Bijaya Kumar Sahu v. … Opp. Party Mr.S.S.Mohapatra, ASC CORAM: JUSTICE SAVITRI RATHO Order No
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.2146 of 2024 Bijaya Kumar Sahu … Petitioner Mr.Satyabrata Panda, Advocate State of Odisha vs … Opp. Party Mr.S.S.Mohapatra, ASC CORAM: JUSTICE SAVITRI RATHO Order No.
Decision
ORDER 16.05.2024 (Through hybrid mode) 04. 1. This matter is taken up on Special Notice along with BLAPL No. 3623 of 2024 and BLAPL No. 3626 of 2024 filed by the co- accused yesterday (15.05.2024) the cases had been directed to be listed today (16.05.2024) but were not listed. 2. This application under Section 439 of Cr.P.C. has been filed in connection with Puintala P.S. Case No.199 of 2023 corresponding to G.R. Case No.74 of 2023, pending in the Court of the learned Special Judge, Balangir where the petitioner is facing trial alongwith three others for commission of offences punishable under Section 20 (b) (ii) (C)/29 of the NDPS Act. 3. This matter had been listed before me as BLAPL No.14063 of 2023 filed by co-accused Dipan Sahu @ Dipankar Sahu has been Page 1 of 6 disposed of by me on 15.12.2023. 4. Mr. Satyabrata Panda, learned counsel for the petitioner submits that although he had appeared for the petitioner in BLAPL No.3623 of 2024 and BLAPL No.3626 of 2024 which are listed alongwith this BLAPL but the client has taken away the brief from him on 28.04.2024 to engage some other counsel. 5. None appears for the petitioner-Chitta @ ChittaRanjan Sahu in BLAPL No.3623 of 2024 and the petitioner- Sitakanta Dang in BLAPL No.3626 of 2024. 6. The prayer for bail of the petitioner and the three other co- accused persons has been rejected on 23.02.2024 by the learned Special Judge, Balangir for which this bail application has been filed. 7. The case of the prosecution, in brief, is that on 09.09.2023 while the informant Sabyasachi Pradhan, SI of police Puintala P.S., Balangir was performing patrolling duty on NH-57 alongwith his staff near Puintala P.S. area from Bairasar to Puintala, the police detected a Mahindra XUV vehicle bearing registration No.OD-03- W-4474 coming from Bairasar side towards Balangir and another pick-up van bearing registration no.OD-03-Z-4531 following the Page 2 of 6 Mahindra XUV vehicle at high speed. The vehicles did not stop in spite of signal by the police and the police followed the vehicles which stopped near Giri Gobardhan Temple, Gaintala. Seven plastic gunny bags smelling of ganja were detected in the pickup van bearing registration No.OD-03Z-4531. Two persons were sitting inside the pick-up van and one person was in the Mahindra XUV vehicle. They gave their identify as -Chitta @ Chittaranjan Sahu, Sitakanta Dang and Dipan @ Dipankar Sahu and confessed that they were transporting Ganja to Raipur via Balangir. The seven gunny bags were found to contain 217 Kg of contraband ganja. During investigation it was found that the petitioner who works as a Homeguard in Tarava Police Station had taken an amount of Rs.30,000/- to provide navigational assistance to the accused persons who were apprehended at the spot. Hence charge sheet was filed against him as well as the other three accused persons. 8. Mr. S. Panda, learned counsel for the petitioner submits that the petitioner has been remanded in this case on 27.09.2023 and since then he is in custody. He was not named in the FIR nor by the co-accused persons in the case who were arrested at the spot. The basis of his implication is confession of the co-accused Biswanath Sahu in Balangir Town P.S. Case No.505 of 2023 registered under Page 3 of 6 Section 20(b)(ii)(C) of the NDPS Act before the police. He further submits that the investigating authority had not recovered anything incriminating from him in this case or in Balangir Town P.S. Case No. 505 of 2023. In Balangir Town P.S. Case No.505 of 2023, he had been entangled in the case on the basis of the confession of the co-accused-Biswanath Sahoo. He further submits that Section 37 of the NDPS Act will not be a bar for consideration of his prayer for bail in this case as no ganja has been seized from him and the basis of his implication is confession of the co-accused before the police which is not admissible. 9. Mr. S.S. Mohapatra, learned Addl. Standing Counsel opposes the prayer for bail stating that Section 37 of the NDPS Act will be a bar for consideration of the prayer for bail of the petitioner in view of the quantity of ganja seized and as he has one similar criminal antecedent which is Balangir Town P.S. Case No.505 of 2023. He however admits that apart from the statement of the co-accused, Biswanath Sahoo in Balangir Town P.S. Case No.505 of 2023 and the confession of the petitioner himself, there is no material to connect him with the present case. He submits that investigation in the case is still open and as the petitioner is working as a home- guard and has helped the co-accused in transporting the contraband Page 4 of 6 ganja, he should not be released on bail. 10. As the sole basis of implication of the petitioner, is his own confession and the confession of the co-accused before the police, I am of the view that the limitation in Section 37 of the NDPS Act will not be a bar for considering his prayer for bail. In view of the decision of the Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu : (2020) 80 OCR SC 641, I am inclined to allow the prayer for bail. 11. Let the petitioner-Bijaya Kumar Sahu be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter, subject to verification that apart from Balangir Town P.S. Case No.505 of 2023 he does not have any criminal antecedents under the NDPS Act or the Orissa Excise Act., including the following conditions : (i) He will not indulge in any criminal activity while on bail. (ii) He will not threaten or try to influence prosecution witnesses while on bail. (iii) He will appear in the PuintalaPolice Station once a month preferably on the second Sunday between 4.00 p.m. to Page 5 of 6 6.00 p.m. (iv) He will co-operate with the trial and remain present in the trial Court on each date it is fixed for trial. 12. It is also made clear that in case further investigation reveals any other incriminating materials against the petitioner or he violates the conditions of bail, the prosecution should file an application for recall of this order or for cancellation of bail. 13. The BLAPL is accordingly disposed of. 14. Urgent certified copy of this order be granted as per rules. 15. A copy of this order be handed over to Mr. S.S. Mohapatra, learned Addl. Standing Counsel for onward transmission of the same to the IIC, Puintala Police Station. ………………………... (SAVITRI RATHO) JUDGE Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 20-May-2024 11:04:18 Page 6 of 6