The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 12713 of 2022 Rakesh …. Petitioner Mr. M. Padhy, Advocate -versus- State of Odisha …. Opp. Party
Legal Reasoning
Mr. S.S. Kanungo, Addl. Govt. Advocate CORAM: JUSTICE M.S. SAHOO Order No. 7. RJ
Decision
ORDER 11.10.2023 Hybrid Mode 1. It is very emphatically submitted by the learned counsel for the petitioner that since the Chemical Examination Report has not been filed with preliminary charge-sheet, the petitioner is entitled for bail in view of the order passed by the coordinate Bench dated 18.09.2023in BLAPL No.4758 of 2023. 2. The Order dated 22.10.2022 passed in T.R. No.41 of 2022 by the learned Addl. Sessions Judge-cum- Special Judge, Koraput indicates the following:- “xxx xxx xxx Perused the case record such as, F.I.R., forwarding report of the I.O., Statement of witnesses recorded under Section 161 of Cr.P.C., seizure lists, weighment chart, charge sheet and other connected papers available on record and found that the accused has been charge sheeted for allegedly U/s.20(b)(ii)(C) of N.D.P.S. Act having possessed 542 Kgs. And 100 grams of contraband ganja. It is alleged in the F.I.R. that on 04.04.2022, Sri Damburudhar Batria, S.I. of // 2 // Police, Machhkund Police Station along with staff left P.S. to verify the veracity of information received by the I.I.C., Machhkund P.S. regarding transportation of contraband ganja in one Eicher truck bearing Regd. No.UP-33AT-7508. At 5 A.M., when the police team were performing vehicle checking from Badkichab side to Lamptaput, stopped the said vehicle along with the accused (driver). On verification of the said Eicher truck they found 18 numbers of tinsel jerry bags inside the truck having smell of ganja along with the present accused. S.I. of police also recovered and seized 542 Kgs. And 100 grams of contraband conscious ganja possession of the accused after observing all formalities of search and seizure under N.D.P.S. Act which comes within the definition of commercial quantity. Again, Section 37 of the N.D.P.S. Act stands as a bar in releasing the accused on bail, The offence is not only heinous in nature, but also anti-social in nature. Besides, the accused is an outsider belongs to the state of Uttar Pradesh for which there is every chance of his absconding, in the event, he is released on bail. Again, his release on bail will have adverse affect on the society.” the exclusive and from 3. Learned counsel for the petitioner has not produced any such order apart from making bald allegation that the case is pending for submission of the Chemical Examination Report. Order dated 18.09.2023 passed by the coordinate Bench at para-5, 6, 7 and 9 indicates the following:- “5. It is further submitted that the case is lingering because of prosecution is not able to furnish Chemical Examination Report and the case is still at the stage of framing of charge. In this context, he relies on the order no.32 dated 9.8.2023 passed by the learned Addl. Sessions Judge-cum-Special Judge, Jeypore I/c, which is Page 2 of 5 // 3 // extracted hereunder: “xxx xxx xxx 32. The record is posted today awaiting for C.E. report and for framing of charge. the from Accused Narayana Bishnoi is not produced from Sub- Jail, Kotpad, Material object & Chemical Examination report not received i.I.C., Boiparguda P.S. Put up on 09.08.2023 for awaiting M.O. & C.E. Report. Now the case stands posted to 26.09.2023 for framing of charge. No P.O. has joined since 01.06.2023. Accused persons be produced on the date fixed. xxx xxx xxx” 6. Learned counsel for the State submits that merely because C.A. Report has not been submitted that does not entitle the Petitioner to be released on bail in view of Section 37(10 of the N.D.P.S. Act and also relies on the judgment of this Court in case of Sarukh @ Sarukh Alli Khan vrs. State of Odisha (BLAPL No.2617 of 2023 disposed of on 08.09.2023). 7. Referring to the said learned counsel for the Petitioner submits that this Court was not inclined to exercise the discretion in the said case since during pendency of the case CE Report was filed before the learned court in seisin. Hence, ex facie the ratio of this said case is not attracted in the present case. 9. Admittedly in the case at hand, as has been noted in the order sheet of the learned Court in seisin, extracted hereinabove, the CE Report has not been submitted and the Petitioner is in custody for more than a year and charge is yet to be framed. ” judgment, Page 3 of 5 // 4 // 4. Learned Addl. Govt. Advocate submits that the Investigating Agency has filed A.P.R. keeping the investigation open and at best the said A.P.R. is preliminary in nature and can be supplemented thereafter. He further submits that the sample for Chemical Examination of the contraband ganja which was seized from a Truck registered in Uttar Pradesh bearing Regd. No.UP-33AT-7508 and the officer after seizing the contraband on 04.04.2022 with his experience identified it to be ‘ganja’, weighed to be 542 Kg. and sent sample for Chemical Examination by following proper procedure immediately on 04.04.2022 to the R.F.S.L. 5. Learned counsel for the petitioner was specifically asked to point out any provision which mandates that unless the Chemical Examination report is filed, the petitioner is entitled to bail in view of any statutory mandate to file Chemical Examination Report. Learned counsel for the petitioner refers to Section 36-A (c) of the N.D.P.S. Act, 1985 which is quoted herein:- (b), “36-A(c) the Special Court may exercise, in relation to the person forwarded to it under Clause the same power which a Magistrate having jurisdiction to try a case may exercise under Sec. 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section.” In considered opinion of this Court, a plain reading of the aforesaid provision does not support the Page 4 of 5 // 5 // contention of the learned counsel for the petitioner. 6. In considered opinion of this Court, since the facts of the present case are different from the case cited at the Bar by the learned counsel for the petitioner i.e. Narayan Bishnoi vrs. State of Odisha (BLAPL No.4758 of 2023), this Court is not inclined to exercise its discretion to grant bail to the petitioner at this stage. Accordingly, the BLAPL is dismissed. 7. Learned court in seisin is also requested to expedite obtaining of the Chemical Examination Report from the concerned R.F.S.L. as per mal challan as indicated in the forwarding report dated 04.04.2022 corresponding to Machhkund P.S. Case No.31/2022. Registry shall communicate the order to the learned court in seisin. (M.S. Sahoo) Judge Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Designation: Personal Assistant Reason: Authentication Location: ohc Date: 19-Oct-2023 18:08:28 Page 5 of 5