In view of the legal position established by the Supreme Court in Tofan Singh v. State of Tamil Nadu
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.506 of 2025 Raj Kumar Behera …. Petitioner Mr. M. Padhy, Adv. State of Odisha -versus- …. Opposite Party(s) Ms. Gayatri Patra, ASC CORAM: DR.JUSTICE S.K. PANIGRAHI Sections Section 20(b)(ii) of the NDPS Act.
Decision
Order No. FIR No. 219 Dated Police Station 21.08.2020 Jeypore Town ORDER 03.02.2025 Case No. and Courts’ Name In connection with Jeypore Town P.S. Case No.219 of 2020 corresponding to T. R. Case No.52(B) of 2020, pending in the file of learned Additional Sessions Judge-cum-Special Judge, Koraput at Jeypore 02. 1. This matter is taken up through hybrid arrangement. 2. Heard learned counsel for the Petitioner and learned counsel for the State. Page 1 of 6 3. The Petitioner being in custody in connection with Jeypore Town P.S. Case No.219 of 2020 corresponding to T. R. Case No.52(B) of 2020, pending in the file of learned Additional Sessions Judge-cum-Special Judge, Koraput at Jeypore, registered for the alleged commission of offence under Section 20(b)(ii) of the NDPS Act, has filed this application for his release on bail. 4. It is alleged in the FIR that on the Police received an information regarding transportation of contraband ‘Ganja’ in a TATA ACE Vehicle bearing registration No.OD-10-H-2557 on NH 326 from Boipariguda to jeypore Town. Thereafter, they proceeded to the aforesaid place and after a while at about 10:00 A.M, they found the said vehicle was coming from Boipariguda side being escorted by one person. Police detained the vehicle and found two occupants were there, on being searched, recovered 42 number of gunny bags containing 1046 Kgs. of contraband ‘Ganja’. 5. Learned counsel for the Petitioner submits that the Petitioner has been falsely implicated in this case on the basis of the confessional statement of the principal accused. He further submits that the Petitioner has not named in the FIR and he has no role in this case. In view of Page 2 of 6 all these above, he urges for grant of bail to the Petitioner on such terms and conditions as deemed just and proper. 6. Learned counsel for the State vehemently opposes the bail prayer of the Petitioner. 7. In view of the legal position established by the Supreme Court in Tofan Singh v. State of Tamil Nadu1, the Bench, conclusively held that officers empowered under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 qualify as "police officers" within the meaning of Section 25 of the Indian Evidence Act, 1872. Consequently, any confessional statement made before such officers stands interdicted by the statutory bar under Section 25 of the Evidence Act and is, therefore, inadmissible in evidence for the purpose of securing a conviction under the NDPS Act. The reference comes to be answered in paras 158.1 and 158.2 of the decision in Tofan Singh, which read as under: “158.1: That the officers who are invested with powers under Section 53 of the NDPS Act are 'police officers' within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the 1 (2021) 4 SCC 1 Page 3 of 6 Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2: That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act." This legal exposition was reaffirmed by the Supreme Court in para 10 of Rajkumar Hariram Gameti v. State of Gujarat2: “Thus, the position of law, as on date, is that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are ‘police officers’ within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” Applying the ratio of Tofan Singh (supra) and Rajkumar Hariram Gameti (supra) to the factual matrix of the instant case, it is manifest that the Learned counsel for the State hinges predominantly on a statement recorded under Section 67 of the NDPS Act. Given that in the absence of any legally admissible material that would warrant the continued incarceration of the applicant, and in deference to the principles governing personal liberty as enshrined 2 2024 SCC OnLine SC 572 Page 4 of 6 under Article 21 of the Constitution of India, this Court finds no cogent or compelling ground to deny the relief of bail. 8. Considering the submissions made on behalf of both the parties, without going into the merits of the case, this Court directs the court in seisin over the matter to release the present Petitioner on bail in the aforesaid case on some stringent terms and conditions with further conditions that: i. ii. iii. iv. the Petitioner shall appear before the court in seisin over the matter on each date of posting of the case till conclusion of the trial; the Petitioner shall not indulge himself in any criminal activities in future; the Petitioner shall not tamper the evidence of the prosecution witnesses in any manner; the Petitioner shall plant 100 saplings of local like mango, neem, tamarind etc. variety around his village over the Government land/ community land/ private land, if it is in the possession of the Petitioner or his family members. Violation of any of the above conditions shall entail cancellation of the bail. 9. The District Nursery/D.F.O shall extend the helping hand by supplying the saplings to the Petitioner and the Page 5 of 6 Revenue Authority shall assist the Petitioner in identifying the location for plantation of the saplings. If the land is not available, the Petitioner to approach the Revenue Authority for identifying the land for plantation and the Revenue Authority shall do the needful. 10. The I.I.C. of the concerned Police Station in coordination with the local Forest Officer shall monitor; whether the Petitioner has planted the saplings or not. 11. It is further made clear that the Petitioner shall file an affidavit after plantation of the saplings before the local Police Station assuring that he will maintain those plants for two years. The said affidavit be also produced before the learned court below at the time of trial. 12. The BLAPL is, accordingly, disposed of. Judge (Dr. S.K. Panigrahi) Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 04-Feb-2025 18:11:17 Page 6 of 6