Orissa High Court
Sarat Pradhan vs State Of Odisha on 27 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.5719 of 2022
Sarat Pradhan .... Petitioner
Mr. A.R. Panda, Adv.
-versus-
State of Odisha .... Opposite Party
Mr. G.R. Mohapatra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
Order ORDER
No. 27.10.2022
03.
1. This matter is taken up through hybrid mode.
2. The Petitioner is in custody in connection with G.
Udaygiri P.S Case No. 49 of 2020 corresponding to C.T
Case No.33 of 2020 pending before the court of the
Learned Addl. District & Sessions Judge-cum-Special
Judge, Balliguda for commission of offences u/s 20 (b)
(ii)(C)/29 of N.D.P.S. Act.
3. The prosecution story, in brief, has been summarised in
the following points:
i. On 08.07.2020, as per direction of the IIC, G.
Udaygiri P.S, the informant and the S.I of Police,
Kausalya Behera formed a raiding party and
proceeded towards Kalinga Ghat Road in order to
intercept an Indigo e-CS car having Regd. No. OR
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02 BZ 8030 which was carrying contraband articles
and likely to pass Kalinga ghat road.
ii. At Kalinga Chhak, the raiding party saw a car
coming at high speed and signalled the driver
(petitioner) to stop and cordoned the vehicle to
prevent the petitioner from escaping. The raiding
party searched the vehicle and seized three bags
containing 69 kgs 800 grams of contraband
'Ganja'.
iii. Upon interrogation, the petitioner disclosed his
name and identity but was not able to produce
any license regarding transportation of the
contraband. Moreover, the petitioner also
disclosed that on the direction of Bhawanisankar
Pattnaik of village- Panasapodi, he was merely
transporting the bags containing contraband
article to be delivered at Nayagarh.
4. It is submitted by Learned Counsel for the Petitioner
that the Petitioner was the driver of alleged seized
vehicle and was merely acting upon the direction of the
owner of the vehicle. He further contended that the
petitioner is innocent and has been falsely implicated in
this case as he has no criminal antecedents.
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5. Per Contra, the Learned Counsel for the State
vehemently opposed the bail petition on the grounds
that commercial quantity of ganja was seized from
exclusive and conscious possession of the accused.
6. On going through the allegations made in the complaint
and on perusal of the charge-sheet, it appears that on the
relevant time, the petitioner was merely driving the
alleged vehicle to deliver the bags containing
contraband article at Nayagarh. The petitioner didn't
have any knowledge regarding the articles present in
the bag and was merely acting according to the
instructions of the owner of the vehicle.
7. The Supreme Court in the case of Avtar Singh v. State
of Punjab1 held that the driver of the truck vehicle and
the persons who were found sitting on gunny bags
containing poppy husk could not be attributed
"conscious possession" of such bags unless there was
proof of the concern of those persons with the goods.
The relevant observations of the Apex Court may be
reproduced as below.
"possession and ownership need not always go
together but the minimum requisite element
which has to be satisfied is custody or control
over the goods. Can it be said, on the basis of the
1
2002) 7 SCC 419 : AIR 2002 SC 3343
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evidence available on record, that the three
appellants one of whom was driving the vehicle
and other two sitting on the bags, were having
such custody or control? It is difficult to reach
such conclusion beyond reasonable doubt. It
transpires from evidence that the appellants were
not the only occupants of the vehicle, one of the
persons who was sitting in the cabin and another
person sitting at the back of the truck made
themselves scarce after seeing the police and the
prosecution could not establish their identity. It
is quite probable that one of them could be the
custodian of goods whether or not he was the
proprietor. The persons who were merely sitting
on the bags, in the absence of proof of anything
more, cannot be presumed to be in possession of
the goods. For instance, if they are labourers
engaged merely for loading and unloading
purposes and there is nothing to show that the
goods were at least in their temporary custody,
conviction under S. 15 may not be warranted.
8. In order to prove "conscious possession" of the bundles
of ganja, it is necessary for the prosecution to establish
the direct control of the petitioner over the articles.
There is no evidence to show that he was the person
who loaded the said bundles and had the knowledge
about the contents thereof. Mere fact that the bundles
were found in the car will not, by itself, show that the
petitioner was the actual possession of those bundles.
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9. In the case of State of Punjab v. Balkar Singh2, the
Apex Court held that the fact that, the accused were
sitting on the poppy husk by itself would not lead to
inference regarding their conscious possession. It is
observed:
"The respondent Balkar Singh is a resident of
village Bire Bedi in district Hisar while
respondent Munish Chand is a resident of
Farukhabad. The police did not make, any
investigation as to how these 100 bags of poppy
husk were transported to the place of incident.
They also did not adduce any evidence to show
the ownership of the poppy husk. The presence of
the respondents at the place from where the bags
of poppy husk were recovered itself was taken as
possession of these bags by the police. In fairness,
the police should have conducted further
investigation to prover that these accused were
really in possession of these articles. The failure
to give any satisfactory explanation by the
accused for being present on that place itself does
not prove that they were in possession of these
articles."
10.The fact situation in the present case also is somewhat
akin to the fact situation mentioned above. The mere
presence of the petitioner in the alleged seized car
would not clinch the issue of "conscious possession". In
the case of Madan Lal v. State of Himachal Pradesh3,
(2004) 3 SCC 582 : (AIR 2004 SC 4606)
(2003) 7 SCC 465
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the Supreme Court while dealing with the issue of
possession observed that conscious possession of a
contraband has to be determined with reference to the
factual background of each case. Section 20(b) makes
possession of contraband articles, an offence. Section 20
appears in Chapter 4 of the NDPS Act which provides
for punishment for offences for possession of such
articles. Thus, for making the possession illicit, there
must be a conscious possession. In the absence of
requisite mental element, mere custody without
awareness of the nature of such possession would not
amount to conscious possession.
11.Another decision on which reliance is placed is the case
of Sorabkhan Gandhkhan Pathan and another vs. State
of Gujarat4, wherein it has been held as follows:
"However, we notice that so far as Accused 1,
Appellant 1 herein is concerned, the contraband
in question has been seized from his possession
and, in our opinion, the prosecution has
established the case against the said accused and
the courts below have rightly convicted the said
appellant. Whereas in regard to Appellant 2, it is
the prosecution case itself that he was travelling
in the autorickshaw, along with three other
persons. The prosecution has not produced any
material whatsoever to establish that either this
appellant had the knowledge that Appellant 1
2004 (13) SCC 608
// 7 //
was carrying the contraband or was, in any
manner, conniving with the said accused in
carrying the contraband. In the absence of any
such material, to convict the second appellant
only on the ground that he was found in the
autorickshaw, in our opinion, is not justified. As
a matter of fact, the courts below have rightly
acquitted the other two accused on similar
ground and, in our opinion, the said benefit
ought to have gone to Accused 2 also. For the
reasons stated, we find the prosecution has failed
to establish its case against Appellant 2.
Therefore, this appeal, so far as he is concerned,
succeeds and the same is allowed. The said
Appellant 2, if in custody, shall be released
forthwith, if not wanted in any other case.
12.The conduct of the petitioner is also required to be seen.
There was no attempt on the part of the petitioner to flee
from the vehicle and it has also been stressed multiple
times that the petitioner has no criminal antecedents.
The petitioner was first apprehended by the raiding
party and had there been any culpable mental state, he
would have tried to escape.
13.Furthermore, for inferring the act of hatching conspiracy
(u/s 29 of the NDPS) on the part of the Petitioner and
Bhawanisankar Pattnaik (co-accused), there has to be
positive evidence about an agreement to do an unlawful
act or to do lawful act by unlawful means and such
agreement must precede with meeting of minds. So as to
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infer the case of conspiracy against the petitioner, there
is absence of material on record of him having such
meeting of the mind with Bhawanisankar Pattnaik who
handed him over the car with contraband articles loaded
in it. However, according to the chargesheet filed by the
police, the co-accused is absconding whereas the
petitioner has been languishing in custody since
09.07.2020.
14.There cannot be any doubt that persons indulging in
illegal trafficking in contraband drugs and psychotropic
substances must be dealt with, with iron hands. The
activities of such persons have a widespread deleterious
effect on the society at large. Countless members of the
society, often of tender age, fall prey to the heinous and
nefarious activities of drug peddlers. However, the
decision in each case must depend on the facts of the
case and no principle of law can be applied blindly to a
given set of facts.
15.In the facts of the present case, on an assessment of the
material on record, this court of the prima facie view
that the petitioner may not have committed the offence
that he is charged with. Further, considering the past
history of the petitioner and absence of any criminal
antecedents, there is nothing on record to suggest that
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he is likely to commit an offence under the NDPS Act
while on bail.
16.The Supreme Court has held that right to have speedy
trial is a fundamental right of a citizen. Hence, keeping a
person in custody for such a long time without any trial
is not justified and violative of his fundamental right.
The importance of speedy trial has been emphasized in
the case of Hussainara Khatoon & Ors vs Home
Secretary, State of Bihar5, wherein the Supreme Court
has iterated that:
"Speedy trial is, as held by us in our earlier
judgment dated 26th February, 1979, an
essential ingredient of 'reasonable, fair and just'
procedure guaranteed by Article 21 and it is the
constitutional obligation of the State to device
such a procedure as would ensure speedy trial to
the accused. The State cannot be permitted to
deny the constitutional right of speedy trial to
the accused on the ground that the State has no
adequate financial resources to incur the
necessary expenditure needed for improving the
administrative and judicial apparatus with a
view to ensuring speedy trial."
17.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
1979 AIR 1369
// 10 //
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.
18. Violation of any of the conditions shall entail
cancellation of the bail.
19.The BLAPL is, accordingly, disposed of.
20.Urgent certified copy of this order be granted on proper
application.
(Dr. S.K. Panigrahi)
Judge
B.Jhankar
