Orissa High Court
Jogeswar Mukhi vs State Of Odisha .... Opposite Party on 4 January, 2024
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 13768 of 2023
Jogeswar Mukhi .... Petitioner
Mr. S. Panda, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. K.K. Gaya, A.S.C
CORAM: JUSTICE V. NARASINGH
ORDER
04.01.2024
Order No.
01. 1. Heard learned counsel for the Petitioner and learned
counsel for the State.
2. The Petitioner is an accused in connection with Special
Case(NDPS) No.142 of 2023, pending before the Court of the
learned Addl. Dist & Sessions Judge-cum-Special Judge, Kantamal,
arising out of Manamunda P.S. Case No.129 of 2023, for alleged
commission of offences under Sections-20(b)(ii)(C)/29 of the NDPS
Act.
3. Learned counsel, on instruction, submits that except the
present BLAPL, no other bail application of the Petitioner relating
to the aforementioned P.S. Case is pending in any other Court.
4. Being aggrieved by the rejection of his application for bail
U/s.439 Cr.P.C. by the learned Addl. Sessions Judge-cum-Spl.
Judge, Kantamal by order dated 15.11.2023 in the aforementioned
case, the present BLAPL has been filed.
5. This is the second journey of the Petitioner to this Court.
Earlier by order dated 20.07.2023 in BLAPL No.7400 of 2023
liberty was granted to the Petitioner to renew his prayer post
submission of final form and since the final form in the case at hand
has been submitted on 10.11.2023, the present bail application has
been filed.
6. It is submitted by the learned counsel that the Petitioner is
in custody since 17.05.2023.
7. The allegation of the prosecution is that the Petitioner
along with the co-accused are found to be in possession of
contraband to the tune of 1Quintal 5Kgs (Ganja).
8. Learned counsel for the Petitioner submits with vehemence
that from three motor cycles three independent seizures of 35Kgs
200gms each has been clubbed together and the Petitioner has been
made responsible for the entire contraband.
9. In this context learned counsel for the Petitioner refers to
the statement of the complainant "one number of jarry bag were
loaded in each three motor cycles and the smell of Ganja was
coming from this bag" and referring to the same, it is submitted that
the Petitioner cannot be held liable for the entire contraband seized
and since he is the first offender and charge sheet has already been
submitted, he may be released on bail.
10. It is the further submission of the learned counsel that since
cases of this nature are lingering and the Petitioner is a young man
of 21 years, his further continuance in custody is unwarranted.
11. It is further submitted by the learned counsel that one of
the co-accused, namely, Suratha Mukhi, has since been released on
bail by this Court by order dated 02.01.2024 in BLAPL No.13654
of 2023. Hence, on the ground of parity and relying on the judgment
of the Apex Court in the case of Satender Kumar Antil vrs. Central
Bureau of Investigation & Another, reported in 2022 (10) SCC 51,
learned counsel for the Petitioner seeks release.
12. Per contra, learned counsel for the State submits that there
is no infirmity in the seizure and even if for the sake of argument,
the submission of the learned counsel for the Petitioner is accepted
at its face value, even then the contraband being admittedly more
than the commercial quantity, the bail application does not merit
consideration in view of the bar contained in Section 37(1)(b)(ii) of
NDPS Act.
13. It is further submitted by the learned counsel for the State
that question of parity cannot have mechanical application.
14. It is on record that one Hero HF Delux motor cycle bearing
No.OD-31B-5505 was seized from the Petitioner along with the
contraband of 35Kgs 200gms.
15. Taking into account the age of the Petitioner and that he is
the first offender and has his home and hearth within the jurisdiction
of the learned Court in seisin, this Court keeping in view the dictum
of the Apex Court in the case Rabi Prakash vrs. The State of
Odisha reported in 2023 SCC OnLine SC 1109 and in the light of
the dictum of the Apex Court in the case of Satender Kumar Antil
vrs. Central Bureau of Investigation & Another, reported in 2022
(10) SCC 51 relating to parity, directs the Petitioner's release on
bail on such terms to be fixed by the learned Court in seisin.
16. Before releasing, learned Court in seisin is requested to
verify criminal antecedent of the Petitioner. If it comes to the fore
that the Petitioner has any criminal antecedent, this order shall not
be given effect to.
17. Additionally, it is directed that the Petitioner shall appear
before the jurisdictional police station once every week on such date
and time to be fixed by the learned Court in seisin till conclusion of
trial. Certification of such appearance shall be submitted to the
learned Court in seisin.
18. It is further directed that in addition to the sureties so fixed,
one surety shall be immediate member of the family of the
petitioners, who shall execute a P.R. bond.
19. Accordingly, the BLAPL stands disposed of.
20. Urgent certified copy of this order be granted as per the
rules.
(V. NARASINGH)
Soumya Judge
Signed by: SOUMYA RANJAN SAMAL
Location: High Court of Orissa
Date: 05-Jan-2024 18:16:35
