Orissa High Court
Bhisma Khatua vs State Of Odisha on 20 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.7192 of 2023
Bhisma Khatua .... Petitioner
Mr. S.B. Panda, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. A.P. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 20.07.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner as well as the learned
Additional Standing Counsel. Perused the F.I.R., case diary and
other relevant documents as well as statements of the witnesses.
3. This is an application under Section 439 of the Criminal
Procedure Code.
4. The Petitioner is an accused in Special Case(NDPS) No.12 of
2022 (B) arising out of Kantamal P.S. Case No.47 of 2022 pending
in the court of learned Additional District and Sessions Judge-cum-
Special Judge, Kantamal for commission of offence punishable
under Sections 20(b)(ii)(C)/29 of the N.D.P.S. Act.
5. The prosecution case, in brief, is that on 04.04.2022, the
informant S.I. of Ghantapada Out-post had received a reliable
information regarding transportation of Ganja. Then he along with
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his staffs rushed to the spot and found total six persons were coming
from Matakupa side to Kamghat side in 3 motorcycle loaded with
Jari bags. Thereafter, the raiding party could able to apprehend two
persons. On being search found 30 Kgs each from 5 jari bags
containing ganja total 150 Kgs.
6. It is submitted by learned counsel for the petitioner that the
Petitioner is languishing in custody since 20.06.2023. He further
submits that the investigation has been concluded and charge sheet
has been filed. However, trial has not yet been commenced.
7. Further, learned counsel for the petitioner submits that the
petitioner has been falsely implicated in this case by the police.
Neither any incriminating material has been recovered from his
exclusive possession nor he was arrested at the spot. It is further
submitted that the petitioner belongs to the locality and there is no
chance of absconding and in the event, he is released on bail, he shall
cooperate for early conclusion of trial appearing on each and every
date fixed.
8. It is also submitted by learned counsel for the Petitioner that
co-accused person namely Kartika Sethi has been released on bail in
BLAPL No.3947 of 2022 vide order dated 01.12.2022. Then
Kusaleswar Nag also has been released on bail in BLAPL No.4203
of 2023 vide order dated 26.04.2023. Then Sankar Malik also
released on bail in BLAPL No.12682 of 2022 vide order dated
14.02.2023. He also contended by learned counsel for the Petitioner
that the Petitioner has been entangled to the present case on the basis
of the confessional statement of the co-accused. Further, drawing
attention of this Court through the judgment of the Hon'ble Supreme
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Court in the case of Tofan Singh vs The State of Tamil Nadu,
reported in (2013) 16 SCC 31. Learned counsel for the Petitioner
submitted that the confessional statement of the co-accused is not
admissible in the under Section 37 of the NDPS Act. Accordingly,
learned counsel Petitioner has prayed for the release of the petitioner
on bail.
9. Learned Additional Standing Counsel on the other hand
opposes the release of the Petitioner on bail on the ground that the
Petitioner was arrested on the strength of N.B.W. and he further
submits that in total six persons in three motorcycles were carrying
bags each containing 30 Kgs. of contraband articles. He also submits
that since the petitioner was arrested at the spot, bar under Section 37
of the NPDS Act to attract as such the petitioner is not entitled to
grant bail. Accordingly, learned counsel for the State urges for
rejection of the bail application of the petitioner and such types of
crime are rampant in the State and no leniency should be shown to
the petitioner or similarly situated persons. Accordingly, learned
Additional Standing Counsel prays for rejection of the bail
application of the Petitioner.
10. Having heard learned counsel for the parties and considering
the peculiar facts and circumstances of the case, further taking into
consideration, the petitioner does not have any criminal antecedents
and the trial is not likely to be concluded in near future, the
Petitioner is directed to be released on bail on furnishing a bail bond
of Rs.50,000/- (rupees fifty thousand) with two local solvent sureties
each for the like amount to the satisfaction of the learned court in
seisin over the matter and any other conditions as may be deemed
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just and proper by the learned court in seisin over the matter.
11. It is further directed that the bail granted to the Petitioner is
subject to the condition that learned court below shall verify whether
the Petitioner has any criminal antecedents of similar nature. In the
event it is found that the Petitioner has any criminal antecedents of
similar nature, this bail order shall automatically stand revoked.
12. Accordingly, the Bail Application is accordingly disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra )
Judge
RKS
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 21-Jul-2023 11:54:16
