Chhagan Bapu Shinde @ vs State Of Odisha
2023 Latest Caselaw 9846 Ori

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               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   BLAPL No.6864 of 2023

           Chhagan Bapu Shinde @              ....               Petitioner
           Chhagan Bapu Shinde

                                        -versus-

           State of Odisha                    ....           Opposite Party


                     For Petitioner : Mr. S. Manohar, Advocate
                      For Opposite Party : Mr. K.K. Gaya, ASC

               CORAM: JUSTICE V. NARASINGH
                        Date of hearing and judgment :23.08.2023


V. Narasingh, J.

1. Heard learned counsel for the Petitioner Mr. S. Manohar through virtual mode and Mr. Gaya, learned Additional Standing Counsel for the State.

2. The Petitioner is an accused in connection with Special G.R Case No.143 of 2022 pending on the file of learned Additional Sessions Judge-cum-Special Judge, Malkangiri, arising out of Chitrakonda P.S. Case No.118 of 2022 for commission of the alleged offence under Sections 20(b)(ii)(C) of the NDPS Act. The allegation is of possession of contraband (ganja) to the tune of 104 kg 500 grams.

3. Being aggrieved by the rejection of his application for bail U/s. 439 Cr.P.C by the learned Sessions Judge-cum-Special

BLAPL No.6864 of 2023 Judge, Malkangiri by order dated 14.03.2023 in the aforementioned case, the present bail application has been filed.

4. It is submitted by the learned counsel that the petitioner is in custody since 15.09.2022 and charge sheet has already been filed on 09.03.2023.

5. Learned counsel for the petitioner brings to the notice of this Court that two of the co-accused have since been released on bail by this Court by order dated 25.04.2023 in BLAPL No.4001 of 2023 (Dhanraj Papulu) and by order of this day i.e. 23.08.2023 in BLAPL No.3894 of 2023 (Sibamani Sankam).

6. Hence, relying on the judgment of the Apex Court in the case of Satender Kumar Antil vrs. Central Bureau of Investigation & another, reported in 2022 (10) SCC 51, inter alia on the ground of parity, the petitioner seeks release.

7. Learned counsel for the petitioner, Mr. Manohar has further alleged non-compliance of Section 50 and 42 of the NDPS Act.

Relating to the alleged non-compliance of Section 50 of the NDPS Act and his right to be enlarged on bail, the petitioner relies on the following judgments;

(a) Vijay Singh Chandubha Jadeja vs. State of Gujrat [2010 SCC Online SC 1248], in which the following decisions were stated to have been relied upon;

(i) Ashok Kumar Sharma vs. State of Rajasthan [(2013) 2 SCC 67]

(ii) Narcotics Central Bureau vs. Sukh Dev Raj Sodhi [(2011) 6 SCC 392]

BLAPL No.6864 of 2023

(b) K. Mohanan vs. State of Kerala [(2000) 10 SCC 222]

(c) Beckodan Abdul Rahiman vs. State of Kerala [(2002) 4 SCC 229]

(d) State of Rajasthan vs. Permanand [(2014) 5 SCC 345]

(e) S.K. Raju vs. State of West Bengal [2018 (9) SCC 708]

(f) Sanjeev vs. State of Himanchal Pradesh [2022 LiveLaw (SC) 267]

8. So far as alleged infraction of Section 42 of the NDPS Act and its effect is concerned, the petitioner has relied upon

(a) Mohinder Kumar vs. State of Panaji Goa: (1998) 8 SCC 655,

(b) Darshan Singh vs. State of Haryana: (2016) 14 SCC 358

(c) judgment of High of Chandigarh in the case of Pankaj vs. State of Punjab (CRM.M.25498 of 2021 disposed of on 14.06.2022)

(d) judgment of the Apex Court in the case of Rajender Singh vs. State of Haryana (Criminal Appeal No.1051 of 2009 disposed of on 08.08.2023),

(e) Sarija Banu (A) Janarth ani and Ors. Vs. Respondent: State through Inspector of Police, (2004) 12 SCC 266

9. It is further submitted that "IN CASE OF NON-COMPLIANCE OF SECTION 42 AND 50 OF THE NDPS ACT BAR OF SECTION 37 OF NDPS ACT WILL MELT BOWN" and in this context judgments of the Kerala High Court in the case of

(a) Basanth Balram Vs. State of Kerala, 2019(2) RCR (Criminal) 488 and

BLAPL No.6864 of 2023

(b) judgment of Bombay High Court in the case of Raju Bhavlal Pawar & Ors. Vs. The State of Maharashtra 2021 ALL MR. (Cri) 4651 have been relied upon.

10. And, it is also his further submission that presumption under Section 114(g) of the Evidence Act has to be drawn against the prosecution.

11. Per contra, learned counsel for the State Mr. Gaya, ASC refutes the allegation as made and submits that there has been due compliance of the stipulation under Section 42 and 50 of the NDPS Act.

12. Relying on the materials on record, it is his further submission that in the case at hand admittedly since, the seizure is from a vehicle, compliance of Section 50 of the NDPS Act as such is not necessary.

13. The brief facts for the just adjudication as stated in the FIR dated 14.09.2022 is that during the blocking and motor vehicle checking which was being carried out during patrolling, the police personnel noticed one blue-black colour Hero motor cycle without number plate coming in a high speed and on being stopped and being interrogated, they gave the information that they are escorting one ganja loaded Bolero vehicle which is coming behind. "After few minutes the said bolero came in a high speed, though they were forewarned, so put the wooden logs on the road and tactically approached and able to stopped the said Bolero vehicle. Seeing the police personnel suddenly the driver of the Bolero and side sitter started running towards jungle side, but we could able to apprehend

BLAPL No.6864 of 2023 them." It is apt to state that petitioner is one of the two persons who were in the Bolero and trying to escape.

13.A. It is stated that the bolero having registration No.MH 12 SQ 5273 was searched and "one iron chamber in the middle seat of the said Bolero, being opened found four numbers of polythene packets containing suspicious material was found from which acute smell of ganja was coming."

14. It is stated that the complainant, S.I. thereafter, intimated the OIC, Chitrakonda over phone and later on follow up measures in terms of the NDPS Act were taken.

15. While detailing the consequential statutory measures, it has been categorically mentioned that in the presence of two independent witnesses, notice under Section 50 of the NDPS Act was served on the detainees including the present petitioner and when the detainee opted to be searched in presence of an Executive Magistrate, his services were requisitioned and the four jerry bags in the Bolero were opened. On opening the jerry bags ganja to the tune of 104 kg 500 grams was detected.

16. To appreciate the contention of the learned counsel for the petitioner, Section 42 of the NDPS Act is extracted as under;

"42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-

military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer

BLAPL No.6864 of 2023 superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,---

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure of freezing or forfeiture under Chapter V-

A of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to

BLAPL No.6864 of 2023 have committed any offence punishable under this Act:

[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that] if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior.] xxx xxx xxx

17. It is apt to note here that admittedly, the case at hand is one of chance detection. Therefore, strict compliance of Section 42(1) of the NDPS Act is not necessary.

18. But, at the same time total non-compliance of the Section 42 of NDPS Act cannot be countenanced. (Ref: Boota Singh & others vs. State of Haryana; 2021 (2) Crimes 164 (SC).) In this context, reference can also be made to the judgment of the Apex Court in the case of Karnail Singh vrs. State of Haryana: (2009) 8 SCC 539.

BLAPL No.6864 of 2023

19. On a bare perusal of the constitution Bench judgment in the case of Karnail Singh (Supra), it is abundantly clear that the aspect of compliance of Section 42 of the NDPS Act has to be decided in each case on its own facts. And, in the factual matrix of the case at hand, referring to the Pages 12 and 13 of the charge sheet which is on record, this Court is of the considered view that there has been compliance of Section 42 of the NDPS Act. Hence, contention of the learned counsel for the petitioner to the contrary does not merit consideration.

20. And, so far as non-compliance of Section 50 of the NDPS Act in the case at hand is concerned, admittedly the seizure being from a vehicle, Section 50 of the NDPS Act ex-facie is not attracted. For convenience of ready reference, Section 50 of NDPS Act is extracted hereunder;

"50. Conditions under which search of persons shall be conducted.-

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such persons without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for such, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

BLAPL No.6864 of 2023 [(5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drugs or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy there of to his immediate officer superior.]"

20.A. But, in the case at hand there are materials on record to indicate that the search of the petitioner and other accused was in fact conducted in the presence of the Executive Magistrate. And, he has been cited as C.W.-2 (Ashok Kumar Muduli). (Ref: Pages 12 and 13 of the charge sheet which was submitted by the learned counsel for the petitioner.)

20.B. Thus, the challenge to infraction of Section 50 of the NDPs Act also fails.

21. Even otherwise, it is apt to note, as stated by the Apex Court in the case of Vijay Singh Chandubha Jadeja vs. State of Gujurat (supra), infraction of Section 50 of the NDPS Act "is a matter of trial". In this context, paragraph- 31 of the said judgment is culled out hereunder;

"31. .............. Needless to add that the qeustion whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor

BLAPL No.6864 of 2023 feasible to lay down any absolute formula in that behalf."

22. In the case at hand, the submission to invoke "presumption" under Section 114(g) of the Evidence Act is found to be untenable.

23. It is apt to reiterate the conduct of the petitioner which was noted herein above that on being accosted the petitioner who was in the bolero vehicle from which the contraband was seized was trying to run away into the jungle along with driver but was nabbed.

24. The judgments relied on by the learned counsel for the petitioner have no application in the facts of the present case save and expect the judgment of the Apex Court in the case of Vijay Singh Chandubha Jadeja vs. State of Gujurat (supra) on which reliance has been placed by the petitioner selectively.

25. On a careful examination of materials on record, it comes to the fore that the co-accused who have been released on bail were on a motor cycle. And, the allegation against them was of escorting the Bolero from which the contraband was seized. And admittedly, no contraband was seized from their possession. Hence, it cannot be said that they were in conscious and exclusive possession of contraband. (Ref: Avtar Singh and others vs. State of Punjab: (2002) 7 SCC 419).

26. Therefore, the petitioner cannot be said to be at par with the co-accused and hence reliance on the judgment of the Apex Court in the case of Satender Kumar Antil (supra), more

BLAPL No.6864 of 2023 particularly paragraph-71 thereof which is extracted hereunder is misconceived;

"71. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

In the facts of the case, this Court is of the considered view that since ex-facie the petitioner is not similarly circumstanced with the co-accused, since released, claim of parity is thoroughly misconceived.

27. It is trite law that a judgment is not to be applied mechanically and be treated as "Euclid's Theorem". In citing catena of judgments bereft of its context the cardinal principles of interpretation of judgment have been lost sight of. (Ref: Haryana Financial Corporation V. Jagdamba Oil Mills reported in (2002) 3 SCC 496).

28. On the basis of materials on record, this Court is of the prima facie view that the contraband beyond the commercial quantity was seized from the conscious and exclusive possession of the petitioner.

29. Considering the rigors of Section 37 of the NDPS Act, and the twin guidelines which govern the consideration of bail in a case under the Special Act where negation is the rule (Ref: State of M.P. vrs. Kajad reported in (2001) 7 SCC 673) and also in view of

BLAPL No.6864 of 2023 the fact that the petitioner is a flight risk, this Court is not inclined to entertain this bail application at this stage.

30. It is emphasized that the observations made herein are only for the purpose of consideration of BLAPL. And, it ought not to be construed as expressing any opinion, with regard to petitioner's complicity, which has to be independently adjudicated in the impending trial.

31. Learned Court in seisin is requested to expedite the trial.

32. Accordingly, the BLAPL stands disposed of.

(V. NARASINGH) Judge

Orissa High Court, Cuttack Dated the 23rd of August, 2023/ Santoshi

Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Reason: Authentication Location: High Court of Orissa Date: 28-Aug-2023 21:00:05

BLAPL No.6864 of 2023