MADAN MOHAN BHANJA DEO Vs. UNION OF INDIA

JUDGEMENT

(1.) This relates to an application for bail prayed under Section 439 of the Code of Criminal Procedure, 1973 (in short 'the Code'). Keeping in view the fact that petitioner is involved for an offence under Section 20(b)(i) and Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') the bail application has to be read as an application under Section 439 of the Code read with Section 37(1) of the Act.

(2.) Charge for the aforesaid offences has been framed against the petitioner on 5-2-1998 on the allegation that he was found in possession of 15 gms. of Ganja preparation (canabis) and that he was also found in unlawful possession of manufactured drugs (Modaks) and preparation thereof.

(3.) Main thrust of the contention of Mr. Manoj Mishra, learned counsel for the petitoiner is that in view of the ratio in the case of Gunanidhi Chand v. State of Orissa, (1997) 13 OCR 331, maximum punishment prescribed for the offence under Section 20(b)(i) of the Act being five years restriction prescribed in Section 37(1) of the Act relating to bail is not applicable to such a case. His further contention is that in view of the ratio in the cases of Durga Prasad Mohanty v. State of Orissa, (1991) 4 OCR 216 and Nanda Parida v. State of Orissa, (1984) 57 CLT 448, the confessional statement of the co-accused cannot be regarded as establishing a prima facie case and in such case prayer for bail should be allowed. Mr. H.K.Jena, learned Sr. Standing Counsel (Central) disputing the aforesaid contention argued that there exists a prima facie case and in view of the restriction imposed under S.37(1), prayer for bail should not be entertained. He added that petitioner having also been charged for the offence under S.21 of the Act where minimum punishment prescribed is 10 years, the aforesaid contention of Mr. Mishra is not acceptable.