Orissa High Court
Jeevanand Haldar vs State Of Odisha ...... Opp. Party on 12 February, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 13036 of 2023
An application under Section 439 of the Code of Criminal Procedure,
1973
Jeevanand Haldar ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Kishore Kumar Mishra,
Advocate
For Opp. Party : Mr. Gyanalok Mohanty, SC
CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
12.02.2025
Savitri Ratho, J. This application of the petitioner under Section 439 of Cr.P.C.
has been filed by the petitioner in connection with Malkangiri P.S. Case
No. 169 of 2023 corresponding to Special G.R. Case No. 91 of 2023
pending in the Court of the learned Sessions Judge-cum-Special Judge,
Malkangiri. Preliminary chargesheet had initially been submitted
against petitioner-Jeevanand Haldar on 21.09.2023 for commission of
offences under Sections 20(b)(ii)(C)/25/29 of the NDPS Act, keeping
the investigation open. Thereafter final charge sheet has been submitted
on 16.05.2024 against the petitioner Jeevanand Haldar under Sections
20(b)(ii)(C) /25/29 of the NDPS Act, the accused-Sanjay Dhali under
Sections 20(b)(ii)(C)/29 of the NDPS Act and Sukesh Baroi for
commission of offences punishable under Sections 20(b)(ii)(C)/29 of
the NDPS Act, indicating Sukesh Baroi to be an absconder.
2. The prayer for bail of the petitioner has thereafter been rejected
on 11.04.2023 by the learned Sessions Judge-cum-Special Judge,
Malkanagiri in Special G.R. Case No. 91 of 2023.
PROSECUTION ALLEGATIONS
3. 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 was 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 (present petitioner) 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 petitioner confessed
that he was transporting ganja to Raipur for sale and the same had been
delivered to accused Sanjay Dhali 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 mobile having number 9406192476 and 8895381072 and
another mobile having two sims 9131284300 and 9755484300, one
Adhar Card, duplicate driving licence, voter card in the name of
Jeevanand Haldar (the petitioner) were seized. On weighing, each of
the four bags were found to be contain 27 kgs. of ganja. Total 108 kgs.
Since the Jeevanand Haldar (the petitioner) 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 charge sheet 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 accused Sanjay Dhali. During investigation, it
was found that the accused Sanjay Dhali (6371020043) and the
petitioner- 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 the petitioner-Jeevanand Haldar,
accused Sanjay Dhali and Sukesh Baroi indicating Sukesh Baroi to be
an absconder.
SUBMISSIONS
4. I have heard Mr. Kishore Kumar Mishra, learned counsel for
the petitioner and Mr. Gyanalok Mohanty, learned Standing Counsel.
5. Mr. Kishore Kumar Mishra, learned counsel for the
petitioner submits that the petitioner does not have any antecdents under
the NDPS Act and is in custody since 27.03.2023 (almost two years),
but till date trial has not been completed. He further submits that on
account of violation of the mandatory provisions of Section 52-A of the
NDPS Act, the investigation and trial are vitiated, for which the
petitioner is entitled to bail. His alternate submission is that if this
Court is not inclined to grant regular bail, the petitioner may be
released on interim bail to arrange for his defence. He has relied on
the decisions of the Hon'ble Supreme Court in the cases of:-
(i) Union of India vrs. Mohanlal: AIRONLINE 2016 SC 606 ::
2016 (1) SCC (CRI) 864,
(ii) Ginkala Meddilety vrs. State: AIRONLINE 2023 DEL 903
(iii) Mangilal vrs. State of Madhya Pradesh: AIRONLINE 2023
SC 621 ;
the Bombay High Court in the cases of
(iv) Shivraj Gorakh Satpute vrs. State of Maharashtra (passed in
Bail Application No. 2865 of 2022 disposed of on 15.09.2023 ),
(v) Kuldeep Suresh Raut vrs. State of Maharashtra : 2023 (3)
ABR (CRI) 569 ;
the Delhi High Court in the case of
(vi) Arvind Yadav in JC Through His Pairokar vrs. Govt. NCT
Delhi through Standing Counsel.
6. Mr. Gyanalok Mohanty, learned Standing Counsel opposes
the prayer for bail stating that although the petitioner does not have any
antecedents under the NDPS Act , but in view of the fact that the
petitioner belongs to Chattishgarh and 108 kgs. of ganja have been
recovered from the exclusive and conscious possesion . In view of
requirements of Section 37 of the NDPS Act, his prayer for bail is
liable to be rejected .
STATUTORY PROVISION
7. 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."
8. Section 37 of the NDPS Act states that bail should not be
granted to an accused unless the accused is able to satisfy the 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
9. In the case of NCB vs. Kashif (Criminal Appeal No.5544
of 2024 @ SLP (Crl.) No. 12120 of 2024), the Hon'ble Supreme Court
has held as follows :
"39. The upshot of the above discussion may be summarized
as under:
(i) The provisions of NDPS Act are required to be interpreted
keeping in mind the scheme, object and purpose of the Act; as
also the impact on the society as a whole. It has to be
interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must
bear in mind the provisions of Section 37 of the NDPS Act
which are mandatory in nature. Recording of findings as
mandated in Section 37 is sine qua non is known for granting
bail to the accused involved in the offences under the NDPS
Act.
(iii) The purpose of insertion of Section 52A laying down the
procedure for disposal of seized Narcotic Drugs and
Psychotropic Substances, was to ensure the early disposal of
the seized contraband drugs and substances. It was inserted in
1989 as one of the measures to implement and to give effect to
the 34 International Conventions on the Narcotic drugs and
psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure
as contemplated in sub-section (1) thereof, and any lapse or
delayed compliance thereof would be merely a procedural
irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground
alone.
(v) Any procedural irregularity or illegality found to have
been committed in conducting the search and seizure during
the course of investigation or thereafter, would by itself not
make the entire evidence collected during the course of
investigation, inadmissible. The Court would have to consider
all the circumstances and find out whether any serious
prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself
would neither vitiate the trial nor would entitle the accused to
be released on bail. The Court will have to consider other
circumstances and the other primary evidence collected
during the course of investigation, as also the statutory
presumption permissible under Section 54 of the NDPS Act.
40. The impugned order based on the inferences and
surmises, in utter disregard of the statutory provision of the
Act and in utter disregard of the mandate contained in Section
37 of the Act, and granting bail to the accused merely on the
ground that the compliance of Section 52A was not done
within reasonable time, is highly erroneous and deserves to be
quashed and set aside. Since, the High Court has not
considered the application of the respondent on merits and
has also not considered the mandatory requirement under
Section 37(1)(b) of the Act, we deem it appropriate to remand
the case to the High Court for deciding the bail application of
the respondent afresh on merits and in accordance with law.
The Supreme Court has also held thus : -
"24. Section 52A was inserted only for the purpose of early
disposal of the seized contraband drugs and substances,
considering the hazardous nature, vulnerability to theft,
constraint of proper storage space etc. There cannot be any
two opinions on the issue about the early disposal of the
contraband drugs and substances, more particularly when it
was inserted to implement the provisions of International
Convention on the Narcotics Drugs and Psychotropic
Substances, however delayed compliance or non-compliance
of the said provision by the concerned officer authorised to
make application to the Magistrate could never be treated as
an illegality which would entitle the accused to be released on
bail or claim acquittal in the trial, when sufficient material is
collected by the Investigating Officer to establish that the
Search and Seizure of the contraband substance was made in
due compliance of the mandatory provisions of the Act. 25.
It is significant to note that as per Section 54 of the said Act,
the courts are entitled to presume, unless and until the
contrary is proved that the accused had committed an offence
under the Act in respect of any narcotic drug or psychotropic
substance etc. for the possession of which he failed to account
satisfactorily. Therefore, unless such statutory presumption is
rebutted by the accused during the course of trial, there would
be a prima facie presumption that the accused had committed
the offence under the Act, if he is found to have possessed the
contraband drug and substance, and if he fails to account
satisfactorily, as contemplated in the said provision of Section
54. An anomalous situation would arise if a non-compliance
or delayed compliance of Section 52A is held to be vitiating
the trial or entitling the accused to be released on bail, though
he is found to have possessed the contraband substance, and
even if the statutory presumption is not rebutted by him. Such
could not be the intention of the legislature.
26. It is further pertinent to note that as per the settled legal
position even the evidence collected by an illegal search or
seizure could not be excluded or discarded. Whether the
evidence collected by an illegal search or seizure is
admissible or not has been considered by this Court in a
series of decisions and one of the earliest decisions is the
decision of the Constitution Bench in case of Pooran Mal Vs.
Director of Inspection (Investigation) New Delhi and Others
(supra). It was observed therein that:
"24. So far as India is concerned its law of evidence is
modelled on the rules of evidence which prevailed in
English Law, and Courts in India and in England have
consistently refused to exclude relevant evidence
merely on the ground that it is obtained by illegal
search or seizure."
CONCLUSION
10. Considering the nature of allegations against the petitioner, the
decision of the Supreme Court in the case of Kashif (supra), I am of the
prima facie view that non-compliance of Section - 52 A of the Act
cannot be a ground to acquit an accused or release him on bail. The
alleged non-compliance of Section 52 of the Act and its effect is a
however a matter to be gone into by the learned trial Court while
deciding the case.
11. In view of his lack of criminal antecedents, it may be said that the
petitioner is not likely to commit an offence if he is released on bail. But
as commercial quantity of ganja has been recovered from the exclusive
conscious possession of the petitioner, I am not prima facie satisfied that
he is not guilty of the offence. As the twin requirements of Section 37 of
the NDPS Act are not fulfilled, the prayer for bail is rejected.
12. 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.
13. Considering the fact that the petitioner is in custody since
27.03.2023 (almost two years), and fortified by 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 direct for release of the petitioner on interim bail for a
period of three months, so as to enable him to arrange for his defence, if
any.
14. The petitioner-Jeevanand Haldar shall be released on interim bail
for a period of three months by the learned 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 30,000/-.
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.
v)He shall appear in the learned trial court on each date it is fixed
for trial.
vi)He shall appear before the Malkanagiri Police Station on each
Sunday between 10.00 am to 11.00 a.m. unless he is permitted by
the learned trial court to leave Malkanagiri District.
vii) He shall surrender before the learned trial court on or before
15th May 2025 positively.
15. Violation of any condition will entail in cancellation of bail /
recall of this order.
16. The BLAPL is accordingly disposed of.
17. The learned trial Court is requested to make an endeavour to
dispose of the trial within a period of three months, if there is no other
impediment.
18. Copy of this order shall be sent by Mr. Gyanalok Mohanty,
learned Standing Counsel for on onward transmission to the IIC,
Malkangiri Police Station.
19. The IIC Malkangiri Police Station shall immediately bring to the
notice of the learned trial court, if the conditions imposed are violated.
20. No observation in this order should influence the learned trial court
during trial, as they have been made for the purpose of consideration of the
prayer for bail.
........................
(Savitri Ratho, J.)
Orissa High Court, Cuttack.
Signature NotThe
Verified
12th February, 2025,
Digitally Signed Puspa, Personal Assistant.
Signed by: PUSPANJALI MOHAPATRA
Reason: Authentication
Location: Orissa High Court
Date: 13-Feb-2025 20:28:03
