Hari Khada vs State Of Odisha
2021 Latest Caselaw 9155 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                               BLAPL No. 8345 of 2020

              Hari Khada                     ....        Petitioner
                                  Mr. Asit Kumar Jena, Advocate
                                   -versus-
              State of Odisha                ....       Opp. Party
                      Ms. S. Mishra, Additional Standing Counsel

                               CORAM:
                               JUSTICE S. K. PANIGRAHI

                                            ORDER

Order No. 01.09.2021

04. 1. This matter is taken up by virtual/physical mode.

2. Heard, learned counsel for the Petitioner and learned counsel for the State.

3. The Petitioner is in custody in connection with Mathili PS Case No. 146 of 2020 corresponding to TR Case No. 125 of 2020, pending in the court of the learned Sessions Judge-cum-Special Judge, Malkangiri, registered for the alleged commission of offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act, has filed this application under Section 439 of CrPC for his release on bail.

4. The allegation of the prosecution is that while the Police were on patrolling duty, they found that two AKP motor cycles were coming holding two bags. On suspicion, police detained the motor cycles, // 2 //

searched them and found 52.100 KG contraband 'ganja'.

5. Learned counsel for the Petitioner submits that in the instant case the contraband 'ganja' has not been recovered from the conscious possession of the petitioner. Rather he has been entangled in this case only on the basis of the statement of co- accused. The co-accused has admitted that there are telephonic conversations between them regarding the procurement of such contraband 'ganja'. The Petitioner has been implicated in this case as a facilitator of the transaction as his name was mentioned by the co-accused without any basis. Learned counsel further advances his argument citing some Hon'ble Supreme Court's Judgment in the case of Surinder Kumar Khanna vs. Intelligence Officer1 has held that mere confessional statement or disclosure statement cannot be taken as substantive piece of evidence. It has also been held that the confessional statement of the co-accused cannot be taken as substantive piece of evidence against another co-accused. Admittedly, nothing has been recovered from the conscious possession of the Petitioner. Hence, the Petitioner does not come under the purview of Section 37 of the NDPS Act. The Petitioner has been

AIR 2018 SC 3574

// 3 //

languishing in custody since 13.11.2020. Charge- sheet has been filed and investigation is still open.

6. Learned counsel for the State vehemently opposes the bail prayer of the Petitioner.

7. Considering the submissions made, facts and circumstances, perusal of the case record, the Petitioner makes out a fit case for grant of bail and it is directed that the Petitioner be released on bail with some stringent terms and conditions as deemed just and proper by the court in seisin over the matter in the aforesaid case with further conditions that:-

i. the Petitioner shall appear before the learned trial court on each date of posting of the case;

ii. he shall not indulge in similar activities in future and

iii. he shall not tamper the evidence of the prosecution witnesses in any manner.

8. Violation of any of the conditions shall entail cancellation of the bail.

9. The BLAPL is accordingly disposed of.

10. Urgent certified copy of this order be granted on proper application.

(S. K. Panigrahi) Judge