The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.3544 of 2024 An application under Section 439 of Cr.P.C. Pramod Kumar Tandi @ Tuna … Petitioner -versus- State of Odisha …. Opp. Party Advocates appeared in this case through Hybrid Mode : For Petitioner : Mr.S.S.Ray, Advocate For Opp. Party : Mr.Priyabrata Tripathy, ASC CORAM: JUSTICE SAVITRI RATHO .…………………………………………………………………………………… Date of Judgment : 21.05.2024 ……………………………………………………………………………………. Savitri Ratho, J. This is the second successive application under Section 439 of Cr.P.C. by the petitioner in this Court in connection with Mohana P.S. Case No.120 of 2023 corresponding to G.R. Case No.82 of 2023 pending in the file of learned Sessions Judge-cum-Special Judge, Gajapati at Parlakhemundi. Chargesheet dated 02.03.2024 has been submitted by the Inspector of Police, State Task Force Police Station, (in short “STF PS") Bhubaneswar ID CB against the petitioner and co-accused Sarat Kumar Dey under Section 20 (b) (ii) (C) / 25 / 29 of the Narcotics Drugs and Psychotropic Substances Act ( in short “NDPS Act”), keeping investigation open under Section 173 (8) Cr.P.C. BLAPL No.3544 of 2024 Page 1 of 9 for further investigation including arrest of co-accused Samuel @ Samuel Majhi, Guru Majhi, Ayub Majhi @ Abya @ Aebo and Karuna Gamango obtaining criminal antecedents and to complete financial investigation. 2. The earlier application of the petitioner -BLAPL No.11589 of 2023 had been dismissed by me on 19.10.2023 granting liberty to the petitioner move for bail afresh after completion of investigation. 3. Thereafter he has moved learned Sessions Judge-cum-Special Judge, Gajapati for bail, but his prayer was rejected on 04.04.2024. 4. The prosecution case in brief is that on 20.08.2023 at 5.00 a.m., a Tata-709 truck bearing Registration No.OD-07-F-2979 seeing the Policeman stopped 50 metres from the police party. The driver and one occupant got down from the truck and ran away. On search 135 jari bags containing 4335 Kgs. 500 grams of contraband ganja were recovered from the truck. As the occupants of the truck ran away from the spot, the police was unable to nab them immediately. The case was registered against the driver of the truck and an unknown person. During investigation, the petitioner was arrested on 11.09.2023. Investigation of the case was taken over by the STF on 10.10.2023 and chargesheet dated 02.03.2024 has been submitted against the petitioner and co accused Sarat Dey keeping investigation . 5. I have heard learned counsel for the petitioner and the learned State Counsel and carefully gone through the records including the case diary. BLAPL No.3544 of 2024 Page 2 of 9 6.
Legal Reasoning
Mr.S.S.Ray, learned counsel for the petitioner has submitted that the petitioner is in custody since 10.09.2023 and after completion of investigation, chargesheet has been filed on 02.03.2024. He further submits that the petitioner had not been named in the FIR nor is there any allegation in the FIR that any car or motorcycle was escorting the truck from which ganja has been seized. There has been no recovery of ganja from his exclusive and conscious possession of the petitioner. He further submits that the statements of Sunam Majhi and Niranjan Majhi had been subsequently recorded by the police and their statements do not corroborate the F.I.R. He finally submits that and at best an offence under Section 29 of the NDPS Act may be made out against the petitioner, so Section 37 of the NDPS Act will not be a bar for considering his prayer for bail. 7. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel opposed the prayer for bail stating that a huge quantity of ganja. i.e., 4335kgs 500 grams has been recovered from the truck in question and in view of the statement of Sunam Majhi and Niranjan Majhi, it is apparent that the petitioner is involved in collection and transportation of the ganja. He has submitted that chargesheet has been submitted on 02.03.2024 against the present petitioner- Pramod Kumar Tandi @ Tuna and co-accused, Sarat Kumar Dey, but investigation has been kept open for arrest of other accused persons, namely, Samuel @ Samuel Majhi, Guru Majhi, Ayub Majhi@ Abya @ Aebo and BLAPL No.3544 of 2024 Page 3 of 9 Karuna Gamango, for obtaining their criminal antecedents and to complete financial investigation. He has also submitted that the petitioner has the following six criminal antecedents of similar nature, so he should not be released on bail: (1) Gunupur P.S. Case No.139/2020 under Section 20 (b) (ii) (C) of NDPS Act (2) Kesinga P.S. Case No.240/2021 under Section 20 (b) (ii) (C)/28 of NDPS Act (3)Kesinga P.S. Case No.227/2019 under Section 20 (b) (ii) (C) of NDPS Act (4)Padmapur P.S. Case No.121/2023 under Section 20 (b) (ii) (C)/25 and 29 of NDPS Act (5) Adava P.S. Case No.125/2020 under Section 20 (a) (i) of NDPS Act (6) New Delhi, Chanakyapur P.S. Case No.77/2023 under Section 77/2023 under Section 20 (b) (ii) (C) of the NDPS Act, 8. Section – 37 of the NDPS Act extracted below: “37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— BLAPL No.3544 of 2024 Page 4 of 9 (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” In the case of Union of India vs Md. Nawaz Khan : (2021) 10 SCC 100, the Supreme Court while cancelling the bail granted to an accused alleged to have committed offences under Section - 8 , 21 , 27 –A and 29 of the NDPS Act, relied on its earlier decisions in the cases of Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798 and Union of India v. Prateek Shukla (2021) 5 SCC 430, and observed that stringent parameters for the grant of bail under the NDPS Act have been prescribed in order to curb the menace of drug-trafficking in the country and bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act and the following test should be applied while considering the prayer for bail : “23. Based on the above precedent , the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused BLAPL No.3544 of 2024 Page 5 of 9 has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 9. “Investigation” is defined in Section 2(h) of the Cr.P.C as “ all the proceedings conducted by the police officer to collect the evidence associated with the crime”. 10. The object of filing of a First Information Report ( in short “F.I.R.”) is to set the criminal law in motion and to enable investigation to be started and the investigating officer to collect material related to the crime. It is also the settled position of law that an FIR is not the encyclopedia of the prosecution case. Therefore investigation cannot be confined to only the events described in the FIR . 11. In Superintendent of Police, CBI and Ors. v. Tapan Kumar Singh : (2003 (6) SCC 175), the Supreme had held as follows : “20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that BLAPL No.3544 of 2024 Page 6 of 9 the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is BLAPL No.3544 of 2024 Page 7 of 9 named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.” 12. In the present case, FIR had been registered on 20.08.2023 against the driver of the truck and an unknown person, without naming them as their names were not known at that time. There is no mention of the name of the petitioner or the role played by him in the FIR or in the statements of witnesses who had seen the truck stop and its occupants run away. Niranjan Majhi and Sunam Majhi who have been examined on 21.08.2023 have stated in their statements recorded under Section 161 Cr.P.C that the petitioner and co accused Samuel Majhi, Guru Majhi, Abeo Majhi had procured the ganja and supplied it to co-accused Sarat Dey for pecuniary gain and the petitioner was in the habit of collecting ganja from Adava and Kendugada area and storing it and later transporting it to adjoining states and on 18.08.2023 the petitioner along with Sarat Dey and other co accused had collected the ganja and stored it in the house of co accused Samuel Majhi and Guru Majhi of Mahagudi Village, where they packed the ganja in packets. On 19.08.2023 late night, they loaded the ganja in the truck fitted with duplicate number plate. Co accused Sarat Dey has been arrested on 11.10.2023 and has BLAPL No.3544 of 2024 Page 8 of 9 implicated the petitioner in his confession. However this confession is not the only material against the petitioner. 13. Therefore, the submission of Mr. Ray, learned counsel, that as the statements of witnesses examined during investigation do not corroborate the FIR and there is no allegation against the petitioner in the FIR, he should be granted bail being bereft of merit is rejected . 14. In view of the quantity of ganja seized and the nature of materials collected against the petitioner and his criminal antecdents (which are of similar nature), I am of the view that the embargo contained in Section 37 of the NDPS Act is attracted, for which I am not inclined to release the petitioner on bail. The prayer for bail is accordingly rejeceted. 15. The BL APL is dismissed. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 21st May, 2024/Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 03-Jun-2024 17:15:43 BLAPL No.3544 of 2024 Page 9 of 9