.D.P.S Act and wrong weighment also cannot be ruled out at this stage. Since the Petitioner is the first offender, he may be released on bail. 6.

Learned counsel for the State submits that there are materials on record that both the present Petitioner and co-accused were carrying contraband (Ganja) to the tune of 35 Kg. 100 Grams and dissection of quantity at this stage is not permissible in law as bar under Section 37 of the N.D.P.S Act is squarely attracted. Therefore, the Petitioner ought not to be released on bail. 7.

Considering the materials on record qua the complicity visà-vis the Petitioner, keeping in view the age and that he is the first offender, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned Court in seisin over the matter.

8.

The BLAPL stands disposed of.

9.

Urgent certified copy of this order be granted as per the rules.

(V. NARASINGH) Judge PKS