The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.66 of 2025 Kabul @ Laxman Khora @ Kabula Khora …. Petitioner Mr.P.K.Maharaj, Advocate State of Odisha …. Opp. Party -versus- Mr.Bibekananda Nayak, AGA CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
Order No. ORDER 19.02.2025 01. 1. The petitioner is seeking quashing of the entire criminal prosecution in connection with T.R. Case No.35 of 2018 arising out of Machhkund P.S. Case No.80 of 2018 registered for the alleged commission of the offence punishable under Sections 20(b)(ii)C/29 of the N.D.P.S. Act pending in the Court of the learned Additional Sessions Judge-cum-Special Judge, Koraput. 2. The charge sheet has been filed in the present case on 23.12.2019 against four accused persons. The petitioner appears to have been absconding. Therefore, the trial qua the petitioner has been spilted up. Page 1 of 6 3. Three accused persons have faced the trial. The learned Additional Sessions Judge-cum-Special Judge, Koraput, vide its judgment dated 02.12.2024 in T.R. No.35/2018 recorded an acquittal in favour of the accused persons, those who have faced the trial. 4. Mr. Maharaj, learned counsel for the petitioner submits that the petitioner has been implicated in the present case on the basis of the confessional statement of one of the principal accused, who was put to trial and has been acquitted. He has relied upon paragraph-12 of the judgment of the learned Court below, which reads thus: for is ascertained its safe custody and “12. Moving ahead, P.W.1 is stated to have put his brass seal on each ganja bags after being weighed and thereafter he made over the same to S.I. Pradeep Kumar Nayak and keeping the same in the P.S. Malkhana for production before the court as per the procedure under the NDPS Act. According to P.W.1, after completion of formalities of search and seizure he drew plain paper F.I.R., registered the same vide Machhkund P.S. Case No.80, dated. 30.09.2018 and directed S.I. of police Pradeep Kumar Nayak to take up investigation of the case. On perusal of Ext.P-18, it registered Machhkund P.S. Case No.80/2018 on the same day i.e. on 30.09.2018 and directed S.I. of police P.K. Nayak (P.W.12) to take up investigation of the case. During the course of investigation, P.W.12 examined the complainant and other witnesses, made entry of the Mal Items received from P.W.1 and kept the mal item in P.S. Malkhana vide M.R. No.18/2018 in compliance to section 55 of NDPS Act and also entered the fact in the General Diary. But, during cross-examination he stated that he has not resealed the contraband articles before keeping the same in the police station malkhana. Surprisingly, P.W.12 stated during cross-examination that except visiting the spot and preparing spot map, he has not done anything in this case. Further, it is claimed by that P.W.1 has Page 2 of 6 in sealing that P.W.1 sealed the prosecution the seized contraband ganja packets as “1” to “94” with the wax impression of his personal brass seal and left his personal brass seal in zima of the Executive Magistrate. Admittedly, the Executive Magistrate has not been examined in this case and the brass seal the seized which has been used contraband ganja packets, has not been produced and proved in this case. P.W.12 further stated that he made prayer before the Court for drawing of sample and forwarding the same to the R.F.S.L., Berhampur for chemical examination and opinion. Evidence of P.W.12 further reveals that after drawing three sets of sample by the S.D.J.M., Korapt from the bulk ganja jerry bags, those were marked and were sent to the RFSL, Berhampur through constable 904 Prafulla Kumar Nayak under the forwarding letter of the S.D.J.M., Koraput vide Ext.P- 31/P.W.12 under Mal Challan vide Ext.P- 31/2/P.W.12. Further, the brass seal of P.W.1 has not been produced or proved in this case. The station diary entry or the Malkhana register which contains the entry with regard to Entry No.18/2018 and 19/2018 have not been produced and proved in this case.” 5. Mr. Maharaj, learned counsel for the petitioner also relied upon the judgment of the Hon’ble Supreme Court in the case of Karan Talwar vs. State of Tamil Nadu, reported in 2024 SCC OnLine SC 3803. Relevant paragraphs-11 & 12 reads thus: “11. When this be the position, the question is whether the two Courts were justified in holding that there is prima facie case against the appellant to proceed against him. In this contextual situation, it is relevant to refer to the decision of this Court in Dipakbhai Jagadishchandra Patel v. State of Gujarat5 Paragraphs 23 and 24 of the said decision are relevant for the purpose of this case and they read thus:— “23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post Page 3 of 6 office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused trial. A strong to stand suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima the accused has that committed the offence. facie view of this Court Kalani [Suresh containing 24. Undoubtedly, this Court has in Suresh Budharmal Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337], taken the view that confession by a co- accused incriminating matter against a person would not by itself suffice to frame charge against it. We may incidentally note that the Court has relied upon the judgment in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275]. We notice that the observations, which have been relied upon, were made in the context of an appeal which arose from the conviction of the appellant therein after a trial. The same view has been followed undoubtedly in other cases where the question arose in the context of a conviction and an appeal in Suresh Budharmal Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337], the Court has proceeded to take the view that only on the basis of the statement of the therefrom. However, Kalani [Suresh Page 4 of 6 co-accused, no case is made out, even for framing a charge.” 12. As noted hereinbefore, the sole material available against the appellant is the confession statement of the co-accused viz., accused No. 1, which undoubtedly cannot translate into admissible evidence at the stage of trial and against the appellant. When that be the position, how can it be said that a prima facie case is made out to make the appellant to stand the trial. There can be no doubt with respect to the position that standing the trial is an ordeal and, therefore, in a case where there is no material at all which could be translated into evidence at the trial stage it would be a miscarriage of justice to make the person concerned to stand the trial”. 6. Relying upon the aforementioned judgment of the Hon’ble Supreme Court, Mr. Maharaj, learned counsel for the petitioner submits that the facts of the present case resembles with the case cited above. The case of the petitioner is directly covered by the aforementioned judgment of the Hon’ble Supreme Court. 7. Mr. Nayak, learned Additional Government Advocate for the State submits that petitioner who has been absconding cannot derive the benefit of the evidences adduced by the prosecution vis-à-vis the accused persons who have faced the trial. The learned trial Court has appreciated the evidence which has come on record vis-à-vis the three accused persons those who have faced the trial. Hence, the finding of the learned trial Court in the judgment dated 02.12.2024 passed in T.R. No.35/2018 while acquitting the accused shall not inure to the benefit Page 5 of 6 of the petitioner. 8. I have taken into consideration the submissions made by the learned counsels for the parties at the Bar and also perused the evidence on record. I am not inclined to entertain the present petition at this stage. However, regard being had to the facts of the present case and the nature of the evidence which has come on record vis-à-vis the three accused persons are concerned, the petitioner has been implicated on the basis of the confessional statement of the principal accused who has already been acquitted, I am of the considered view that the learned trial Court shall do well to see that the trial in the present case is completed as expeditiously as possible, preferably within a period of three months since the petitioner is in custody. 9. With the aforementioned observation, the CRLMC is disposed of. Judge (S.S. Mishra) Subhasis Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 20-Feb-2025 18:52:20 Page 6 of 6