The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.489 of 2025 Suresh Khillo …. Petitioner Mr. D. R. Bhokta, Adv. State of Odisha -versus- …. Opposite Party(s) Ms. Gayatri Patra, ASC CORAM: DR.JUSTICE S.K. PANIGRAHI Order No. ORDER 03.02.2025
Facts
FIR No. 17 Dated Police Station Case No. and Courts’ Name Sections Section 20(b)(ii)(c)/29 of the NDPS Act. 09.02.2020 Machhakund T.R Case No.12(A) of 2020 in connection with Machhakund P.S. Case No.17 of 2020 pending in of the Court learned Additional Sessions cum-Special Judge, Koraput Judge- 02. 1. This matter is taken up through hybrid arrangement. 2. Heard learned counsel for the Petitioner and learned counsel for the State. Page 1 of 7 3. The Petitioner being in custody in connection with Machhakund P.S. Case No.17 of 2020 corresponding to T.R Case No.12(A) of 2020 pending in the Court of learned Additional Sessions Judge-cum-Special Judge, Koraput, registered for the alleged commission of offence under Section 20(b)(ii)(c)/29 of the NDPS Act, has filed this application for his release on bail. 4. The brief fact of the case is that at the time of patrolling at Lamtapur area at about 11.20 A.M., the Police personnel, on suspicion, stopped one vehicle (Tata Indigo (Car) bearing registration No.OR02AP9769 coming from Lamtaput side to Jeypore near Government High School, Lamtaput. On search, they found 5 nos. of tinsel bags loaded inside the dickey of the said vehicle from which acute Ganja smell was coming out. There was one occupant, who is the driver of the vehicle. On being asked, he disclosed that his name is Md Alii Hussen Khan, S/o Md Maiudin Khan of Bhabanpur, Plant side, Rourkela. After observing all the formalities, they found that the total quantity of ganja was 125 kg and 500 gm. The accused disclosed that he has procured the Ganja from the present Petitioner and transporting the Ganja for one Babu of Panpas (Rourkela) from whom he got Rs. 10,000/-. Page 2 of 7 Accordingly, the Petitioner was arrested and has been languishing in custody since 01.07.2024. 5. Learned counsel for the Petitioner submits that the Petitioner has been falsely implicated in this case on the basis of the confessional statement of the main accused, namely, Md. Alli Husen Khan. He further submits that the Petitioner is the sole bread earner of his family and in his absence, there is no other male member in his family to look after his family members. He further submits that except this case, the Petitioner has no other criminal antecedents. In view of all these above, he urges for grant of bail to the Petitioner on such terms and conditions as deemed just and proper. 6. Learned counsel for the State vehemently opposes the bail prayer of the Petitioner. 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 1 (2021) 4 SCC 1 Page 3 of 7 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: “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:
Legal Reasoning
“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 2 2024 SCC OnLine SC 572 Page 4 of 7 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 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. Considering the submissions made on behalf of both the parties and the precedents cited above, 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. 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; Page 5 of 7 ii. iii. iv. 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; the Petitioner shall plant 100 saplings of local variety like mango, neem, tamarind etc. around his village over the Government land/ community land/ private land, if it is in the possession of the Petitioner or his family members. Violation of any of the above conditions shall entail cancellation of the bail. 9. The District Nursery/D.F.O shall extend the helping hand by supplying the saplings to the Petitioner and the Revenue Authority shall assist the Petitioner in identifying the location for plantation of the saplings. If the land is not available, the Petitioner to approach the Revenue Authority for identifying the land for plantation and the Revenue Authority shall do the needful. 10. 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 or not. 11. It is further made clear that the Petitioner shall file an affidavit after plantation of the saplings before the local Police Station assuring that he will maintain those plants Page 6 of 7 for two years. The said affidavit be also produced before the learned court below at the time of trial.
Decision
12. The BLAPL is, accordingly, disposed of. Judge (Dr. S.K. Panigrahi) Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 04-Feb-2025 18:11:17 Page 7 of 7