IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (Crl) No. 2024

:UNDER ORDER XXII RULE 2 (1)

IN THE MATTER OF:

SIMACHAL@ SIMA THATI.... PETITIONER

VERSUS

STATE OF ORISSA...... RESPONDENT

INTRODUCTION :

The present petition is being file challenging the impugned final order and judgment dated
06.11.2023 passed by the Hon'ble High Court of Orissa at Cuttack in BLAPL No. 12181 of 2023
whereby the Petitioner's bail application under Section 439 of the Criminal Procedure Code,
1973 has been dismissed without considering the grounds raised by the Petitioner.

The Hon'ble High Court having taken a lackadaisical approach in rejecting the Bail Application of
the Petitioner and granting him only interim bail when the relief of Interim Bail.
The Hon'ble High Court failed to take into consideration the umbrage of the Petitioner who has
been languishing in Judicial Custody since quite some time without any prima facie evidence
being adduced against him.
The petitioner shown as a recovery witness by the police officials has not supported the case of
prosecution. During the cross examination he has clearly stated that the police officials have
not seized any Ganja in his presence on 28.11.2021.

He further denied the weighing of Ganja and preparation of chart showing the details of
narcotic drugs which was alleged to have been seized by the police officials. Signature of the
witness was taken by the police officials and no such incident as alleged in the FIR has ever
taken place in the presence of the Recovery Witness. Even during his cross examination by the
prosecution nothing incriminating was found out against the Petitioner. He had clearly stated
that he signed the papers without knowing the contents at the Police Station.

List of dates and events:

28.11.2021 – FIR was registered with police station Phiringia, District kandhamal, Orissa. The
petitioner was also arrested on same day with the charges of 20(b)(ii)(c) of the narcotic drugs
and psychotropic substance Act.

08.03.2022 and 21.11.2022 – Charge sheethas been filled and the prosecution had examined
and cross the recovery witness and the same witness was declared as hostile.

30.09.2022 – the bail application had filled by the petitioner which was rejected by the hon’ble
high court of Orissa.

03.05.2023 – the petitioner had filed the second bail application, which was partially allowed by
the court. In which the petitioner was only allowed interim bail of 2 months.

18.09.2023 – the regular bail filed before the Ld. Special judge NDPS, Phulbani which was
dismissed stating that the nature and gravity of the offence alongwith the punishment which
was prescribed for the same and the chance of the Petitioner evading the process of law· once
he is enlarged on bail are factor based on which the Petitioner's application is rejected.

06.11.2023 - The Hon'ble High Court while disposing off the bail application allowed the release
of the Petitioner on interim bail from the date of actual release and directed the trial court to
impose any terms and conditions as deemed fit and proper.

FACTS OF THE CASE :

on 28.11.2021 at about 5.15 am, I received a reliable information from source that one person
namely- Sima Thati S/o-Lt Nandi Thati At-Katapanga( Mundasahi) PS-Phiringa Dist- Kandhamal
is in possession of huge quantity Ganja i.e. flowering and fruiting tops of cannabis plant in 04
nos of plastic bags are kept in possession of huge quantity of Ganja for conveyance to
transporting the same.
He is waiting in a lonely place i.e. on the road at village Katapanga ( Mundasahi) for conveyance
to transportation of ganja, which he has procured early from the nearby locality. Unless an
immediate raid is being conducted the contraband articles may be transported to some other
areas and pass different hands for the purpose of illicit sale and consumption.
As per direction, SI N.Jena organized a raid party comprising of himself with PS staff with a view
to proceed to the spot immediately to explore the probability of detection and
seizure of ganja and to verify the veracity of the Information received.
Then SI N.Jena along with their raid party members proceeded to the spot police station
vehicle, they picked up two local witnesses namely Biswambar Kanhar S/O Surendra Kanhar and
Bibatsa Kanhar S/O baleshwar kanhar of vill.

On reaching at the spot, i.e. on the road side near village Katapanga (Mundasahi), they saw one
person was sitting on the huge plastic bags on the road riear village Katapanga(Mundasahi).On
seeing the police vehicle, the above person tried to escaped from the spot but they could able
to caught hold him.
on being asked he admitted to have possessed ganja inside the 04 nos. bags for the purpose of
selling and waited for conveyance at the spot. On being asked he revealed that he is doing
Ganja business since long and he denied of having any license or authority regarding such
possession and transportation but he does not disclose any details regarding procurement of
ganja.
As there were huge quantity of ganja it was not possible to take them to the nearest E.M
hence,requisition was placed to SDM Kandhamal, Phulbani for seizure of ganja at the spot. On
interrogation of the suspect named above disclosed that, he was transporting Ganja.
Ganja were found inside the inside each bag. On weighing of bags No. 1 to IV with Ganja it
became 1 Quintal 02 kg (each pocket containing 25 kg 500 grams) and on weighing of the only
Ganja it became 01 quintal 800gms The weight of the plastic bags came to be
1kg 200 gms.

Kandhamal was in exclusive and conscious possession of ganja more than commercial quantity
without having any license and authority. Hence, he is liable U/s 20(b) (ii) (C) NDPS Act.

According to the Inspector -in - Charge ,Phiripgia PS, Dist. Kandhamal, On weiging of each bag it
became 25 kg.200gms and the weights of each class plastic bags came to be 300 gms.
All the Exhibits have been properly sealed by using my personal brass seal on red wax. The said
exhibit and the contraband article ganja with bags total 01 Quintal 2kg, which recovered from
the exclusive and conscious possession of accused person namely as Simanchal @Sima Thati
(45)S/o LT. Nandi Thati of village Katapanga(Mundasahi PS Phiringia Dist. Kandhamal have been
seized under proper seizure memo in presence of witnesses, weigh men and E.M at the spot at
5.20 PM and they put their signature on the seizure list after going through its contents.

Question of law
i. Whether the Impugned Order is erroneous in as much as the Regular Bail of the
Petitioner has been denied in an unreasoned manner and interim bail was granted even
when the same was never pleaded before the Hon'ble High Court?
ii. Whether the Impugned Order is erroneous in as much as when similarly situated
individuals are being granted the relief of bail after attracting the same provisions of law
under the Narcotic Drugs and Psychotropic Substances Act, 1985?
iii. Whether the Hon'ble High Court should not have granted bail to the Petitioner
considering that mandatory compliances under S. 42, 50 and 52 A of the NDPS Act have
not been done b the instant case?
iv. Whether the Hon'ble High Court has not committed illegality by not considering the true
scope, interpretation and applicability of Section 20 (b)(ii)(c) of the Narcotic Drugs and
Psychotropic Substances Act,1985?
v. Whether in view of the authoritative pronouncements by this Hon'blecCourt and the
law with respect to grant of bail, the Hon'ble HighcCourt erred in rejecting the bail
application of the Petitioner even though he has been in custody for substantial period
of time, i:e. more than two years and the final report/ challan qua the Petitioner had
been filed?
vi. Whether rejection of the bail in the facts and circumstances of the present case would
be in violation of the rights guaranteed to the Petitioner under Article 21 of the
Constitution of India?

Grounds for regular bail and set aside high court order
1) The impugned final order and judgment passed by hon’able high court is incorrect and
unsustainable in law and it is required to be set aside.
2) The hon’able high court failed to give any reason for denial of bail which shows the non
application of mind thus nedding the intervention of this hon’ble court.
3) The impugned final order and judgement passed by high court through lack of due regards
to the law and inconvienent in comparison with the facts and the circumstances of the
case.
4) With the appreciation of the custody for two years two monthsa and the petitioner was
only granting the relief of interm bail which was neither pleaded in bail application the
hon’able high court decided the matter against the petitioner
5) Because the hon’ble high court granting interm bai; and disposing off the original bail
application, it ought to have kept matter pending and causing forced to the petitioner by
 not giving paramount attention to the liberty of the Petitioner as has been envisaged under
Article 21 of the Constitution of India.
6) Because further this Hon'ble Court in the case of Sonu vs Sonu c, Yadav and another, 2021
SCC OnLine SC 286 has observed:
"An order without reasons is fundamentally contrary to the norms which guide the judicial
process. That there has been· a judicious application of mind by the judge who is deciding
an application under Section 439 of the CrPC must emerge”.

"11. In the earlier part of this judgment, we have extracted the lone sentence in the order
of the High Court which is intended to di~play some semblance of reasoning for justifying
the grant of bail.”
7) Because judgment of the Apex Court in the matter of Mahipal v. Rajesh Kumar@ Polia and
another, (2020) 2 SCC 118

“The impugned order passed by the High Court is cryptic, and does nut suggest any
application of mind. There is a recent trend of passing such orders granting or refusing to
grant bail, where the Courts make a general observation that "the facts and the
circumstances" have been . considered. No specific reasons are indicated which precipitated
the passing of the order by the Court”

“23. Such a situation continues despite various judgments of this Court wherein this Court
has disapproved of such a practice. In the case of Mahipal (supra) this Court observed as
follows:”
8) Because the Hon·'ble High Comi failed to appreciate the fact that in the instant case, where
the Applicant has already suffered prolonged incarceration, the statutory embargo under
Section 37(i)(b )(ii) is overridden by the fundamental right guaranteed under Article 21 of
the Constitution of India.
9) Because the Hon’ble High Court has failed to appreciate that the countermanding effect of
the right guaranteed under Article 21the extent of the Hon'ble Court finding "reasonable
grounds" for enlarging the accused on bail wherein "reasonable grounds" connote
substantial probable causes for believing that the accused is not guilty of the offence he is
charged with.
10) the Hon'ble High Court has failed to appreciate that the witness before whom the alleged
contraband was recovered had turned hostile and no weighing of the alleged contraband
was done before him. Further, no weighing machine was seized from his presence.
11) the Hon'ble High Court has failed to appreciate that the person who acted as the weighman
did not know the investigating officer· nor did he know any accused.
12) the Hon'ble High Court failed to appreciate the fact that the Petitioner is an inhabitant of
Kandhamal, Odisha,and also not well educated to understand the full implication.
13) the Hon'ble High Court failed to appreciate the fact that gross negligence has been
committed on behalf of the prosecutionIt is pertinent to mention here that no independent
witnesses were present during the seizure of the alleged contraband.
14) Because the Hon'ble High Court failed to appreciate that only 10 witnesses have been
examined till date out of 20 witnesses. Despite charges being framed since 28.09.2022, the
Trial has been proceeding at a very slow pace.
15) Because the Hon'ble High Court failed to appreciate that the chargesheet has already been
filed in the present case long ago on 08.03.2022.
16) Because the Hon'ble High Court failed to appreciate that the Petitioner has already been in
custody since 28.11.2021 was· only released for interim bail since 26.12.2023 and has thus
been in custody for 2 years and 2 months.
17) Because the Hon'ble High Court failed to appreciate that the custodial interrogation of the
Petitioner is no longer necessary.
18) Because the Hon'ble High Court failed to appreciate that the Petitioner does not have any
criminal antecedents.
19) Because the Hon'ble High Court failed to appreciate that the conclusion of the trial will take
considerable amount of time.
20) Because the Hon'ble High Court failed to appreciate that this Court, time and again, has
stated that bail is the rule and committal to jail an exception.
21) Because if the impugned order is not set aside, grave injustice would be meted out to the
Petitioner herein.

Relevent sections
Section 20 in The Narcotic Drugs and Psychotropic Substances Act, 1985

20. Punishment for contravention _in relation to cannabis · plant and cannabis.
Whoever, in contravention of any provisions of this Act or any rule or order made or
condition of licence granted thereunder,
(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-

State, exports inter-State or uses cannabis, shall be punishable- 1 [(i) where such
contravention relates to clause (a) with rigorous imprisonment for a term which may
extend to ten years and. shall also be liable to fine which may extend to one lakh
rupees; and
where such contravention relates to sub-clause (b),
(A) and involves small quantity, with rigorous imprisonment for a term which may
extend to six months; or with fine, which may extend to ten thousand rupees, or
with both;
(B) and involves quantity lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term· which may extend to ten years and
with fine, which may extend to one lakh rupees;
and involves commercial quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend. to twenty years and shall also
be liable to fine which shall not be less than one lakh rupees but which may extend
to two lakh rupees: Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.]

Section 22 in The Narcotic Drugs and Psychotropic Substances Act, 1985

Whoever, in contravention of any provision of this Act or any rule or order made or
condition of licence granted thereunder, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or uses any psychotropic substance
shall be punishable,--

(a) where the contravention involves small quantity, with rigorous imprisonment for a
term which may extend to 2[one year], or with fine which may extend to ten thousand
rupees, or with both;

(b) where the contravention involves quantity lesser than commercial quantity but
greater than small quantity, with rigorous imprisonment for a term which may extend to
ten years, and with fine .
(c) where the contravention involves commercial quantity, with rigorous imprisonment
for a term which shall not be less than ten years but which may extend to twenty years,
and shall also be liable to fine which shall not be less than one lakh rupees but which
may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.]
Section 27 A in The Narcotic Drugs and Psychotropic Substances Act,
1985

27 A. Punishment for financing illicit traffic and harbouring offenders .

Whoever indulges in financing, directly or indirectly, any of the activities specified in
sub-clauses

(i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the
aforementioned activities, shall be punishable with rigorous· imprisonment for a term
which. shall not be less than ten years but which may extend to . tvventy years and shall
also be liable to fine which shall not be less than one lakh rupees but which may extend
to two lakh rupees: Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees].
Conclusion :
Final judgment of special leave petition :
The hon’ble Supreme Court disposed of the Special Leave Petition with words are as
follow:
1. According to him, the petitioner has been already granted interim bail, however, the
impugned order being only in respect of the interim bail, the present SLP is filed.
2. The petitioner having already availed the benefit of the impugned order granting the
interim bail, he should have not filed the SLP challenging the said order
3. Under the circumstances, we direct the petitioner to first surrender before the trial
court and then apply for regular bail as may be permissible under law.
4. It is clarified that we have not expressed any opinion on the merits of the case.