Mrityunjay Mistry v. State of Odisha) was considered and disposed of by this Bench and t
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.11378 of 2024 Biplab Biswas State of Odisha …. …. -versus- Petitioner
Legal Reasoning
Mr. A.K. Jena, Advocate Opp. Party Mr. T.K. Dash, AGA CORAM: JUSTICE M.S.SAHOO Order No.
Decision
ORDER 06.12.2024 Hybrid Mode 01. 1. Under Section 439 of Cr.P.C. the BLAPL has been filed by the petitioner in jail 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 learned Sessions Judge-cum-Special Judge, Malkangiri, for alleged commission of offences under Sections 20(b)(ii)(C) of NDPS Act. 2. The matter has been listed before this Bench in terms of Standing Order No.2 of 2023 dated 21.05.2023, in view of the fact that earlier BLAPL No.6205 of 2023 (Mrityunjay Mistry v. State of Odisha) was considered and disposed of by this Bench and the present petitioner is a co-accused in the selfsame case. In the said order dated 12.12.2023, the following was observed. Page 1 of 6 “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: for Learned counsel the petitioner “1. submits that the petitioner was arrested from his home on 22.05.2023, whereas the allegations is that the contraband was seized on public road kept in three motor bikes on 11.04.2023. the petitioner was arrested It is, therefore, submitted that there was no conscious possession of any contraband when on 22.05.2023. 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 the further accommodation submissions of the learned counsel for the petitioner. to respond to As prayed for, list on 06.12.2023. Up-to-date instruction/case diary be obtained by the learned counsel for the State.” from recovered 3. Learned counsel for the petitioner submits that in view of the fact that as per prosecution case the conscious no contraband possession of the petitioner as 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 one criminal Page 2 of 5 antecedent 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. The learned ASC further refers to the one allegation of criminal antecedent of the petitioner which is also in sync with the police report. 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 the abandoned motor cycles, on 11.04.2023, petitioner-accused was arrested on 22.05.2023 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.” 3. It is submitted by the learned counsel for the petitioner that the petitioner is in custody since 14.10.2024 after he surrendered before the court in seisin of the matter. Page 3 of 5 It is submitted the final prosecution report has been submitted on 24. 10.2023. 4. It is submitted the petitioner is a co-accused and similarly situated, rather better situated in comparison to the persons bail granted earlier. 5. Learned Additional Government Advocate for the State referring to the materials contained in the case diary and the provisions of Section 37 of the NDPS Act, opposes the prayer for bail. However, it is not disputed at the bar that the petitioner is similarly situated and the co-accused have been granted bail as indicated above. 6. Having heard the learned counsel for the petitioner and learned Additional Government Advocate for the State, upon considering the materials on record and in view of the earlier order dated 12.12.2023 in BLAPL No.6205 of 2023 passed by this Court, 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. 7. 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 Page 4 of 5 not be treated to be any observation on merits of the case of the parties/prosecution in the pending trial. Urgent certified copy of this order be granted as per rules. ……………………… (M.S.Sahoo) Judge jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: ORISSA HIGH COURT Date: 07-Dec-2024 15:13:02 Page 5 of 5