Orissa High Court

Sanjay Dhali vs State Of Odisha ...... Opp. Party on 12 February, 2025

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  BLAPL No. 6212 of 2024
               An application under Section 439 of the Code of Criminal
               Procedure.
                                             --------------
               Sanjay Dhali                       ......                      Petitioner

                                               -versus-
               State of Odisha                   ......                         Opp. Party
               ---------------------------------------------------------------------------
               For Petitioner                : Mr. Nihar Ranjan Sahoo, Advocate


               For Opp. Party                : Mr. Gyanalok Mohanty, SC
               ----------------------------------------------------------------------------

               CORAM:
                     HON'BLE MISS JUSTICE SAVITRI RATHO

                                        JUDGMENT

12.02.2025

Savitri Ratho, J This is the second application of the petitioner under

Section 439 of Cr.P.C. in connection with Malkangiri P.S. case No.

169 of 2023 corresponding to Special G.R. Case No. 91(A) of 2023

pending in the Court of the learned Sessions Judge -cum- Special

Judge, Malkangir. Preliminary chargesheet had initially been

submitted against co-accused Jeevanand Haldar (petitioner in

BLAPL No. 13036 of 2023) on 21.09.2023 for commission of

offences under Sections 20(b)(ii)(C)/25/29 of the NDPS Act,

keeping the investigation open. After the petitioner was arrested,

final chargesheet has been submitted on 16.05.2024 against

Jeevanand Haldar under Sections 20(b)(ii)(C) /25/29 of the NDPS

Act, the petitioner Sanjay Dhali and co-accused Sukesh Baroi

under Sections 20(b)(ii)(C)/29 of the NDPS Act indicating Sukesh

Baroi to be an absconder.

2. Before he was arrested on 03.01.2024, the petitioner had

filed two applications under Section 438 of the Crl.P.C before this

Court. ABLPL No. 5982 of 2023 was dismissed on 30.08.2023 and

ABLPL No. 11221 of 2023 has been dismissed on 08.12.2023.

3. BLAPL No. 6212 of 2024 filed earlier by the petitioner

under Section - 439 of the Cr.P.C had been dismissed as

withdrawn on 05.02.2024.

4. Thereafter, the petitioner has moved the learned Court

below for bail, but his prayer has been rejected by the learned

Special Judge, Malkangiri (In-charge) on 29.05.2024.

PROSECUTION ALLEGATIONS

5. The prosecution allegation in brief is that on 26.03.2023

at about 3.30 p.m., the S.I. of Malkangiri Police Station had

proceeded on patrolling duty/MV checking duty in Malkangiri

town near Goudaguda Chowk Malkangiri. At about 4.00 p.m. he

received credible information that one person who transporting

ganja in a white colour Swift Dzire car from Korkunda side. He

stopped the vehicle at Goudaguda Chowk. On examination, the

driver disclosed his identity to be Jeevanand Haldar of Jagdalpur,

Bastar (Chattisgarh). Two plastic tinsel jerry bags were recovered

from the dicky of the car and two tinsel jerry bags were found in

the middle seat of the car from which acute smell of ganja was

emanating. On account of his professional experience, the I.O.

suspected the same to be contraband ganja. On further

examination, the accused confessed that he was transporting ganja

to Raipur for sale and the same had been delivered to him by

Sanjay Dhali (the petitioner) having Mobile no. 8480346589 and

6371020043 of MV-84 Padmagiri at present Malkangiri; and

Sukesh Baroi of MV-83, Padmagiri having Mobile No.

6267311361. After arranging two independent witnesses - Santosh

Suna and Ramesh Suna, and after complying with the mandatory

provisions of the NDPS Act and in the presence of an Executive

Magistrate, the vehicle and accused were searched and apart from

other materials, cash of Rs. 3000/-, one ACE keyboard mobile

having two numbers 9406192476 and 8895381072 and another

mobile having two SIMs bearing numbers 9131284300 and

9755484300, one Adhar Card, duplicate driving licence, voter card

and one duplicate PAN card in the name of Jeevanand Haldar were

seized. On weighing, each of the four bags were found to be

contain 27 kgs. of ganja. (Total 108 kgs.) Since the accused

Jeevanand Haldar could not produce any authorization for

possession of transportation of the ganja, the ganja was seized and

he was arrested. The other accused persons could not be arrested

for which the I.O. submitted preliminary chargesheet on

21.09.2023 against Jeevanand Haldar keeping investigation open.

During investigation, it was found that Malkangiri P.S. Case No.

129 of 2005 under Sections 20(b)(ii)(C) of the NDPS Act had been

registered against the petitioner Sanjay Dhali. During investigation,

it was found that the petitioner-Sanjay Dhali (6371020043) and

accused Jeevanand Haldar (9131284300) were in regular contact

with each other over their mobile phones. The petitioner was

arrested from his house on 02.01.2024 and thereafter the charge

sheet has been submitted on 16.05.2024 against co accused

Jeevanand Haldar, petitioner-Sanjay Dhali and co accused Sukesh

Baroi indicating Sukesh Baroi to be an absconder.

SUBMISSIONS

6. I have heard Mr. Nihar Ranjan Sahoo, learned counsel

for the petitioner and Mr. Gyanalok Mohanty, learned Standing

Counsel.

7. Mr. Nihar Ranjan Sahoo, learned counsel for the

petitioner submitted that the petitioner is in custody since

03.01.2024 and till date the trial has not started. He further submits

that the only material against the petitioner is the confession of the

co-accused Jeevanand Haldar before the Police and his own

confession. Relying on the case of Tofan Singh vrs. The State of

Tamil Nadu; (2021) 4 SCC 1 : AIR 2020 SC 5592 he submitted

that the statement of co-accused cannot be used against the

petitioner either for convicting him or for detaining him in

custody. He further submitted that though the petitioner was an

accused in Malkangiri P.S. Case No. 129 of 2005, he has been

acquitted by judgment dated 24.01.2008 passed by the Additional

Sessions Judge -cum- Special Judge, Malkangiri. He also

submitted that the petitioner had been released on interim bail to

participate in the obsequies of his father pursuant to order dated

23.08.2024 and he has not misused the liberty granted to him and

surrendered in the court below on the date fixed.

8. Mr. Gyanalok Mohanty, learned Standing Counsel

opposed the prayer for bail stating apart from the confession of the

co-accused Jeevanand Haldar and the petitioner, the analysis of the

CDR/STR of the call records revealed that the petitioner was in

constant touch with the main accused Jeevanand Haldar on his

mobile 6371020043 and 9131284300 before the date of occurrence

and on the date of occurrence. That apart, the petitioner was

involved in another case under the NDPS Act involving

commercial quantity (Malkangiri P.S. Case No. 129 of 2005). He

has been acquitted him on the basis of reasonable doubt and it is

not a case of clean acquittal. In view of the requirements of

Section 37 of the NDPS Act and the involvement of the petitioner

in the earlier case, it cannot be said that he will not commit any

offence if he is released on bail, so Section 37 of the NDPS Act

will be a bar for releasing the petitioner on bail.

STATUTORY PROVISIONS

9. Section 37 of the NDPS Act is extracted below:-

"37. Offences to be cognizable and non-bailable.--

(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--

(a)every offence punishable under this Act shall be cognizable;

(b)no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2)The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

10. Section 37 of the NDPS Act states that bail should not be

granted to an accused unless the accused is able to satisfy twin

conditions i.e. reasonable ground for believing that the accused is

not guilty of such an offence and that the accused would not

commit an offence or is not likely to commit an offence, if granted

bail.

JUDICIAL PRONOUNCEMENTS

11. In the case of Tofan Singh (supra), the Supreme Court

has answered the reference by interalia holding as follows:

"(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers"

within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

12. In the case of Union Of India vs. Ajay Kumar Singh @

Pappu : 2023 SCC Online 346, the respondent had been arrested

on the basis of statements of the co- accused recorded under

Section - 67 of the NDPS Act. They had stated that he had supplied

the ganja to them. Other cases under the NDPS Act were pending

against him. The co accused persons had been released on bail. The

respondent-accused has been directed to be released on bail by the

High Court on the ground of delay in trial, the decision dated

11.07.2022 of the Supreme Court in the case of Satender Kumar

Antil vs. Central Bureau of Investigation and Another in

SLP(Crl.)No.5191 of 2021 and as the main accused had been

granted bail. While cancelling the bail granted to the respondent,

the Supreme Court held as follows: -

"16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.

17. The quantity of "ganja" recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail rather his antecedents are indicative that he is a regular offender. In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail."

CONCLUSION

13. In view of decision in the case of Tofan Singh (supra),

the confession of the petitioner or the co-accused before the police

cannot be considered to be an incriminating material against the

petitioner. The petitioner has been acquitted in the case in which

he faced trial for commission of offence under Section - 20 (b) (ii)

doubt and it is not a case of false implication or clean acquittal, I

am not satisfied that he will not commit similar offence if he is

released on bail. As the twin requirements of Section - 37 of the

NDPS Act are not fulfilled, I am not inclined to grant regular bail

to the petitioner. His prayer for bail is rejected.

14. In report dated 13.08.2024 and report dated 20.01.2025 of the

learned Special Judge, Malkanagiri, it has been stated that in

Special G.R. Case No. 91 of 2023 (A), the case record is posted to

11.09.2024 awaiting production of Sukesh and in Special G.R.

Case No.91 of 2023, out of twenty chargesheet witnesses, nine

witness were examined and ten witnesses remain to be examined.

15. But in view of the fact that the petitioner is in custody for

over an year and trial has not started on account of the failure of the

police to arrest the co- accused and the decision of the Delhi High

Court in the case of Athar Pervez vs State: 2016 SCC OnLine Del 6662

and the Supreme Court in the case of Arvind Kejriwal v. Directorate of

Enforcement, (2024) 9 SCC 577 on grant of interim bail , I am inclined

to grant interim bail to the petitioner for a period of three months.

16. The petitioner-Sanjay Dhali shall be released on interim bail

for a period of three months by the Court below in seisin over the

matter in connection with the aforesaid case, on such terms and

conditions as deemed fit and proper, including the following

conditions:-

i) He shall furnish cash surety of Rs 20,000/-.

ii) He shall not leave Malkangiri District, without permission of the

learned trial Court.

iii) He will furnish his local address and permanent address to the

Court, which will be verified through the Police, before the

petitioner is released on bail.

iv) He shall furnish his active mobile number to the Court, which

shall be verified, before he is released on bail. He shall intimate any

change in his mobile number to his counsel immediately, so that it

can be intimated to the Court.