Orissa High Court
Dasa Khilla vs State Of Odisha .... Opposite Party on 6 November, 2024
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.5615 of 2024
Dasa Khilla .... Petitioner
Ms. M. Mishra, Advocate
Mr. M. Padhy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. C.R. Swain, AGA
BLAPL No.517 of 2024
Sona Khilla .... Petitioner
Mr. A.K. Jena, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. C.R. Swain, AGA
CORAM: JUSTICE V. NARASINGH
ORDER
06.11.2024
Order No.
03. 1. Since both the matters arise out of Chitrakonda
P.S. Case No.59 of 2022, they are heard together and
disposed of by this common order on the consent of the
parties.
2. Heard learned counsel for the Petitioners and
learned counsel for the State.
3. The Petitioners are accused in connection with
Special G.R Case No.79 of 2022 pending on the file of
learned Sessions Judge-cum-Special Judge, Malkangiri
arising out of Chitrakonda P.S. Case No.59 of 2022
for commission of offence alleged under Section
20(b)(ii)(C) of the N.D.P.S. Act.
4. Learned counsel, on instruction, submits that
except the present BLAPL, no other bail application of
the Petitioners relating to the aforementioned P.S. case
is pending in any other Court.
5. Being aggrieved by the rejection of their
application for bail U/s.439 Cr.P.C by the learned
Special Judge, Malkangiri by orders dated 27.02.2023
and 11.01.2024 respectively, the present BLAPL has
been filed.
6. It is submitted by the learned counsel that the
Petitioners are in custody since 11.5.2022 on the
accusation that they along with co-accused are involved
in transportation of contraband (ganja) to the tune of
1715 Kg. 800 grams.
7. It is further submitted on instruction that the
Petitioners are the first offenders and from the nature
of allegation, conscious and exclusive possession
cannot be attributed to them. The Petitioners also seek
release, inter alia, on the ground of procrastination of
trial inasmuch as it is submitted that 12 witnesses have
been examined out of 33 cited.
8. Learned counsel for the Petitioners also relies on
the order dated 20.09.2024 passed by this Court in
respect of the co-accused in BLAPL No.7681,7662 and
8716 of 2024 and seeks release inter alia on the ground
of parity.
9. Learned counsel for the State opposes the
prayer in view of the bar contained in Section
37(1)(b)(ii) of the N.D.P.S Act and the decision of the
Apex Court in the case of State by the Inspector of
Police vs. B. Ramu in SLP(Crl.) No(s).8137 of 2022
dated 12.02.2024.
10. Taking into account the non-progress of trial,
this Court called for a report in BLAPL No.7681 of 2024
from the learned Court in seisin. From the report it is
revealed that out of 26 charge sheeted witnesses, 12
witnesses have been examined and the depositions
have been submitted to this Court and 3 witnesses
have been declined by the prosecution. Therefore, 11
more witnesses are to be examined.
11. Referring to the depositions on record, learned
counsel for the State opposes the prayer for bail.
12. Learned counsel for the Petitioners draws the
attention of this Court to the deposition of the
independent witness Jayaram Khara examined as P.W.9
who has resiled. And, relying on the judgment of the
Apex Court in the case of Ankur Chaudhary vrs.
State of Madhya Pradesh in SLP (Crl.) No.4648 of
2024 dated 28.05.2024, since the trial is likely to
linger and the Petitioners are the first offenders as
already noted, seeks release.
13. Learned counsel for the State, on the other
hand, submits that one more independent witness
Prafulla Khemundu is yet to be examined. Hence, at
this stage considering the manner in which the seizure
has been effected while the Petitioners were trying to
flee in view of the bar contained in Section 37(1)(b)(ii)
of the N.D.P.S Act, the Petitioners are not entitled to be
released on bail .
14. Considering the period of custody and the
Petitioners are the first offenders as stated and keeping
in view the decisions of the Apex Court in the case of
Ravi Prakash vrs. The State of Odisha, 2023 Live
Law (SC) 533 and Mohd. Muslim @ Hussain Vs.
State (NCT of Delhi), AIR 2023 SC 1648 and
Ankur Chaudhary (supra), this Court directs the
Petitioners to be released on bail on such terms to be
fixed by the learned Court in seisin subject to
verification of criminal antecedent.
15. If it comes to fore that the Petitioners have any
criminal antecedent, this order shall not be given effect
to.
16. Additionally, it is directed that the Petitioners
shall appear before the jurisdictional police station once
every month 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 Court in seisin.
17. Accordingly, the bail applications stand disposed
of.
18. Urgent certified copy of this order be granted as
per rules.
(V. Narasingh)
Judge
Signed by: SOUMYA RANJAN SAMAL
Location: High Court of Orissa
Date: 07-Nov-2024 18:21:20
