SATYABRATA ALIAS SARAT MALLIA Vs. STATE

JUDGEMENT

(1.) These two petitioners have preferred this application for bail Under Section 439 Cr.P.C. the short facts of the prosecution case are as follows :

(2.) THE Sub -Inspector of Police, Balianta police station lodged an F.I.R. before the Officer -in -Charge, Balianta police station at 2 A.M. on 3 -8 -1991 alleging that the present petitioners while going on a Bajaj scooter bearing registration No. ORB -6970 were searched at Balianta bazar at 12.30 A.M. that night and a cash of Rs. 801/ - was found with the accused persons besides 7 grams of Brown sugar was found in the dikky of the scooter. On 3 -6 -1991 itself the accused persons were forwarded to the Court of the Sub -Divisional Judicial Magistrate, Bhubaneswar on the aflegation of having committed the offence under Secs. 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The SDJM for - warded the petitioners to the Court of the Sessions Judge, Puri who sent back the case record and accused persons to the Court of the SDJM, Bhubaneswar to deal with the case as no Special Court was established in Puri district to hear the cases under the N.D.P.S. Act. On remand the accused persons were again produced before the SDJM, Bhubaneswar on 5 -8 - 1991 and the application of the accused persons for bail was moved before the learned SDJM who rejected it on . the ground that the offences are exclusively triable by the Special Court against which order the petitioners preferred a Criminal Misc. Case bearing No. 330 of 199 I before the learned Addl. Sessions Judge, Bhubaneswar which was also rejected on 23 -8 -1991. On 26 -8 -1991 the accused persons again filed another application before the SDJM, Bhubaneswar praying for their release as they were already in custody beyond 15 days, but the learned SDJM again rejected the said application on the ground that the decision of this Court reported in 1991 (1) OLR 549 (Sauti Jena and Anr. v. State) cited by the petitioners had no application to the present case as the referred case related to Cuttack district where there is Special Court, but in the district of Puri there being no Special Court for hearing of the cases under the N.D.P.S. Act, 1985, the directions indicated in that case had no application to the present case. The petitioners again moved the learned Addl. Sessions Judge, Bhubaneswar in Criminal Misc. Case No. 391 of 1991 for bail who again passed the order on 4 -9 -1991 rejecting the bail application of the petitioners. Finding no other alternative the petitioners have moved this Court for bail.

(3.) THE learned Addl. Standing Counsel Mr. Das has raised the objection that Section 37 of the N. D. P. S. Act is a bar for their release and non -observance of the requirements of Section 50 are merely directory and not mandatory and it, therefore, cannot be a ground of their being released on bail particularly when the accused persons in their statement before the police during the investigation have stated that they had visited the village in question for procuring Brown Sugar, and that accused No. 1 indulged in selling the Brown Sugar in the locality, there was no reasonable ground for satisfaction of the Court for believing that the petitioners were not guilty of the offence charged and as such there was no ground for releasing the petitioner or either of them on bail.