Orissa High Court
Dhiraj Kumar vs State Of Odisha on 18 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 10659 of 2023
An application under Section 439 of the Criminal Procedure
Code, 1973.
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Dhiraj Kumar ...... Petitioner
-Versus-
State of Odisha ....... Opp. Party
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. A.K. Acharya,
A. Acharya & S. Mishra,
Advocates
For Opp. Party : Mr. Sitikanta Mishra,
Addl. Standing Counsel
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
18th October, 2023
SASHIKANTA MISHRA, J.
Heard learned counsel for the petitioner and
learned counsel for the State.
2. The petitioner is in custody since 25.11.2020 in
connection with Similiguda P.S. Case No. 103 of 2020
corresponding to T.R. Case No. 77 of 2020 pending in the
court of learned Additional Sessions Judge-cum-Special
Judge, Koraput for the alleged commission of offence
under Section 20(b)(ii)(C)/29 of the NDPS Act.
3. The prosecution case is that, on 24.11.2020 at
about 11.59 A.M., the IIC of Silimilguda Police Station, in
the district of Koraput, received information from a
reliable source regarding transportation of huge quantity
of ganja i.e. the fruiting and flowering tops of cannabis
plants, in a 10 wheeler Full Body Truck loaded with
crystal salt. It was also learnt that the truck would be
passing through Rajput Chhak on Semiliguda-Nandapur
Road. The police party therefore, went to the spot and
waited for the arrival of the truck. After sometime, a 10
wheeler full body truck, bearing Registration No.CG-04-
FB-2582, was seen coming from Nandapur side. The truck
was stopped and its contents were searched. Large
number of yellow color jerry bags containing crystal salt,
were found and several bundles, covered with cello tapes
were kept in the middle portion of the truck in between
the salt packets in a concealed manner. On further
search, the bundles were found to contain ganja. On
weighment the total quantity of ganja came to 840 kgs.
There were two persons in the vehicle including the
present petitioner-Dhiraj Kumar. Thereafter, the required
formalities of search and seizure were made and the
petitioner and the other persons were arrested and since
then, they are in custody. Subsequently, charge sheet was
submitted including the name of one Dolphin Pangi as co-
accused.
4. It is submitted by Mr. A.K.Acharya, learned
counsel for the petitioner, that the co-accused-Arvind
Kumar, being a Juvenile, his case was transferred to the
Juvenile Justice Board after the case record was split up
and was granted bail. In so far as the petitioner is
concerned, despite being in custody for nearly two years,
trial has not even commenced as yet. Mr. Acharya further
submits that the trial court has been simply issuing
summons to the witnesses but none has appeared so far.
Under such circumstances, the bar under Section 37 of
the NDPS Act could not apply as held by the Hon'ble
Supreme Court recently in the case of Rabi Prakash v.
State of Odisha; SLP (Crl.) No. 4169 of 2023)
5. Per contra, Mr. Sitikanta Mishra, learned
Additional Standing Counsel submits that the contraband
seized from the exclusive and conscious possession of the
petitioner is 841 kgs and the manner in which, it was
concealed in the truck along with crystal salt clearly
shows the culpability of the petitioner.
As regards delay in conclusion of trial, Mr. Mishra
argues that it cannot always be a ground to release the
accused person on bail, particularly when the offence is
grave. He also refers to a decision of the Supreme Court in
the case of Narcotics Control Bureau v. Mohit
Aggarwal, reported in 2022 SCC Online SC 891.
6. I have heard learned counsel for the parties at
length and have also gone through the materials on record
in detail. As submitted by the State Counsel, the manner
in which huge quantity of contraband (841 kgs of ganja)
was being transported in a concealed manner by itself,
shows a strong prima facie case against the petitioner. It
is not the case of the petitioner that he was falsely
implicated in the case or that the contraband was planted
deliberately. The only ground putforth for being released
on bail appears to be long detention of the petitioner.
Mr.Acharya has referred to the judgment of the apex court
in the case of Rabi Prakash (supra), wherein reference
has been made to Section 37 to hold that the second
condition, regarding formation of opinion as to whether
there are reasonable grounds to believe that the petitioner
is not guilty, the same may not be formed at this stage
and the petitioner has already spent more than three and
half years in custody. It was under such circumstances
that the Supreme Court held that prolonged incarceration
generally militates against the most precious fundamental
right guaranteed under Article 21 of the Constitution and
in such situation, the constitutional liberty must override
the statutory embargo created under Section 37 of the
NDPS Act. Be it noted that in the instant case the
petitioner has been in custody for 23 months only.
Moreover, in the case of Rabi Prakash (supra), it was not
laid down as an inviolable proposition of law that in all
cases of long incarceration, the accused person must be
released on bail but the observations were made looking
into the peculiar facts and circumstances before the
Supreme Court. It is also trite law that the length of the
period of detention or charge sheet filed and trial having
commenced or not commenced by themselves are not
considerations that can be treated as persuasive grounds
for granting relief to the respondent under Section 37 of
the NDPS Act. In this regard, reference may be had to the
judgment of the Supreme Court in the case of Narcotics
Control Bureau v. Mohit Aggarwal, reported in 2022
SCC Online SC 891.
7. Thus, from a conspectus of the discussion made
hereinbefore, this Court finds that there exists a strong
prima facie case to show that the petitioner has
committed the alleged offence and secondly, there is no
compelling necessity to release him on bail, that too, on
the ground that trial has not commenced.
8. The BLAPL is accordingly rejected.
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Signature Not Verified Sashikanta Mishra,
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU Judge
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
B.C.14:19:59
Date: 21-Oct-2023 Tudu, Sr. Steno
