Orissa High Court
Kamesh Benia @ Benya vs State Of Orissa on 9 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6807of 2021
Kamesh Benia @ Benya .... Petitioner
Mr. D.R. Bhokta, Advocate
-versus-
State of Orissa .... Opposite Party
Mr. K.K. Nayak, A.S.C. for State
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
09.02.2022
Order No.
03. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Heard Sri D.R. Bhokta, 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 T.R. Case No.80 of 2020 pending in the file of the Special
Additional District and Sessions Judge,-cum-Special Judge,
Koraput, in connection with Sunabeda P.S. Case No.181 of 2020,
based on an FIR dtd.25.11.2020, which was lodged by the Sub-
Inspector of Police, Sri Jagannath Prasad Sahoo for alleged
commission of offences u/s 20(b) (ii)(c)/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 regarding storage and transport of huge quantity of
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Ganja. He along with other officials went to the spot and identified
the accused Govinda Khora, who was standing near the materials
keeping a motor cycle with him. He was arrested on the spot. It is
alleged that after observing all formalities of NDPS Act, they seized
a total quantity of 211 kgs of Ganja from the accused Govinda
Khorda. Accordingly, all the contraband substances were seized
from the spot and a case as stated above was registered.
5. Learned counsel for the petitioner submits that the present
petitioner is an innocent person and he was no way connected with
the alleged crime and nothing has been seized on his conscious
possession. Only on the basis of confessional statement, he was
arrested and forwarded to jail and since then he is languishing in jail
custody 06.07.2021. 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. 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 has confessed in the investigation
that he procured the contraband materials from Kamesh Benia and
Vicky Khan. On the spot of the occurrence, he was transporting a
huge quantity of contraband Ganja (211 Kgs.). 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.
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7. 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
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).
8. 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.
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ii. He shall cooperate with the local police and shall appear
before the trial court on each date of trial without fail.
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.
9. The bail application is hereby allowed subject to the terms
and conditions mentioned here in above.
10. Issue urgent certified copy on proper application.
.
(A.K. Mohapatra)
Judge
U.K.Sahoo
