RAJENDRA KUMAR SENAPATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON a reference made by the learned Single Judge in the aforesaid batch of cases, two primal questions arise for consideration, namely, (i) whether non observance of the provisions required to be observed at the time of search of a person as provided under section 50 of the Act, entitles an accused of the offences under the Act to be released on bail. Another ancillary point connected with this question is as to whether the case diary can be'looked into while disposing of the bail application on the ground of non observance of the provisions of section 50 of the Act before submission of the charge sheet/prosecution report and (ii) whether the provisions of section 37 of the Narcotic Drugs and Phychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') are applicable with regard to offence punishable under section 20(b)(i) of the Act.

(2.) THE facts of the cases having bearing on the said questions are as follows : Crl. Misc. Case No. 21 of 1998 . The prosecution case was that on 27 10 1997, the Sub Inspector of Police, Satyabadi Police Station in the district of Puri, on getting secret information that the petitioner Rajendra Kumar was in possession of a huge quantity of ganja, bhang and opium in his house at village Indupur, made a Station Diary Entry, despatched a copy of the same to his immediate superior officer through special messenger, proceeded to the house of the accused in village lndupur, wherein he found the accused, sitting alone near the door inside the room. The accused tried to ascape, but however, he was restrained, the allegations against him were disclosed and he was asked for a personal search as well as the house search. The accused petitioner was informed of his right to exercise his option in writing to be produced before the Magistrate or a Gazetted Officer and he having given in writing for being searched before a Gazetted Officer, personal search was made before the Circle Inspector of Police who reached the spot later on. However,nothing incriminating was found in his possession. But during the search of the room in presence of the witnesses, a guny bag kept open containing ganja with flowers and seeds well developed and two guny bags containing bhang kept open on the floor of the room, which were in exclusive and conscious possession of the accused. On weighment, 39 Kgs, of ganja excluding bag, 46 Kgs. of bhang and one small gunny bag containing 26 Kgs. of ganja, a cash of Rs. 6,2000/ , which was suspected to be sale proceeds of the contraband articles, and two sets of weights and measures were seized. The accused was arrested and produced before the lower court and was remanded to judicial custody. The bail application having been rejected.

(3.) CRL Misc. Case No. 2844 of 1996 : The points involved in the case being similar to the aforesaid the cases, the matter is directed to be heard along with the aforesaid Criminal Misc. Cases.