The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.3187 of 2024 Asit Manadal ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. - Nihar Ranjan Sahoo Opposite Party Represented By Adv. – Mr. U.C.Jena, A.S.C. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 26.11.2024 07. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioner and learned Additional Standing Counsel appearing for the State-Opposite Party. Perused the materials placed before this Court. 3. The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection with Special G.R. Case No-27/2024, arising out of Kalimela P.S. Case No-39/2024, pending in the Court of learned Sessions Judge Court, Malkangiri for alleged commission of offence punishable under Sections 20(b)(ii)(c)/29 & 27(a) of the N.D.P.S. Act. 4. Learned counsel for the Petitioner submits that earlier this matter was not before any of the bench of this Court. It is submitted Page 1 of 5. by the learned counsel for the Petitioner that the Petitioner is in custody since 25.01.2024. He further contended that in the meantime the investigation has been concluded and the final charge sheet has been filed. Learned counsel for the petitioner, further referring to the prosecution case, submitted that as per the F.I.R. allegation a total quantity of 631 kg of contraband ganja was recovered by the police while the same was being illegally transported in a Tata Eicher vehicle on 23.01.2024 at about 10.30 A.M. The said vehicle was coming from Gumphakonda side and going towards Motu side. Two persons were arrested from the spot and from their possession a total quantity of 631 Kg. of contraband ganja was recovered. Learned counsel for the petitioner further submitted that during interrogation, the abovenamed co-accused persons have given out of the name of the present petitioner. It is alleged that the abovenamed two co- accused persons purchased the contraband ganja from the present petitioner. It is stated that since the co-accused persons failed to produce any documents in respect of the aforesaid transportation, the police party stopped the vehicle, seized the contraband ganja and arrested the abovenamed two accused persons from the spot. On the statement of the co-accused persons the present petitioner has been implicated in the present case. Learned counsel for the petitioner at the outset submitted that neither the present petitioner was present at the spot of occurrence, nor was any contraband article recovered from the conscious and exclusive possession of the present petitioner. In such view of the mater, learned counsel for the petitioner further contended that the bar under Section 37 of NDPS Act would not be attracted to the facts of the petitioner’s case. He further submitted that although charge sheet has been filed, the only material, as has been shown in the charge sheet, on the basis of Page 2 of 5. which the petitioner has been implicated in the present case is the statement of the co-accused persons. In the aforesaid context, learned counsel for the petitioner, referring to the judgment of the Hon’ble Supreme Court in Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1 and order dated 10.01.2022 in the matter of State by (NCB) Bengaluru Vs. Pallulabid Ahmad Arimuta and another (Special Leave to Appeal (Criminal) No.242 of 2022), contended that the statement of the co-accused is not admissible is evidence in view of the bar contained in Section 67 of the NDPS Act. Therefore, the petitioner cannot be detained in custody only on the basis of the co-accused statement. He further submitted that the petitioner is having two similar criminal antecedents. In such view of the matter, learned counsel for the Petitioner submitted that the Petitioner be released on bail on any terms and condition deem proper by this Court, which the Petitioner undertakes to abide by while on bail. 5. Learned Additional Standing Counsel appearing for the State- Opposite Party, on the other hand, opposed the release of the Petitioner on bail on the ground that in the event the Petitioner is released on bail, there is a possibility that he might be involved in similar criminal offences. Learned Additional Standing Counsel submitted that considering the nature of allegation and the contraband used in the present case, the release of the petitioner would be a threat to the society. Therefore, he submitted that the prayer for bail of the Petitioner be rejected at this juncture. 6. Considering such submissions made by the learned counsels appearing for the respective parties, on a careful examination of the materials on record, further keeping in view the surrounding facts and circumstances leading to seizure of the contraband article, this Page 3 of 5. Court observes that two persons, while illegally transporting of contraband ganja weighing 631 kg, were detained and subsequently arrested on 23.01.2024. Therefore, a case NDPS Act is well made out against the abovenamed two accused persons. However, so far the petitioner is concerned, it appears that he was neither present at the spot nor has anything been recovered from his conscious and exclusive possession. The only material against the present petitioner is the statement of the co-accused persons, wherein co-accused persons implicated by the petitioner by alleging that they purchased the contraband article from the present petitioner. On a careful examination of the charge sheet, this Court observes that prosecution has failed to establish a link between the petitioner and the co- accused persons who have been arrested. The only material against the petitioner, at this stage, appears to be the statement of the co- accused persons. Therefore, the complicity of the petitioner in the present crime can only be established during trial by leading evidence from both sides. 7. In such view of the matter, taking into consideration the factual matrix of the present case, the observations made above as well as keeping in view the principle laid down by the Hon’ble Supreme Court in Tofan singh’s Case (Supra) and the fact that the bar under Section 37 would not be attracted to the case of the present petitioner, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/-(Rupees fifty thousand) with two local solvent sureties for the like amount to the satisfaction of the Court in seisin over the matter subject to the following terms and conditions: I) he shall not indulge in similar criminal offences; Page 4 of 5. II) shall cooperate with investigation; III) shall appear before the I.O. as and when required for the purpose of investigation; and IV) shall appear before the Trial Court on each and every date fixed. Violation of any of the terms and conditions shall entail cancellation of bail. 8. It is open for the Court in seisin over the matter to impose any other conditions as may be deemed just and proper. 9. It is further directed that the bail granted to the Petitioner is subject to the condition that the court below shall verify whether the Petitioner is having any criminal antecedent of similar nature. In the event it is found that the Petitioner is having more than two similar criminal antecedents, this bail order shall automatically stand revoked. 10. The BLAPL is, accordingly, disposed of. ( A.K. Mohapatra) Judge Rubi Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Nov-2024 18:07:01