Orissa High Court

Mahendra Khemudu vs State Of Odisha ...... Opp. Party on 19 February, 2025

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                     BLAPL No. 11409 of 2024
Applications under Section 439 of the Code of Criminal Procedure.
                                --------------
  Mahendra Khemudu                      ......                   Petitioner

                                     -versus-

  State of Odisha                       ......                     Opp. Party


  For Petitioner                : Mr. Rajib Lochan Pattnaik, Advocate


  For Opp. Party                : Ms. Siva Mohanty, A.S.C.


                         BLAPL No. 10190 of 2024

  Mangaraj Muduli                       ......                   Petitioner

                                     -versus-

  State of Odisha                       ......                     Opp. Party


  For Petitioner                : Mr. Basudev Pujari, Advocate


  For Opp. Party                 : Ms. Siva Mohanty, A.S.C.
  --------------------------------------------------------------------------------

 CORAM:
       HON'BLE MISS JUSTICE SAVITRI RATHO

                           JUDGMENT

19.02.2025

Savitri Ratho, J. These bail applications under Section 439 of Cr.P.C. have

been filed in connection with Kalimela Excise P.R. Case No.103 of

2023-24 corresponding to 2 (a) C.C. Case No.56 of 2023, pending

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

Judge, Malkanagiri for commission of offence punishable under

Section 20 (b) (ii) (C) of the NDPS Act.

MAHENDRA KHEMUDU

2. BLAPL No.13055 of 2023 filed by the petitioner-

Mahendra Khemudu had earlier been dismissed as withdrawn on

22.11.2023.

Thereafter, his prayer for bail was rejected by the learned

Addl. Sessions Judge -cum- Special Judge, Malkangiri on

30.10.2024.

MANGARAJ MUDULI

3. BLAPL No.10190 of 2024 is the third application of the

petitioner-Mangaraj Muduli. His first application-BLAPL

No.13164 of 2023 had been dismissed on 07.12.2023 granting him

liberty to approach the learned Court below for bail afresh after

completion of the investigation.

His second application BLAPL No.5492 of 2024 had

been dismissed on 09.08.2024 granting liberty to him to move the

learned trial court for bail afresh in case there is undue delay in

completion of the trial.

Thereafter, his prayer for bail was rejected by the learned

Addl. Sessions Judge -cum- Special Judge, Malkangiri on

25.09.2024.

PROSECUTION CASE

4. The prosecution allegation in brief is that on 10.10.2023

at about 5.00 a.m., the S.I. of Excise, Kalimela Excise Station

while performing the patrolling duty, noticed the petitioners in a

Maruti Suzuki SX4 car bearing Registration No. AP-10-AN-5935.

Mahendra Khemudu was the driver and Mangaraj Muduli was

sitting in the back seat of the car with a white jari basta. As smell

of ganja was emanating from the car, a driver of an auto rickshaw

was asked to be a witness. After complying with the requirements

of the NDPS Act, they searched the car and recovered 140 kgs. of

ganja kept in five gunny bags from the car. Each bag contained 28

kgs of ganja. As the accused persons could not produce any

document in support of such possession, the ganja was seized and

they were arrested.

SUBMISSIONS

5. I have heard the learned counsel for the petitioners, and

gone through the materials on record .

Learned counsel for the petitioners have submitted that

the petitioners are in custody since 10.10.2023 and they do not

have any criminal antecedents under the NDPS Act or any

antecedents under Sections 274/275 of the IPC. They have further

submitted that since the seizure has been made from a private car,

Section 42 of the NDPS Act should have been complied with and

on account of non-compliance of Section 42 of the Act, the

petitioners are entitled to be acquitted and to be released on bail.

They have also submitted that out of four witnesses, only two

witnesses have been examined so far (one official witness and one

seizure witness). The seizure witness has not supported the

prosecution case and the official witness has admitted non-

compliance of mandatory provisions of the NDPS Act like Section

42 and 50 , which entitles the petitioners to bail. They have further

submitted that the petitioners are entitled to be released on bail on

account of delay in completion of the trial. In support of their

submissions, they have relied on the following decisions of the

Supreme Court in the cases of (i) Ankur Chaudhary v. State of

Madhya Pradesh decided on 28.05.2024 in Special Leave to

Appeal (Crl.) No.4648 of 2024 (ii) Rabi Prakash v. The State of

Odisha : 2023 Live Law (SC) 533 and (iii) Dheeraj Kumar Shukla

v. The State of Uttar Pradesh decided on 25.01.2023 in Special

Leave to Appeal (Crl.) No.6690 of 2022.

6. Ms. Siva Mohanty, learned Addl. Standing Counsel for

the State has submitted that the petitioners may be granted bail as

they have remained in custody since long, but trial has not been

completed and as they do not have any antecedent under the NDPS

Act.

JUDICIAL PRONOUNCEMENTS

7. The Supreme Court in the case of Ankur Chaudhary

(supra) where the accused had remained in custody for more than

two years for the offence punishable under Section 8 read with

Sections 22 and 29 of the NDPS Act and the two panch witnesses

had not supported the prosecution case, directed for release of the

petitioners on bail.

"Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting

in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered. In view of the above, we are inclined to allow this petition and direct to enlarge the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the trial Court."

The Supreme Court in the case of Rabi Prakash (supra)

where only one out of nineteen witnesses had been examined

and the accused had remained in custody for more than three

and half years , while allowing the prayer for bail , observed as

follows:

" 4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: 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 when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most

precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

In the case of Dheeraj Kumar Shukla (supra), two vehicles carrying ganja had been intercepted. The petitioner was driving a car from which 65 Kgs of ganja had been recovered. Considering the fact that the co accused who were the occupants of the Honda City car from which 92 Kgs of ganja had been recovered had been released on bail and the petitioner had been in custody for more than two and half years and trial was yet to start and the petitioner had no criminal antecedents, the Supreme Court observed that the provisions of Section 37 of the NDPS Act could be dispensed with. The relevant paragraphs are extracted below :-

"3. It appears that some of the occupants of the „Honda City‟ Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this

stage, more so when the trial is yet to commence though the charges have been framed.

4. For the reasons stated above but without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court.

5. It is made clear that in addition to the conditions that may be imposed by the Trial Court, the petitioner shall be required to appear before the Trial Court on every date of hearing. In case the petitioner is found to be involved in future in any other similar case, the respondent - State shall be at liberty to seek cancellation of bail granted to him by this Court."

In the case of NCB vs. Kashif (Criminal Appeal No.5544 of 2024 @ SLP (Crl.) No. 12120 of 2024), the Supreme Court has reiterated the position of law regarding evidence collected by an illegal search or seizure and held as follows:

"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."

ANALYSIS AND CONCLUSION

8. There can be no quarrel over the proposition that an accused is

entitled for an acquittal on account of violation of mandatory

provisions of the NDPS Act, if prejudice has been caused to him /

her. But this has to be proved during trial. It would therefore not be

proper to scan the case diary and the evidence of the witnesses to

consider the effect of alleged non-compliance of the mandatory

provisions of the NDPS Act for considering this application for bail.

9. As regards compliance of Section 37 of the NDPS Act, the

learned counsel for the State was given a chance to oppose the

prayers for bail.

10. In view of the above discussion, and the submissions of the

learned counsel, especially the submission that the petitioners do

not have any criminal antecedents and as the independent seizure

witness did not support the prosecution case, I am of the view that

Section 37 of the NDPS Act will not be a bar to allow the prayers

for bail of the petitioners.

11. The petitioners - Mahendra Khemudu and Mangaraj

Muduli shall be released on bail on such terms and conditions as

may be fixed by the learned Court below in seisin over the matter,

after verifying that they do not have any antecedents under the

NDPS Act or under Section - 274/275 IPC, including the following

conditions:

i) They will each furnish cash surety of Rs.20,000/- (Rupees twenty thousand) .

ii) They will not leave Malkanagiri District, without permission of the learned trial Court.

iii) They will furnish their local address and permanent address to the Court, which will be verified through the Police, before the petitioners are released on bail.

iv) They will furnish their active mobile number to the Court, which shall be verified, before they are released on bail. They shall intimate any change in their mobile number to their counsel immediately, so that it can be intimated to the Court .

v) They will remain personally present in the learned trial court on each date it is fixed for trial.

vi) They will appear before the Kalimela Police Station on every alternative Sunday between 10.00 am to 12.00 p.m.,

unless permitted by the learned trial court, to leave Malkangiri District.