The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.1822 of 2024 Ganesh Das …. Petitioner Mr. A.K.Jena, Advocate -versus- State of Odisha …. Opp.party Mr. A.K. Pati, ASC CORAM: JUSTICE M.S.SAHOO Order No. ORDER 06.05.2024 Hybrid Mode 02. 1. The petition under Section 439, Cr.P.C. has been filed by the petitioner who is in jail custody custody in connection with Kalimela P.S.Case No.87 of 2023 corresponding to Special G.R. Case No.113(A) of 2023 pending in the court of the learned Sessions Judge-cum-Special Judge, Malkangiri for alleged commission of offences under Sections 20(b)(ii)(c) of the NDPS Act. Since the earlier BLAPL No. 6205 of 2023 filed by a co-accused in the aforesaid case, was disposed of by this Bench on 12.12.2023, the matter has been listed before this Bench in terms of Standing Order No.2 of 2023 dated
Legal Reasoning
21.05.2023 of the High Court for consideration. 2. When the matter was last listed on 08.04.2024, learned counsel for the State was granted time to obtain instruction Page 1 of 6 in the matter. Since the case diary is available in the connected earlier BLAPL, learned ASC relies on the said case diary available in the connected BLAPL. 3.
Legal Reasoning
It is submitted by the learned counsel for the petitioner that the present petitioner has been named in the statement of one of the accused namely Mrutyunjaya Mishra who was granted bail in BLAPL No. 6205 of 2023 by order dated 12.12.2023. The said order dated 12.12.2023 is reproduced herein : “1. The BLAPL has been filed by the petitioner, under Section 439 Cr.P.C., seeking his release on bail from jail custody in connection with Kalimela P.S. Case No.87 of 2023 corresponding to Special G.R. Case No.113 of 2023 pending in the court of learned Sessions Judge-cum-Special Judge, Malkangiri, for alleged commission of offences under Sections 20(b)(ii)(c) of NDPS Act. 2. When the matter was taken up on 01.12.2023 after hearing the learned counsel for the petitioner and the learned counsel for the State, the following order was passed: “1. Learned counsel for the petitioner submits that the petitioner was arrested from his home on 09.05.2023, whereas the allegations is that the contraband was seized on public road kept in three motor bikes on 11.04.2023. It is, therefore, submitted that there was no conscious possession of any contraband when the petitioner was arrested on 09.05.2023. It is further submitted that the Final Prosecution Report has been submitted on 24.10.2023. 2. The learned Additional Standing Counsel for the State after addressing arguments seeks further accommodation to respond to the submissions of the learned counsel for the petitioner. As prayed for, list on 06.12.2023. Up-to-date instruction/case diary be obtained by the learned counsel for the State.” 3. Learned counsel for the petitioner submits that in view of the fact that as per prosecution case no contraband recovered from the conscious possession of the petitioner as Page 2 of 6 it is alleged that prosecution case for the fact that the contraband was seized on the side of a public road near three parked motor cycles with no human being around though it is alleged that some persons ran away from the spot and identified and in the meanwhile, Final Prosecution Report has been submitted on 24.10.2023. Considering the period of incarceration already undergone and the fact that the F.P.R. has been submitted, the petition should be shown indulgence as far as prayer for bail is concerned. It is also submitted by the learned counsel for the petitioner that the petitioner has no past allegations of criminal activity against him which is in sync with the police report received by the learned Standing Counsel for the State as part of the case diary. 4. Learned Standing Counsel for the State referring to the materials contained in the case diary and the quantity seized from the spot on the public road, i.e. 125 Kg. 500 gm contained in three separate bags and the provisions of Section 37 of the NDPS Act opposes the prayer for bail. However, it is not disputed at the bar that as per the prosecution report, after seizure of the contraband on the side of a public road near three abandoned motor cycles, on 11.04.2023, the petitioner-accused was arrested on 05.05.2023 and thereafter on 09.05.2023, the statement of the petitioner-accused was recorded. 5. Having heard the learned counsel for the petitioner and learned Standing Counsel for the State, considering the materials on record, this Court is inclined to grant bail to the petitioner subject to such stringent terms and conditions that would be imposed by the learned court in seisin of the matter, which shall also include a condition that any violation of/deviation from any of the terms and conditions that would be imposed for grant of bail, shall result in filing of the petition for cancellation of bail by the law enforcement agency. 6. The BLAPL is disposed of. Before parting with the case, this Court clarifies that the reference to the materials produced during investigation is only for consideration of the prayer for bail and it shall not be treated to be any observation on merits of the case of the parties/prosecution in the pending trial. Issue urgent certified copy as per rules.” Page 3 of 6 4. Learned ASC for the State referring to the material contained in the case diary and quantity of contraband seized from the spot i.e. on the public road on 11.04.2023 i.e. total quantity of 125 Kg 500 grams contained in three separate sacks and also referring to the provision of section 37 of the NDPS Act, opposes the prayer for bail. 5. Learned counsel appearing for petitioner submits that the petitioner has been named by one of the co-accused who has been granted bail earlier by this Court by order dated 12.12.2023 as referred above. It is submitted that there is no past allegation of criminal activity against the petitioner who is aged about 25 years and the petitioner having come to know that he has been implicated by one of the co-accused,p surrendered before the court of jurisdiction on 07.02.2024 and is in custody since then. It is submitted that the petitioner is a local person shall subject himself to the jurisdiction of the learned court in seisin of the matter, considering the age of the petitioner he should be shown indulgence to go back to the community to lead a normal life and petitioner shall abide by all the terms and conditions that would be imposed by this Court, if the Court is inclined to grant bail to the petitioner. 6. It is submitted by the learned ASC that the petitioner is the registered owner of the motorcycle that was kept abandoned on the side of the road and was seized by the police/investigating agency. Page 4 of 6 Learned counsel for the petitioner in response submits that ownership of the abandoned motorcycle does not any way suggest that the petitioner was in conscious possession of any contraband. He again reiterates that the FIR discloses that contraband was seized from the side of a public road near three parked motorcycles on 11.04.2023, arrests of two persons were made on 05.05.2023 and 15.05.2023 and thereafter on 09.05.2023 statements of the accused persons were recorded. It is therefore submitted by learned counsel for petitioner that petitioner cannot be attributed to be in possession of any contraband as was seized on 11.04.2023 for the reason that the F.IR was lodged against unknown persons. 7. Having heard the learned counsel for the petitioner, the learned counsel for the State and considering the materials on record, this court is inclined to grant bail to the petitioner subject to such stringent terms and conditions that would be imposed by the learned court in seisin of the matter which shall also include the condition that any violation of/deviation from any of the terms and conditions that would be imposed for grant of bail would result in cancellation of bail by the learned investigating agency.
Decision
8. The BLAPL is disposed of accordingly. 9. Before parting with the case, this Court clarifies that any reference to the materials produced during investigation in the present order is only for consideration Page 5 of 6 of the prayer for bail and it shall not be treated to be observations regarding the merits of the contentions that would be raised in the pending trial before the learned court in seisin, by either of the parties to the present petition. Urgent certified copy of this order be granted in accordance with Rules. dutta (M.S.Sahoo) Judge Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: OHC Date: 15-May-2024 12:42:12 Page 6 of 6