Orissa High Court
Haroon vs State Of Odisha on 25 April, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.8719 of 2021
Haroon .... Petitioner
Mr. A.P. Bose, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. K.K. Nayak, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 25.04.2022
05. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner and learned
Additional Standing Counsel for the State. Perused the case diary,
F.I.R., charge-sheet and the statement of the witnesses.
3. The present bail application has been field by the Petitioner
under Section 439, Cr.P.C to release the Petitioner on bail, who is in
custody in connection with Similiguda P.S. Case No.85 of 2019
corresponding to T.R. Case No.22 of 2019, pending in the court of
learned Additional Sessions Judge-cum-Special Judge, Koraput for
commission of offences under Section 20(b)(ii)(C) of the N.D.P.S.
Act.
4. The bail application filed by the Petitioner before the learned
Sessions Judge-cum-Special Judge, Malkangiri, which was rejected
by order dated 27.08.2021.
5. The prosecution story, in nutshell, is that one Bhagaban
Mishra, now working as a Sub-inspector of Police in Similiguda P.S
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is that on dated 17.09.2019, he along with other staff performing
duty on Nandapur Similiguda (MDR 55) they coming from
Nandapur side and crossed their vehicle in very high speed. They
chased and could able to stop at Pattangi Chowk. On verification,
they know that some jerry bags were loaded on the gap between the
two tarpaulin used for covering the dala in concealed manner from
which acute smell of ganja coming out. On being asked both the
detainees disclosed their name as (1) Ashok Kumar (2) Kuldip
Singh. During their interrogation, they disclose that Haroon and
Sahu Babu Kumudi were managed to escape from the spot after
observing all the formalities of search and seizure as enshrined in
NDPS Act, they recovered and seized 378 Kgs. 400 grams of ganja
from the said vehicle. Hence this case.
6. Mr. Bose, learned counsel for the Petitioner submits that the
Petitioner has been implicated in this case on the basis of the
statement of the co-accused. He further submits that the police has
submitted charge-sheet in the case after concluded the investigation.
Learned counsel for the Petitioner further submits that the Petitioner
was neither arrested from the spot nor any contraband ganja was
seized from the exclusive and conscious possession of the Petitioner.
As such, no case under the NDPS is made out against the Petitioner.
He further submits that in view of the judgment delivered by the
Hon'ble Supreme Court of India in the case of Tofan Singh vrs.
State of Tamilnadu : reported in (2021) 4 SCC1 and order dated
10.01.2022 in the matter of State By (NCB) Bengaluru vrs.
Pallulabid Ahmad Arimuta and another (Special Leave to Appeal
(Criminal) No.242 of 2022). The statement made by the co-accused
under Section 67 of the N.D.P.S. Act is not admissible in evidence.
7. In such view of the matter, learned counsel for the Petitioner
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prays that the Petitioner may be released on bail. Learned counsel for
the Petitioner further contended that the procedure has laid down in
Sections 42 and 50 of the N.D.P.S. Act have not been followed in the
present case against the petitioner. The Petitioner cannot be held
guilty of offence alleged against him.
8. Mr. Nayak, learned counsel for the State, on the other hand,
opposes the prayer for bail of the petitioner on the ground that the
contraband articles involved in the present case is more than
commercial quantity and he further submits that the co-accused have
named the present petitioner and that the Petitioner was managed to
escape from the spot while search and seizure was conducting, as
such, he could not be apprehend at the spot. However, basing upon
the statement of the co-accused, he was arrested later on. Mr. Nayak,
further submits that a clear case is made out against the Petitioner
and the provisions as N.D.P.S. Act. He further submits that the
trafficking of contraband substances are on the rise in the Koraput
district of the State of Odisha. He also submits that the petitioner is
an outsider. Therefore, no leniency should be shown to the
Petitioner.
9. Having heard learned counsel for the parties, considering the
period of detention of the Petitioner in custody and the fact that the
investigation has been completed and charge-sheet has been filed in
the meantime and further the fact that the Petitioner has been
apprehended on the basis of the statement made by the co-accused,
this Court is inclined to release the Petitioner on bail.
10. Let the Petitioner be released on bail subject to furnishing a
bail bond of Rs.1,00,000/-(Rupees one lakh) with two solvent local
sureties for the like amount to the satisfaction of the court in seisin
over the matter. However, this order is subject to the following
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conditions:-
I. The Petitioner shall not be involved in any
offence of similar nature;
II. he shall not tamper with the prosecution evidence
or try to threaten or influence the witnesses in
any manner whatsoever;
III. he shall not make any default in attending the
court during trial on each date without fail;
IV. he shall appear before the concerned Police
Station once in a fortnight preferably on
'Sunday' in between 10.00 A.M. to 1.00 P.M. till
conclusion of trial; and
V. He shall not leave the jurisdiction of the Court in
seisin over the matter and shall furnish his
address and mobile number to the police from
time to time.
Violation of any of the terms and conditions shall entail
cancellation of bail.
11. The Bail Application is accordingly disposed of.
12. Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra )
Judge
Jagabandhu
