NARAHARI DAS Vs. STATE

JUDGEMENT

(1.) Heard Shri Mishra for the petitioner and Shri Behera, learned Additional Government Advocate for the State.

(2.) This is an application under Sec. 439 of the Code of Criminal Procedure read with Sec. 37 of the NDPS Act for grant of bail. Charge-sheet has already been filed against the petitioner under Sec. 20 of the NDPS Act on the allegation that 5 cannabis plants were found inside his bari. Shri Mishra for the petitioner submitted that the search and seizure having been conducted by the A.S.I., Kujanga P.S. who is not competent to do the same, the ultimate trial would be vitiated and on this ground alone the petitioner should be released on bail. In support of this submission, he placed reliance on the order of this Court in Rabi Sahoo v. State, (1994) 7 OCR 460 and on order dated 18-5-1995 passed in Criminal Misc. Case No. 783 of 1995 (Samir Kumar Maithan and another v. State of Orissa). It is an admitted case that the search and seizure in respect of the plants were made by the A.S.I. of police who is not competent to do so. There is thus violation of the mandatory provision contained in Sec. 42(1) of the NDPS Act. In the circumstances, the prosecution will not succeed. I also hold that there is no reasonable ground to believe that the petitioner is guilty of the alleged offence. Nothing is also brought to my notice that he is likely to do commit any offence while on bail. For the aforesaid reasons, I direct that the petitioner be released on bail of Rs. 10,000/- with two sureties each for the like amount to the satisfaction of the leaned Sessions Judge, Cuttack. This bail order is in connection with Kujanga P.S. Case No. 81 of 1994 and G.R. Case No. 289 of 1994 on the file of the JMFC, Kujanga. The criminal misc. case is disposed of. Urgent certified copy of the order, if applied for, may be granted by tomorrow.