Sureshan Kanhar @ vs State Of Odisha
2023 Latest Caselaw 7498 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                               CRLMC No. 1455 of 2023

            Sureshan Kanhar @            ....                     Petitioner
            Dahe @ Kuti Mallick
                                                            Mr. T.K.Sahu,
                                                                Advocate
                                          -Versus -
            State of Odisha               ....                Opposite Party
                                               Additional Standing Counsel


                        CORAM:
                          JUSTICE SASHIKANTA MISHRA
                                         ORDER_
                                         07.07.2023


Order No.     1.    This matter is taken up through hybrid mode.
   03.        2.    Heard Mr. S. Mishra, learned counsel appearing for the
              petitioner and Mr. S.N. Das, learned Additional standing counsel
              for the state.
              3.    The petitioner, who is facing trial in C.T. Case No. 78 of 2021
              pending in the Court of District and Sessions Judge-cum- Special
              Judge, Kandhamal, Phulbani has filed this application under
              Section 482 of Cr.P.C. seeking to challenge the orders dated
              24.04.2022 and 25.07.2022 passed by the Court below whereby
              cognizance of the offence under Section 20 (b)(ii)(c) of the NDPS
              Act was taken. Challenge to the order of cognizance is basically on
              the ground that the charge-sheet was submitted without the
              chemical examination report and therefore there is no prima facie
              proof of seizure of any contraband as alleged by the prosecution.
              Mr. Mishra has relied upon a number of case-laws including the
              case of Mohd. Arbaz and others vs. State of NCT of Delhi and


                                                                     Page 1 of 3
 two other decisions of the Punjab and Haryana High Court.
4.   Reading of the order passed in Mohd. Arbaz (Supra) would
reveal that the Supreme Court is presently in sessin of the matter as
to whether the charge-sheet submitted by the police can be treated
as complete when not accompanied by the chemical examination
report. Mr. Mishra, therefore urges the Court to quash the order of
cognizance by treating the charge-sheet as incomplete. Having
regard to the fact that the Supreme Court is sessin over the matter it
would not be proper for this Court to pass any order either way at
this stage, rather it would be proper to wait for the final decision in
the said case.
5.   Mr. Mishra, further prays that the petitioner may be released
on interim bail having regard to the fact that he is in custody since
27.10.2021

and the contention raised by him to question the charge- sheet as also the order of cognizance is a reasonable ground to be raised. He therefore submits that the petitioner should at least be released on interim bail if not regular bail pending passing of the judgment by the Supreme Court.

6. Mr. S.N. Das, learned Additional Standing counsel has opposed the contentions of Mr. Mishra by submitting that till a judgment is passed by the Supreme Court, the charge-sheet submitted by police cannot be treated as incomplete or invalid particularly in view of the fact that huge quantity of contraband was physically seized from the possession of the petitioner. As regards the prayer for interim bail Mr. Das would submit that it is always open to the petitioner to make such prayer before the appropriate Court but the power under Section 482 of Cr.P.C.

cannot be invoked for the propose of bail.

7. Having heard learned counsel for the parties and on going through the judgments cited by Mr. Mishra, this Court is of the view that till the Supreme Court passes a judgment in the matter it would not be proper for this Court to pass any order with regard to the order of cognizance, particularly on the ground that the charge- sheet was unaccompanied by the chemical examination report. As regards the prayer for bail, this Court finds that in Mohammad Arbaz and batch, the Supreme Court taking note of the long period of detention of the petitioners therein, granted interim bail to some of the petitioners and regular bail to some others. While taking note of the above however, this Court exercising power under Section 482 of Cr.P.C. would be slow to pass similar orders since statutory remedy is available to the petitioner.

8. For the forgoing reasons therefore, while keeping the CRLMC pending till disposal of the case before the Supreme Court, the petitioner is granted liberty to move the Court below seeking interim bail. If such application is filed the same shall be considered by the Court below keeping in view the long period of detention of the petitioner in custody as also the orders passed by the Supreme Court.

(Sashikanta Mishra) Judge

Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Designation: Jr.Stenographer Reason: Authentication deepak Location: Ohc, Cuttack Date: 07-Jul-2023 19:38:43