Orissa High Court
Jaan @ Jibandeep Lima vs State Of Orissa on 8 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6520 of 2021
Jaan @ Jibandeep Lima .... Petitioner
Mr. Rajib Rath, Advocate
-versus-
State of Orissa .... Opposite Party
Mr. K.K. Nayak, A.S.C. for State
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
08.02.2022
Order No.
02. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Heard Sri Rajib Rath, learned counsel for the Petitioner and
Sri K.K.Nayak, learned, learned ASC for the State. Perused the case
diary, copy of the FIR, rejection order etc.
3. This is an application for bail u/s 439 Cr.P.C. in connection
with G.R. Case No.89 of 2020 pending in the file of the Special
Judge-cum-Sessions Judge, Gajapati, Parlakhemundi, corresponding
to R.Udayagiri P.S. Case No.111 of 2020, based on an FIR
dtd.10.12.2020, which was lodged by the Sub-Inspector of Police,
Basanta Kumar Guntha for alleged commission of offences u/s 20(b)
(ii)(C)/25/29 of the Narcotic Drugs & Psychotropic Substances Act,
1985 (in short 'NDPS Act').
4. The prosecution allegation as unfolded from the FIR, in a nut
shell, is that the S.I. of Police (informant) upon getting reliable
information stopped a Mini MT Van coming with three persons
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including the present Petitioner on the Cheligada-Ramagiri Road.
After a gap of 10 minutes, the informant also stopped another
vehicle i.e. Tata Truck. One Ram Ratan Yadav along with another
co accused were in the second vehicle. On search, the informant
found 52 packets of contraband Ganja in the chamber of the Tata
Truck (2nd Vehicle) and thereafter the seized contraband articles
were weighed and it was found that a total 2 quintal 64 kgs of
contraband was being illegally transported in nine jarry bags.
Accordingly, all the contraband substances were seized from the 2nd
vehicle and a case as stated above was registered.
5. Learned counsel for the petitioner submits that the present
petitioner is an innocent person. The Petitioner was travelling in the
1st vehicle as a passenger and he has been falsely arraigned in this
case as an accused. While travelling he did not get any passenger
vehicle, therefore, he was compelled to take lift in a vehicle bearing
State of Odisha registration number, i.e. OR 07N-4977 by paying the
fare to the driver of the said vehicle. After the vehicle was detained
by the police, the petitioner was arrested on false charges. The
Petitioner is languishing in jail in custody since 10.12.2020. It was
further submitted by the learned counsel for the petitioner that
nothing has been seized either from the conscious possession of the
Petitioner or the vehicle in which he was travelling. He further
submits that the petitioner has been implicated in this case on the
basis of an alleged statement of a co-accused recorded under section
67 of the NDPS Act.
6. After the arrest, the petitioner had moved a bail application
before the Special Judge-cum-Sessions Judge, Gajapati in G.R. Case
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No.89 of 2020. The Special Judge vide order dtd.22.01.2021 has
rejected the bail application of the petitioner.
7. Sri K.K.Nayak, learned ASC on the other hand submits that
the plea taken by the petitioner is completely false and vague. He
further submits that the petitioner along with others, were
transporting huge quantity of contraband ganja (2quintal 64kgs.).
Since the quantity contraband articles involved in the present case is
more than the commercial quantity, the bar under section 37 of the
NDPS Act applies to the case of the petitioner and as such the
petitioner is not entitled to be released on bail by this court. He
further expresses his apprehension that in the event the petitioner is
released on bail, he may not cooperate with the trial as the petitioner
is not a permanent resident of the State of Odisha.
8. Learned counsel for the petitioner further submits that the
main accused from whose conscious possession the contraband
ganja was seized for the 2nd vehicle have been released on bail by
this court i.e. accused Ram Ratan Yadav in BLAPL No.5829 of
2021 vide order dtd.13.09.2021 and accused Tima @ Pradeep
Kishore Dalai in BLAPL No. 1563 of 2021 vide order
dtd.20.07.2021. Referring to the said bail orders, Mr. Rath submits
that the present petitioner stands in a much better footing than those
two accused persons. The contraband articles were seized from the
conscious possession of the aforesaid two accused persons who have
been released on bail by this court.
9. With regard to the applicability of section 37 of the NDPS
Act to the facts of the petitioner's case is concerned, the learned
counsel for the petitioner further submits that there is no evidence to
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implicate the present petitioner in the crime. The petitioner has been
arraigned as an accused on the basis of the statement of the co-
accused persons made under section 67 of the NDPS Act. He further
submits that the statement made by the co-accused persons under
Section 67 of the NDPS Act is not admissible in evidence. In
support of his contention, the learned counsel for the petitioner relies
upon the judgment of the Hon'ble Apex Court in Tofan Singh Vs.
State of Tamil Nadu, reported in (2021) 4 SCC 1 and order
dtd.10.01.2022 in the matter of State By (NCB) Bengaluru Vs
Pallulabid Ahmad Arimuta & another (Special Leave to Appeal
(Crl.) No.242 of 2022).
10. Having heard the learned counsels for the parties and upon
careful scrutiny of the case record, FIR and the decisions cited by
the learned counsel for the petitioner and considering the period of
detention of the petitioner in jail custody and the fact that the there is
no antecedent in the name of the petitioner for commission of
offences of similar nature, I am inclined to release the petitioner on
bail subject to petitioner furnishing a bail bond of Rs.50,000/~
(Rupees Fifty Thousand) and a solvent local surety of the like
amount to the satisfaction of the court in seisin of the matter. Further
the release of the petitioner on bail shall be subject to following
terms and conditions and violation of which shall entail cancellation
of the bail granted to the petitioner hereby;
i. He shall not tamper with prosecution evidence and threaten
or influence the prosecution witnesses in any manner.
ii. He shall cooperate with the local police and shall appear
before the trial court on each date of trial without fail.
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iii. He shall appear in the police station once in every fortnight
till conclusion of the trial.
iv. He shall not leave the jurisdiction of the trial court without
prior permission of the learned trial court.
v. He shall provide his local address and phone number to the
local police and shall immediately intimate any change in
address and phone number.
vi. He shall not indulge in any offence of similar nature while
on bail.
11. The bail application is hereby allowed subject to the terms
and conditions mentioned here in above.
12. Issue urgent certified copy on proper application.
.
(A.K. Mohapatra)
Judge
U.K.Sahoo
