Orissa High Court
Israel Majhi vs State Of Odisha on 28 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.8649 of 2021
Israel Majhi .... Petitioner
Dr. Simanchalla Ranjit, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. M.K. Mohanty, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 28.03.2022
04. 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 Padampur P.S. Case No.11 of 2019
corresponding to C.T. Case No.15 of 2019, pending in the court of
learned Additional Sessions Judge-cum-Special Judge, Gunupur 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
Additional Sessions Judge-cum-Special Judge, Gunupur, which was
rejected by order dated 21.08.2021.
5. The prosecution story in brief as revealed from the F.I.R. in
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the instant case is that on 09.02.2019 at 2.40 P.M. the police
personnel reached the village spot of the alleged commission of
offence, named, Bearma and found one white colour Max Pick Up
vehicle bearing Registration No.OR-05-AJ-3182 and seized inter alia
contraband ganja of 470 Kgs. 875 grams without plastic gunny bags
and managed to nab one accused who has been in the judicial
custody.
The said F.I.R. reveals that from the statement of one of the
co-accused the present petitioner has been arrested with an allegation
that he had loaded the contraband ganja in the aforesaid vehicle for
its transportation and since 19.08.2021 he has been languishing in
jail custody.
6. 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 against accused persons including the present
Petitioner and that co-accused Babula has already been released on
bail by this Court by order dated 23.11.2020. Learned counsel for the
Petitioner further submits that on the basis of the statement of the co-
accused, the petitioner has been arrested and he 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
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(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
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. The Petitioner cannot be held guilty of offence alleged
against him.
8. Mr. Mohanty, learned counsel for the State, on the other hand,
submits that the Petitioner was riding one of the motorcycles and
managed to escape from the spot, 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. Mohanty, 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 Malkangiri district of the State of Odisha.
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, co-accused has been
released on bail 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 a solvent local
surety for the like amount to the satisfaction of the court in seisin
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over the matter. However, this order is subject to the following
conditions:-
I. The Petitioner after releasing on bail shall not
indulge in any criminal offence on similar nature;
II. He shall not tamper with the prosecution evidence
and shall not influence/threaten any of the
prosecution witnesses in any manner;
III. He shall appear before the local Police Station
once in every fortnight preferably on 'Sunday' in
between 10.00 A.M. to 1.00 P.M. till conclusion
of trial; and
IV. He shall not leave the jurisdiction of the trial court
without specific permission of the court and shall
appear before the trial court on each and every
date the case is posted for trial without fail.
Violation of any of the terms and conditions shall entail
cancellation of bail.
11. The Bail Application is accordingly disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra )
Judge
Jagabandhu
