Orissa High Court
Banty @ Nihar Ranjan vs State Of Odisha .... Opp. Party on 9 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.4057 of 2025
Banty @ Nihar Ranjan .... Petitioner
Samal Mr.S.C.Mohapatra,
Senior Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.J.Mohanty,
ASC
BLAPL No.4275 of 2025
Pon @ Manoj Nayak .... Petitioner
Mr.P.K.Barik,
Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.J.Mohanty,
ASC
BLAPL No.4368 of 2025
Kalia @ Ramesh Nayak .... Petitioner
Mr. S.K.Dwibedi,
Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.J.Mohanty,
ASC
Page 1 of 9
BLAPL No.4375 of 2025
Kanhu @ Asish Nayak .... Petitioner
Mr. S.K. Dwibedi,
Senior Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.J.Mohanty,
ASC
BLAPL No.4653 of 2025
Litu @ Abhiram Puhan .... Petitioner
Mr. P.K.Barik,
Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.J.Mohanty,
ASC
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 09.05.2025
01.
1.
In the above noted bail applications, the petitioners
are accused in connection with Special Case No.10 of
2025 arising out of Keonjhar Town P.S. Case No.164
of 2025 registered for alleged commission of the
offence punishable under Section 20(b)(ii)(c)/29 of the
N.D.P.S. Act, pending in the Court of the learned
Sessions Judge-cum-Special Judge, Keonjhar. The
petitioners had approached the learned Special Judge
I/C, Keonjhar praying for grant of bail. The learned
Court below vide its order dated 10.04.2025 rejected
the bail application of the petitioners. Being aggrieved,
the petitioners have filed the present petition under
Section 439 of the Cr.P.C. praying for enlargement on
bail.
2. Learned counsel for the petitioners, on instruction
from the petitioners, submits that, except the present
bail application, no other bail application of the
petitioners is pending in any other Court relating to
the aforesaid F.I.R.
3. The prosecution case is that 91.60 kgs. of
contraband ganja was recovered from the possession
of the petitioners. The allegations against the
petitioners is that on 26.03.2025, the IIC, Keonjhar
Town P.S. received credible information from the
reliable source that, illegal ganja was being
transported by a white colour Hyundai Verna Car
bearing Regd. No.OD02H-1551 and another Baleno
Car bearing Regd. No.OD33AN-3815, which was
coming from Kanjipani side and there was possibility
to move towards Anandapur side through Keonjhar.
They reached near Judiaghati near Bypass and
remained watchful. At about 11.15 AM, they could
see that one white colour Hyundai Verna Car bearing
Regd. No.OD02H-1551 and another Baleno Car
bearing Regd. No.OD33AN-3815 were coming from
Kanjipani side and seeing the police, they increased
the speed of the vehicles and tried their best to escape
from the police, but subsequently they were
apprehended by the police. On search of the dicky of
the vehicles, found pungent and odor smell of
contraband articles like ganja was coming from the
said vehicles. The complainant along with their staff
seized 4 nos. of jari bags containing total 92.60 kgs.
of ganja from the accused persons. Hence, the F.I.R.
4. Mr. Mohapatra, learned Senior Advocate along with
Mr. P.K. Barik, Mr. S.K. Dwibedi, Mr. Avijit Patnaik,
learned counsels appearing on behalf of the
petitioners in all the above cases contended that it is
an admitted case of the prosecution that two vehicles,
namely, one Hyundai Verna Car and another Baleno
Car were intercepted in the above noted cases. In the
Baleno Car, four accused persons were travelling and
in the Hyundai Verna Car, two accused persons were
travelling.
5. It is alleged by the prosecution that 91 kgs. of
contraband ganja was seized from both the cars.
From perusal of the seizure list and other relevant
documents, it reveals that the contraband ganja was
recovered from both the cars and it was mixed up
and separate packets were made by the police. It is
not coming to the fore on the record as to how much
quantity of contraband ganja was recovered from
which car.
6. Mr. Mohapatra, learned Senior Advocate contended
that the petitioners have credible defence regarding
non-possession of the contraband ganja consciously
and the prosecution has failed to distinguish from
which vehicle, what quantity of contraband was
recovered. It's also contended that possibility of not
recovering ganja from one of the cars is ruled out.
The police have completely violated the standard
procedure established under law regarding seizure.
Hence, all the accused are entitled to bail. The
petitioners are in custody since 27.03.2025.
7. It will be apt in the above circumstances to refer to
the Judgement of the Hon'ble Supreme Court in
State of Punjab v. Baldev Singh1, has held thus: -
"45. The judgment in Pooran Mal
case [(1974) 1 SCC 345 : 1974 SCC (Tax)
114] therefore, cannot be understood to
have laid down that an illicit article seized
during the search of a person, on prior
information, conducted in violation of the
provisions of Section 50 of the Act can be
used as evidence of unlawful possession
of the illicit article on the person from
whom that contraband had been seized
during an illegal search. Apart from the
position that in Pooran Mal case [(1974) 1
SCC 345 : 1974 SCC (Tax) 114] on facts, it
was found that the search and seizure
conducted in the cases under
consideration in that case were not
vitiated by any illegality, the import of that
judgment, in the present context, can only
be to the effect that material seized during
(1999) 6 SCC 172
search and seizure, conducted in
contravention of the provisions of Section
132 of the Income Tax Act cannot be
restrained from being used, subject to law,
before the Income Tax Authorities
in other legal proceedings against the
persons, from whose custody that material
was seized by issuance of a writ of
prohibition. It was not the seized material,
in Pooran Mal case [(1974) 1 SCC 345 :
1974 SCC (Tax) 114] which by itself could
attract any penal action against the
assessee. What is implicit from the
judgment in Pooran Mal case [(1974) 1
SCC 345 : 1974 SCC (Tax) 114] is that
the seized material could be used
in other legal proceedings against an
assessee, before the Income Tax
Authorities under the Income Tax Act,
dealing with escaped income. It is,
therefore, not possible to hold that the
judgment in Pooran Mal case [(1974) 1
SCC 345 : 1974 SCC (Tax) 114] can be
said to have laid down that the "recovered
illicit article" can be used as proof of
unlawful possession of the contraband
seized from the suspect as a result of
illegal search and seizure. If Pooran
Mal [(1974) 1 SCC 345 : 1974 SCC (Tax)
114] judgment is read in the manner in
which it has been construed in State of
H.P. v. Pirthi Chand [(1996) 2 SCC 37 :
1996 SCC (Cri) 210] (though that issue did
not strictly speaking arise for
consideration in that case), then there
would remain no distinction between
recovery of illicit drugs etc. seized during a
search conducted "after" following the
provisions of Section 50 of the NDPS Act
and a seizure made during a search
conducted "in breach of" the provisions of
Section 50 of the NDPS Act. Prosecution
cannot be permitted to take
advantage of its own wrong.
Conducting a fair trial for those who
are accused of a criminal offence is
the cornerstone of our democratic
society. A conviction resulting from an
unfair trial is contrary to our concept
of justice. Conducting a fair trial is both
for the benefit of the society as well as for
an accused and cannot be abandoned.
While considering the aspect of fair trial,
the nature of the evidence obtained and
the nature of the safeguard violated are
both relevant factors. Courts cannot allow
admission of evidence against an accused,
where the court is satisfied that the
evidence had been obtained by a conduct
of which the prosecution ought not to take
advantage particularly when that conduct
had caused prejudice to the accused. If
after careful consideration of the material
on record it is found by the court that the
admission of evidence collected in search
conducted in violation of Section 50 would
render the trial unfair then that evidence
must be excluded. In R. v. Collins [(1987) 1
SCR 265 (Canada)] the Supreme Court of
Canada speaking through Lamer, J. (as
his Lordship, Chief Justice of the Supreme
Court of Canada then was) opined that the
use of evidence collected in violation of the
Charter rights of an accused would render
a trial unfair and the evidence
inadmissible. In the words of the Supreme
Court of Canada:
"The situation is very different with respect
to cases where, after a violation of the Charter, the
accused is conscripted against himself through a
confession or other evidence emanating from him.
The use of such evidence would render the trial
unfair, for it did not exist prior to the violation and
it strikes at one of the fundamental tenets of a fair
trial."
The observations of the Hon'ble Supreme Court
underscore the importance of adhering to statutory
safeguards and ensuring a fair trial. In the present
case, the manner in which the alleged recovery was
made particularly the prosecution's failure to
establish the specific quantity of contraband
recovered from each vehicle raises serious concerns
about the integrity of the investigative process. This
aspect assumes significance in assessing whether the
petitioners were in conscious possession of the
contraband and whether the prosecution has been
able to establish a clear and individual nexus
between each accused and the contraband seized.
8. Additionally, regard being had to the nature of the
allegations against the petitioners in all the above
cases and the period of custody of the petitioners
since 27.03.2025, I am inclined to enlarge the
petitioners on bail in the above noted cases.
9. Hence, the petitioners in the above noted cases
are directed to be released on bail by the learned
Court in seisin over the matter in the aforesaid case
on such terms and conditions as it would deem just
and proper, subject to the following additional
conditions:
(i) The petitioners shall appear before the I.I.C. of
the concerned Police Station on every Sunday between
10.00 A.M. and 12.00 noon for at least six months;
(ii) They shall not leave the jurisdiction of the trial
Court till the disposal of the trial;
(iii) They shall appear before the trial Court on
each date on which the case is posted for trial;
(iv) They shall not tamper with the evidence in
any manner whatsoever;
(v) They shall not commit any offence while on
bail, and
(vi) They shall be released on bail subject to
verification of similar type of antecedents.
In the event the petitioners are found wanting
for violation of any of the bail conditions imposed by
this Court or the trial Court even on a single occasion,
the prosecution is at liberty to move appropriate
application before the Court below for cancellation of
the concession of bail granted by this Court. If such
application is filed, the trial Court should decide the
application on its own merit.
10. All the bail applications are accordingly disposed
of.
(S.S. Mishra)
Judge
Subhasis
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack.
Date: 12-May-2025 18:51:03
