Orissa High Court
Rakesh Kumar Naulakha vs State Of Odisha on 17 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.5092 of 2023
Rakesh Kumar Naulakha .... Petitioner
Mr. S.C. Mohapatra, Sr. Advocate
-versus-
State of Odisha .... Opposite Party
Mr. A. Pradhan, ASC
CORAM: JUSTICE V. NARASINGH
ORDER
17.07.2023
Order No.
04. 1. Heard learned senior counsel for the petitioner and learned
counsel for the State.
2. The petitioner is an accused in Special Case No.280 of 2022
pending in the Court of the learned Sessions Judge-Cum-Special
Judge, Balasore, arising out of Sahadevkhunta P.S Case No. 352 of
2022 for commission of the alleged offence under Sections 120-B
IPC/Section 21(C) /29 of N.D.P.S. Act.
3. Being aggrieved by the rejection of his application for bail
U/s. 439 Cr.P.C by the learned Special Judge, Balasore by order dated
01.05.2023 in the aforementioned case, the present BLAPL has been
filed.
4. It is submitted by the learned senior counsel that accusation
against the present Petitioner is that he along with other co-accused
were found to be in possession of contraband (brown sugar) to the
tune of 10 kg.
5. It is submitted by the learned senior counsel Mr. Mohapatra
that the basis of implication of the present petitioner was on account
of the statement made by the co-accused Ayub From whose
possession contraband to the tune of 8 kg 246 grams of brown sugar
was seized and the balance of brown sugar was seized from other
accused.
6. it is further submitted by the learned counsel for the
Petitioner that the said co-accused Ayub from whose possession the
contraband was seized has since been released on bail by the learned
Court in seisin in tune with the order passed by this Court dated.
19.05.2023 in CRLMC No. 3703 of 2022. Hence, further continuance
of the Petitioner in custody is unwarranted, keeping in view the fact
that he was not present at the spot. And, he does not have any
antecedents and the affidavit filed to the said effect is also taken on
record.
7. Learned counsel for the State Mr. Pradhan, on the other
hand, submits that from the mobile phone of the co-accused Ayub
seized during investigation the complicity of the Petitioner is well
established and it leads to the irresistible conclusion that the Petitioner
was actively involved and facilitated the trade of the contraband
through <Hawala= transaction.
He also relies on the bar under Section 37 of the NDPS Act
to resist the prayer for bail. Though not disputing that primarily the
accusation is on account of the co-accused statement.
8. At this juncture it is apt to take note of the law laid down by
the Apex Court the case of Tofan Singh vrs. State of Tamil Nadu,
reported in (2020) 80 OCR (SC) 641 and the State of Haryana vrs.
Samarth Kumar reported in 2022 Live Law (SC) 622, since the
basis of accusation is on account of co-accused statement.
Referring, to the same the learned senior counsel urges that further
detention of the Petitioner is punitive and more so since most of the
co-accused have since been released on bail. Even otherwise
keeping in view the nature of accusation qua the Petitioner, he
ought to be released on bail.
9. In the context of release of co-accused, it is apposite to
refer to the Judgment of the Apex Court in the case of Satendra
Kumar Antil vrs. Central Bureau of Investigation & another,
reported in 2022(10) SCC 51 relating to parity.
In Paragraph-71 of the said judgment while dealing with
the aspect of the parity, the Apex Court held as under.
<Uniformity and certainty in the decisions of the court are the
foundations of judicial dispensation. Persons accused with the 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.=
10. Keeping in view the manner of implication, release of the
most of the co-accused, who are apprehended at the spot, in the light
of the pronouncement of the Apex Court noted above, this Court
directs the Petitioner to be released on bail on such terms to be fixed
by the learned court in seisin over the matter.
11. Before releasing the petitioner on bail, learned Court in seisin
shall verify criminal antecedent of the petitioner. If it comes to fore
that the petitioner has any criminal antecedent, this order shall stand
recalled.
12. To allay the legitimate apprehension of the learned Public
Prosecutor regarding ensuring the presence of the Petitioner and being
a flight risk, it is further directed that the Petitioner shall not leave the
jurisdiction of the Court in seisin without its express permission and
without intimation to the I.O.
13. Accordingly, the BLAPL stands disposed of.
14. Urgent certified copy of this order be granted as per rules.
(V. NARASINGH)
Soumya Judge
Signature Not Verified
Digitally Signed
Signed by: SOUMYA RANJAN SAMAL
Reason: Authentication
Location: High Court of Orissa
Date: 17-Jul-2023 19:53:37
