Suba Duria vs State Of Odisha
2023 Latest Caselaw 8018 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    CRLMC No.247 of 2023

  Suba Duria                             ....             Petitioner
                                         Mr. S.K. Dash, Advocate


                              -Versus-


  State of Odisha                     ....         Opposite Party
                Mr. S.S. Mohapatra, Additional Standing Counsel
            CORAM:
            JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:24.07.2023

1.

The petitioner by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C, has filed the instant petition challenging the impugned order dated 4th December, 2021 passed in G.R. Case No. 90 of 2021 by the learned Special Judge, Gajapati, at Parlakhemundi and the entire proceeding in respect thereof corresponding to Adava P.S. Case No. 89 of 2021 on the grounds stated therein.

2. In fact, an F.I.R was lodged on 4th August, 2021, which was at the instance of the informant, namely, S.I. of Police Adava P.S. with regard to detection of contraband Ganja while being transported in a vehicle bearing registration No. OD 10 N 1016 and as a result, Adava P.S. Case No. 89 was registered under Sections 20(b)(ii)(B), 25 and 29 of the NDPS Act. The details of the circumstances leading to the interception of the alleged vehicle and recovery of 17 Kgs. 200 Gms. of Ganja kept in a plastic polythene bag have been described in the F.I.R as at Annexure-1. After the completion of investigation, the local police submitted the chargesheet under Annexure-2 showing the petitioner as an absconder along with two others. On receipt of

Suba Duria Vrs. State of Odisha

the chargesheet, learned Special Court took cognizance of the offences by order dated 4th December 2021 under annexure-3 and simultaneously issued an NBWA against the petitioner. The order of taking cognizance of the offences vide Annexure-3 and the entire criminal proceeding with respect to G.R. Case No. 90 of 2021 arising out of Adava P.S. Case No.89 of 2021 vis-à-vis the petitioner has been challenged by claiming his non-involvement in the alleged transportation of the contraband Ganja on the ground that there is no iota of evidence against him showing any kind of complicity.

3. Heard Mr. Dash, learned counsel for the petitioner and Mr. Mohapatra, learned counsel for the State.

4. Mr. Dash, learned counsel for the petitioner submits that Annexure-1 reveals the participation of others for transporting contraband Ganja in the alleged vehicle, inasmuch as, the name of the petitioner does not find a mention therein nor the co-accused revealed any such connivance but merely for the reason that he is the owner of the vehicle in question, the local police has falsely implicated him in connection with the alleged incident and at last, submitted the chargesheet (Annexure-2) and therefore, not only the impugned order under Annexure-3 is liable to be quashed but also the entire proceeding corresponding to Adava P.S. Case No. 89 of 2021 as against him. So to say, Mr. Dash would submit that there is no prima facie case made out against the petitioner, who has been entangled as because he is the owner of the alleged vehicle. Furthermore, Mr. Dash submits without investigation having been properly conducted, the chargesheet under Annexure-2 was submitted showing the petitioner as an absconder leading to the passing of order under Annexure-3 and issuance of NBWA against him thereafter.

Suba Duria Vrs. State of Odisha

5. Mr. Mohapatra, learned counsel for the State, on the contrary, contends that admittedly there has been recovery of contraband Ganja in the vehicle, a four-wheeler, which was intercepted by the informant, who later lodged F.I.R. It is further submitted that in course of investigation, the involvement of the petitioner has been revealed which resulted in submission of the chargesheet and therefore, the learned Special court has not committed any error or illegality in taking cognizance of the offence under Annexure-3 and issuing NBWA against him, as he was an absconder. Mr. Mohapatra, while claiming so, shared the copies of the F.I.R., Case Diary and other documents lying at his disposal for perusal of the Court.

6. As it is revealed from the record, a vehicle was intercepted by the informant and police party on duty at the relevant point of time on 4th August, 2021. It is also not in denial that after the vehicle was detained and searched, 17 Kgs. 200 Gms. of contraband Ganja was recovered, while it was being kept in a polythene packets and it was accomplished in the presence of the other accused. The only question is, whether, the petitioner is also responsible for the illicit transportation of Ganja? From Annexure- 1, it is made to appear that the alleged vehicle was stopped near the spot by the informant and other police officials on duty and at that time, one of the occupants of it got down and ran towards the road jungle, whereas, the accused, who was driving the same, was detailed and thereafter, the recovery and seizure of Ganja was made. In fact, it has been described in Annexure-1 that the police party chased the vehicle and managed to stop it and thereafter, searched its dickey from where a plastic bag was recovered with the contraband Ganja kept inside and on being interrogated, the accused disclosed his identity and of the person, who managed to flee.

Suba Duria Vrs. State of Odisha

7. Perused the Case Diary and other documents received from Mr. Mohapatra, learned ASC for the State.

8. From Annexure-2, it is made to appear that the chargesheet has been submitted against the petitioner and another accused, who was found in the driver seat, when the vehicle was intercepted. As per the said accused, the person managed to run away from the spot was not the petitioner and disclosed his identity as one Sunil @ Nirola of village Jalaputu P.S. Machkund in the district of Koraput. It is revealed from the record that the above named has not been chargesheeted by the local police. In so far as the petitioner is concerned, he happens to be the owner of the vehicle. It is alleged that there is no material evidence showing the involvement of the petitioner in the alleged transportation of Ganja. So therefore, the contention is that the petitioner merely being the owner of the alleged vehicle could not have been implicated in connection with the alleged incident. So therefore, the criminal proceeding as against him is liable to be quashed and as a corollary under Annexure-3.

9. From the Case Diary, it is of course made to reveal that an attempt was made to trace out the accused, who managed to flee from the spot but it was not successful. As stated before, the said accused was not even chargesheeted evident from Annexure-2. The accused, who was in the vehicle at the time of his interception, was only arrested and forwarded to the Court and thereafter, finally chargesheeted. It is further revealed from the Case Diary that the ownership of the seized vehicle was enquired into by the local police, during which, it was ascertained that the same stands in the name of the petitioner. What is the incriminating material on record to prima facie prove and establish the involvement of the petitioner? Whether any evidence was ever collected showing the petitioner's complicity in

Suba Duria Vrs. State of Odisha

the transportation of contraband Ganja? As per the Case Diary, the petitioner was absconding after the alleged incident in order to avoid police arrest and since there has a less chance of his apprehension and as the investigation was complete, the chargesheet was submitted against him and the other accused, in whose presence the contraband Ganja was recovered. Neither the petitioner nor the other two accused persons were having any criminal antecedent, which was verified by the local P.S. which is again revealed from the Case Diary. The quantity of contraband Ganja, which was being transported in the alleged vehicle, is not commercial in nature. If the petitioner was not travelling in the alleged vehicle and the person who fled the spot was duly identified by the co-accused, the statements of some of the witnesses recorded under Section 161 Cr.P.C., copies of which are made available to the Court along with the Case Diary do not suggest that the co-accused, who was interrogated did disclose the name of the petitioner. Rather, the alleged disclosure has been to the effect that the co-accused was carrying the contraband Ganja to sell it in Khurda area.

10. No doubt, the sample of Ganja seized was sent to the laboratory for scientific test which was received with a report dated 22nd October, 2021 stating that the same contained flowering and fruiting tops of cannabis commonly known as Ganja. So therefore, there is no doubt that the contraband Ganja was recovered and seized. However, to implicate the petitioner, apart from such seizure and arrest of co-accused, in the considered view of the Court, incriminating evidence has to be necessarily on record. In order to show the involvement and implication against the owner of a vehicle seized in connection with transportation of contraband substance, something more than his ownership is required to be established. In so far as the present case is concerned, it is not in dispute that the petitioner was not detected

Suba Duria Vrs. State of Odisha

at the spot. Though there has been enquiry regarding the ownership of the vehicle seized for having been used in the transportation of contraband Ganja, what was necessary to implicate the petitioner was to establish his connection and involvement with other accused persons. The R.C. Book of the alleged vehicle was apparently found during the search. But, as earlier mentioned, just proving ownership by itself would not be sufficient to implicate the petitioner. The Case Diary is available but as it is made to suggest that from the accused nabbed at the spot, the R.C. Book with the registered owner being the petitioner was recovered with some cash. Some connection is to be established to show the involvement of the petitioner not his ownership alone. What prevailed upon the local police to implicate the petitioner is not clearly discernable from the available record. Though the statements of witnesses recorded under Section 161 Cr.P.C. are perused with other documents but the incriminating material based on which the petitioner's involvement is alleged is absent. The prosecution is required to satisfy as to why the petitioner being the owner of the vehicle is also arrayed as an accused. The Court is of the considered view that before the petitioner is treated as an accused, the prosecution owes an explanation to offer in order to satisfy his involvement in the alleged transportation. It is stated at the cost of repetition that mere ownership is not sufficient to implicate and for that, reasonable connection or proximity is necessary. The Court is also of the view that simply entertaining suspicion, an owner of a vehicle cannot be entangled. It has to be a suspicion based on real nexus proved through evidence. Thus, the conclusion of the Court is that the learned court below was really required to examine the entire evidence before taking cognizance of the offences against the petitioner. What really weighed the mind of the learned court below to proceed against the petitioner is not revealed from the

Suba Duria Vrs. State of Odisha

record and therefore, in the humble view of this Court, it needs a fresh examination by looking at the entire evidence submitted along with the chargesheet which is absolutely necessary in the interest of justice as someone's personal life and liberty is involved which cannot be taken away without justifiable cause.

11. Hence it is ordered.

12. In the result, the CRLMC stands allowed. As a consequence,

the impugned order dated 4th December, 2021 passed in G.R. Case No. 90 of 2021 by the learned Special Judge, Gajapati, at Parlakhemundi is hereby set aside vis-à-vis the petitioner. Consequently, the learned court below is directed to consider and examine the whole of the evidence considering the chargesheet and thereafter, to pass order according to law.

(R.K. Pattanaik) Judge

Balaram

Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Senior Stenographer Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jul-2023 20:57:48