Orissa High Court
Kabul @ Laxman Khora @ vs State Of Odisha .... Opp. Party on 19 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.66 of 2025
Kabul @ Laxman Khora @ .... Petitioner
Kabula Khora
Mr.P.K.Maharaj,
Advocate
-versus-
State of Odisha .... Opp. Party
Mr.Bibekananda
Nayak, AGA
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 19.02.2025
01. 1. The petitioner is seeking quashing of the entire
criminal prosecution in connection with T.R. Case
No.35 of 2018 arising out of Machhkund P.S. Case
No.80 of 2018 registered for the alleged commission of
the offence punishable under Sections 20(b)(ii)C/29 of
the N.D.P.S. Act pending in the Court of the learned
Additional Sessions Judge-cum-Special Judge,
Koraput.
2. The charge sheet has been filed in the present
case on 23.12.2019 against four accused persons.
The petitioner appears to have been absconding.
Therefore, the trial qua the petitioner has been spilted
up.
Page 1 of 6
3. Three accused persons have faced the trial. The
learned Additional Sessions Judge-cum-Special
Judge, Koraput, vide its judgment dated 02.12.2024
in T.R. No.35/2018 recorded an acquittal in favour of
the accused persons, those who have faced the trial.
4. Mr. Maharaj, learned counsel for the petitioner
submits that the petitioner has been implicated in the
present case on the basis of the confessional
statement of one of the principal accused, who was
put to trial and has been acquitted. He has relied
upon paragraph-12 of the judgment of the learned
Court below, which reads thus:
"12. Moving ahead, P.W.1 is stated to have put his
brass seal on each ganja bags after being weighed
and thereafter he made over the same to S.I.
Pradeep Kumar Nayak and keeping the same in the
P.S. Malkhana for its safe custody and for
production before the court as per the procedure
under the NDPS Act. According to P.W.1, after
completion of formalities of search and seizure he
drew plain paper F.I.R., registered the same vide
Machhkund P.S. Case No.80, dated. 30.09.2018 and
directed S.I. of police Pradeep Kumar Nayak to take
up investigation of the case. On perusal of Ext.P-18,
it is ascertained that P.W.1 has registered
Machhkund P.S. Case No.80/2018 on the same day
i.e. on 30.09.2018 and directed S.I. of police P.K.
Nayak (P.W.12) to take up investigation of the case.
During the course of investigation, P.W.12 examined
the complainant and other witnesses, made entry of
the Mal Items received from P.W.1 and kept the mal
item in P.S. Malkhana vide M.R. No.18/2018 in
compliance to section 55 of NDPS Act and also
entered the fact in the General Diary. But, during
cross-examination he stated that he has not
resealed the contraband articles before keeping the
same in the police station malkhana. Surprisingly,
P.W.12 stated during cross-examination that except
visiting the spot and preparing spot map, he has not
done anything in this case. Further, it is claimed by
Page 2 of 6
the prosecution that P.W.1 sealed the seized
contraband ganja packets as "1" to "94" with the
wax impression of his personal brass seal and left
his personal brass seal in zima of the Executive
Magistrate. Admittedly, the Executive Magistrate has
not been examined in this case and the brass seal
which has been used in sealing the seized
contraband ganja packets, has not been produced
and proved in this case. P.W.12 further stated that
he made prayer before the Court for drawing of
sample and forwarding the same to the R.F.S.L.,
Berhampur for chemical examination and opinion.
Evidence of P.W.12 further reveals that after
drawing three sets of sample by the S.D.J.M., Korapt
from the bulk ganja jerry bags, those were marked
and were sent to the RFSL, Berhampur through
constable 904 Prafulla Kumar Nayak under the
forwarding letter of the S.D.J.M., Koraput vide Ext.P-
31/P.W.12 under Mal Challan vide Ext.P-
31/2/P.W.12. Further, the brass seal of P.W.1 has
not been produced or proved in this case. The station
diary entry or the Malkhana register which contains
the entry with regard to Entry No.18/2018 and
19/2018 have not been produced and proved in this
case."
5. Mr. Maharaj, learned counsel for the petitioner
also relied upon the judgment of the Hon'ble Supreme
Court in the case of Karan Talwar vs. State of
Tamil Nadu, reported in 2024 SCC OnLine SC
3803. Relevant paragraphs-11 & 12 reads thus:
"11. When this be the position, the question is
whether the two Courts were justified in holding that
there is prima facie case against the appellant to
proceed against him. In this contextual situation, it is
relevant to refer to the decision of this Court
in Dipakbhai Jagadishchandra Patel v. State of
Gujarat5 Paragraphs 23 and 24 of the said decision
are relevant for the purpose of this case and they
read thus:--
"23. At the stage of framing the charge in
accordance with the principles which have been
laid down by this Court, what the court is
expected to do is, it does not act as a mere post
Page 3 of 6
office. The court must indeed sift the material
before it. The material to be sifted would be the
material which is produced and relied upon by
the prosecution. The sifting is not to be
meticulous in the sense that the court dons the
mantle of the trial Judge hearing arguments
after the entire evidence has been adduced
after a full-fledged trial and the question is not
whether the prosecution has made out the case
for the conviction of the accused. All that is
required is, the court must be satisfied that
with the materials available, a case is made out
for the accused to stand trial. A strong
suspicion suffices. However, a strong suspicion
must be founded on some material. The
material must be such as can be translated into
evidence at the stage of trial. The strong
suspicion cannot be the pure subjective
satisfaction based on the moral notions of the
Judge that here is a case where it is possible
that the accused has committed the offence.
Strong suspicion must be the suspicion which is
premised on some material which commends
itself to the court as sufficient to entertain the
prima facie view that the accused has
committed the offence.
24. Undoubtedly, this Court has in Suresh
Budharmal Kalani [Suresh Budharmal
Kalani v. State of Maharashtra, (1998) 7 SCC
337], taken the view that confession by a co-
accused containing incriminating matter
against a person would not by itself suffice to
frame charge against it. We may incidentally
note that the Court has relied upon the
judgment of this Court in Kashmira
Singh v. State of M.P. [Kashmira Singh v. State
of M.P., (1952) 1 SCC 275]. We notice that the
observations, which have been relied upon,
were made in the context of an appeal which
arose from the conviction of the appellant
therein after a trial. The same view has been
followed undoubtedly in other cases where the
question arose in the context of a conviction and
an appeal therefrom. However, in Suresh
Budharmal Kalani [Suresh Budharmal
Kalani v. State of Maharashtra, (1998) 7 SCC
337], the Court has proceeded to take the view
that only on the basis of the statement of the
Page 4 of 6
co-accused, no case is made out, even for
framing a charge."
12. As noted hereinbefore, the sole material available
against the appellant is the confession statement of the
co-accused viz., accused No. 1, which undoubtedly
cannot translate into admissible evidence at the stage of
trial and against the appellant. When that be the
position, how can it be said that a prima facie case is
made out to make the appellant to stand the trial. There
can be no doubt with respect to the position that
standing the trial is an ordeal and, therefore, in a case
where there is no material at all which could be
translated into evidence at the trial stage it would be a
miscarriage of justice to make the person concerned to
stand the trial".
6. Relying upon the aforementioned judgment of the
Hon'ble Supreme Court, Mr. Maharaj, learned counsel
for the petitioner submits that the facts of the present
case resembles with the case cited above. The case of
the petitioner is directly covered by the
aforementioned judgment of the Hon'ble Supreme
Court.
7. Mr. Nayak, learned Additional Government
Advocate for the State submits that petitioner who
has been absconding cannot derive the benefit of the
evidences adduced by the prosecution vis-à-vis the
accused persons who have faced the trial. The learned
trial Court has appreciated the evidence which has
come on record vis-à-vis the three accused persons
those who have faced the trial. Hence, the finding of
the learned trial Court in the judgment dated
02.12.2024
passed in T.R. No.35/2018 while
acquitting the accused shall not inure to the benefit
of the petitioner.
8. I have taken into consideration the submissions
made by the learned counsels for the parties at the
Bar and also perused the evidence on record. I am not
inclined to entertain the present petition at this stage.
However, regard being had to the facts of the present
case and the nature of the evidence which has come
on record vis-à-vis the three accused persons are
concerned, the petitioner has been implicated on the
basis of the confessional statement of the principal
accused who has already been acquitted, I am of the
considered view that the learned trial Court shall do
well to see that the trial in the present case is
completed as expeditiously as possible, preferably
within a period of three months since the petitioner is
in custody.
9. With the aforementioned observation, the CRLMC
is disposed of.
(S.S. Mishra)
Judge
Subhasis
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack.
Date: 20-Feb-2025 18:52:20
