The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 3488 of 2025 Tukuna Behera …. Petitioners Mr. Sidhartha Sankar Ray, Adv. State of Odisha -versus- …. Opposite Party Ms. Siva Mohanty, ASC CORAM: DR.JUSTICE S.K. PANIGRAHI Order No.
Decision
ORDER 07.05.2025 F.I.R. No. Dated Police Station Case No. and Courts’ Name Sections 182 07.08.2025 Gunupur Section 20(b)(ii)(C)/ 29 N.D.P.S. Act. of Case T.R. No.96(A) of 2024 pending in the court of learned Addl. Sessions Judge- cum-Spl. Judge, Gunupur 01. 1. This matter is taken up through hybrid arrangement. 2. Heard learned counsel for the parties. 3. The petitioner being in custody in connection with T.R. Case No.96(A) of 2024 arising out of Gunupur P.S. No.182/2024, pending in the court of the learned Addl. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 27-May-2025 13:16:57 Page 1 of 6 Sessions Judge-cum-Spl. Judge, Gunupur, registered for the alleged commission of offence under Section 20(b)(ii)(C)/ 29 of N.D.P.S. Act., has filed this petition for his release on bail. 4. The brief fact of the case is that on 07.08.2024 at 2.30 P.M while the SI of police, Gunupur P.S. Sri Ranjit Tripathy along with other staff of Gunupur P.S. were performing patrolling duty in and around Gunupur town area, received information from reliable source that two persons were standing near Railway station in front of Electric office, Gunupur with two bags with contraband ganja and were waiting for train. The S.I. Sri Tripathy intimated the fact to the IIC, Gunupur P.S. over mobile phone and proceeded to Railway station. At about 3.05 P.M the S.I. detained two persons with two bags from which acute smell of ganja was coming out. On being asked, the accused persons disclosed their names as Mahendra Choudhury and Abhishek Kumar. They further disclosed that they had procured ganja from one Anand Beera of village Dabarkan and one Tukuna Behera of village Khambariguda and were transporting the ganja to Bihar for the purpose of sale in high price. The SI Sri Tripathy after observing all formalities of search, recovered and seized two jerry bags containing 76 Kg. 200 grams of ganja from the possession of the accused persons. Hence, this case. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 27-May-2025 13:16:57 Page 2 of 6 5. Learned counsel for the Petitioner submits that nothing has been seized from the conscious possession of the present Petitioner. He further submits that the Petitioner is in custody since 30.03.2025. Hence, he submits that, the prayer of the present Petitioner may be allowed. 6. Learned counsel for the State vehemently opposes the prayer for bail stating that the quantity of ganja seized is clearly above the commercial quantity prescribed under the Act which bars granting of bail. 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: 1 (2021) 4 SCC 1 Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 27-May-2025 13:16:57 Page 3 of 6 “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 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 2 2024 SCC OnLine SC 572 Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 27-May-2025 13:16:57 Page 4 of 6 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 under Article 21 of the Constitution of India, this Court finds no cogent or compelling ground to deny the relief of bail. 8.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. 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; iv. The Petitioner, after the onset of monsoon (in between the months of July and August, 2025), shall plant 100 saplings each of local varieties, such as mango, neem, tamarind, etc., around their village on Government land, community land, or private land in the possession of the petitioner or his family members. In the event that suitable land is Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 27-May-2025 13:16:57 Page 5 of 6 unavailable, the Revenue Authority shall assist in identifying land for the plantation. Violation of any of the above conditions shall entail cancellation of the bail. 9. 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 as required. 10. It is further directed that the Petitioner shall file an affidavit before the local police station, confirming that the saplings have been planted and that the petitioner will maintain those plants for a period of two years. 11. The District Nursery/District Forest Officer (D.F.O.) shall extend assistance to the petitioner by supplying the necessary saplings. 12. The BLAPL is, accordingly, disposed of. Judge (Dr. S.K. Panigrahi) Murmu Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: OHC Date: 27-May-2025 13:16:57 Page 6 of 6