Orissa High Court
Vikash Dahaiya vs State Of Odisha .... Opposite Party on 24 February, 2023
Author: V. Narasingh
Bench: V. Narasingh
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.11273 of 2022
Vikash Dahaiya .... Petitioner
-versus-
State of Odisha .... Opposite Party
For Petitioner : Mr. R.L. Pattnaik, Advocate
For Opposite Party : Mr. Abhinandan Pradhan, ASC
CORAM: JUSTICE V. NARASINGH
Date of hearing : 14.02.2023
Date of judgment: 24.02.2023
V. Narasingh, J.
1. Heard Mr. Mr. Pattnaik, learned counsel for the Petitioner and Mr. A. Pradhan, learned Addl. Standing Counsel.
2. The Petitioner is an accused in connection with Special G.R No.36 of 2021 pending on the file of learned Sessions Judge- cum-Special Judge, Malkangiri, arising out of Mathili P.S. Case No.42 of 2021 for commission of the alleged offence under Section 20(b)(ii)(C) of the N.D.P.S Act.
3. Being aggrieved by the rejection of his application for bail U/s. 439 Cr.P.C. by the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri by order dated 03.11.2022, the present BLAPL has been filed.
Page 1 of 10 BLAPL No.11273 of 20224. The prosecution case in brief is that on 07.03.2021 at about 12.35 A.M. on the main road of Govindpally Bus Stand, the police found two vehicles were coming in high speed from Malkangiri side. On suspicion, the police officials on duty intercepted and stopped the said vehicles. On search, it was found by the police party that four persons including driver were sitting inside the vehicle (Maruti Suzuki Tour vehicle) bearing registration number HR-22-R-4972. Similarly, in the 2nd vehicle a Toyota Corolla bearing registration number HR-12-J-1000, it was found that four persons including driver were inside the vehicle.
4-A. On further verification, it is alleged that the police party found two plastic sacks in the 1st vehicle and three sacks in the 2nd vehicle loaded in the boot of the said two vehicles. It is stated that pungent smell of Ganja was coming out from the boot of both the vehicles.
4-B. On interrogation by the police, passengers of both the vehicles alleged to have confessed that they were carrying ganja kept in the plastic sacks and loaded in the boot of the aforesaid two vehicles. They further alleged to have confessed that the ganja, which was seized from the vehicles, was procured from Chitrokonda Swabhiman area and they were transporting the same in the above noted two vehicles. Upon seizure and measurement of the contraband articles, it was found that the said articles were being transported from the place of procurement to the place of destination by using the above noted two vehicles and police team recovered a total contraband article weighing 137 Kgs. and 300 grams. Accordingly, F.I.R. was lodged by Krutibash Behera, S.I. of Page 2 of 10 BLAPL No.11273 of 2022 Mathili P.S. on 07.03.2021 and S.I Siba Prasad Bhadra took up the investigation.
5. This is the second journey of the Petitioner to this Court. By order dated 30.03.2022 in BLAPL No.2568 of 2021, this Court rejected the bail application of the Petitioner, inter alia, negating his contention of violation of Sections 42 and 50 of the N.D.P.S Act. While doing so, liberty was granted to move at a later stage.
6. A Coordinate Bench of this Court by order dated 14.10.2022 in BLAPL No.2430 of 2021 (Annexure-3) directed release of the co-accused Raghu @ Rahul Rajput Thakur on the ground of infraction of Section 50 of the N.D.P.S Act and mainly relying on the ground of parity, the Petitioner is seeking release in the present bail application.
7. Paragraph-13 of the bail application, which is relevant for the purpose, is quoted hereunder:
"14. That it is further submitted that the present Petitioner is custody since long and till date trial has not been commenced and in between co-accused namely Raghu @ Rahul Rajput Thakur released on bail by this Honourable Court in BLAPL No.2430 of 2021 on dtd.14.09.2022 and as such on the ground of parity the present petitioner also liable to be released on bail for the best interest of justice."
8. On perusal of the judgment of the Coordinate Bench which is annexed to this bail application at Annexure-3 series, it is seen that after analyzing the materials on record, this Court came to the finding that there has been no infraction of mandatory stipulations of Section 42 of the N.D.P.S Act.
Page 3 of 10 BLAPL No.11273 of 20229. But while referring to the alleged violation of Section 50 of the N.D.P.S Act, this Court took note of the stand of the prosecution in paragraph-14 of Annexure-3. The said paragraph is extracted hereunder:
"14. Further a careful scrutiny of note of argument submitted on behalf of the prosecution, this court observed that no specific stand has been taken in the said note of argument with regard to the compliance/non-compliance of Sections 42 and 50 of the N.D.P.S. Act. Moreover, learned counsel for the State in support of his contention contended that compliance/non- compliance of Sections 42 and 50 of the N.D.P.S. Act is a matter of trial and in that context, he relies upon judgment of the Hon'ble Supreme court in the case of Union of India through N.C.B., Lucknow vrs. Mohammad Nawaj Khan (Criminal Appeal No.1043 of 2021 disposed of on 22.09.2022) and Joswin Loba vrs. State of Karnataka vide order dated 02.02.2022 passed by Hon'ble Karnataka High Court in Criminal Petition No.6916 of 2021."
9-A. In paragraph-19 thereof, it has been stated thus:
"19. With regard to the petitioner's assertion that mandatory provision of Section 50 of the N.D.P.S. Act has not been complied with is concerned, this Court is of the considered view that in the judgment of the Hon'ble Supreme court in the case of Union of India through N.C.B., Lucknow vrs. Mohammad Nawaj Khan (supra), the Hon'ble Supreme Court has categorically observed that search was conducted in presence of the Gazetted Officer in compliance to the provision of Section 50 of the N.D.P.S. Act and the same is also found to have been mentioned in the F.I.R. also. On the other hand, in the present case, upon careful examination of the F.I.R. / P.R., it is seen that there is no whisper with regard to compliance of Section 50 of the N.D.P.S. Act."
9-B. In Paragraph-20 of the judgment at Annexure-3 series, Coordinate Bench of this Court came to the finding that there has been infraction of the mandatory provisions contained in Section 50 of the N.D.P.S Act and considering the implication thereof vis-à-vis the bar Page 4 of 10 BLAPL No.11273 of 2022 contained in Section 37 of the N.D.P.S Act directed release of the co- accused Raghu @ Rahul Rajput Thakur.
9-C. Paragraph-21 of the judgment (Annexure-3) dealing with non-compliance of Section 50 of the N.D.P.S Act, is quoted hereunder for convenience of ready reference.
21......due to non-compliance of Section 50 of the N.D.P.S. Act, this Court is of the prima facie opinion that there exists a reasonable ground to hold that the petitioner prima facie is not guilty due to non-compliance of mandatory provision of Section 50 and the petitioner is likely to be acquitted by the trial court, if there are no other materials / evidence brought on record in course of trial...."
10. Learned counsel for the Petitioner, Mr. Pattnaik submitted with vehemence that in view of categorical finding of the Coordinate Bench regarding infraction of Section 50 of the N.D.P.S. Act and release of the co-accused primarily on the said count, further continuance of the Petitioner in custody is not warranted and in fact punitive since ex facie he is similarly circumstanced.
11. Per contra, learned counsel for the State Mr. Pradhan, opposed the prayer for bail submitting that though there are materials on record which unerringly point to the compliance of Section 50 of the N.D.P.S Act but the same was not brought to the kind notice of the Coordinate Bench of this Court. Hence, the said judgment would not ennure to the benefit of the Petitioner.
12. It is the further submission of the learned counsel for the State relying on the judgment of the apex Court in the case of Vijaysinh Chandubha Jadeja vrs. State of Gujarat, (2011) 1 SC 609 that even otherwise as mandated in the said judgment that the infraction of Section 50 of the N.D.P.S Act is a matter of trial in the Page 5 of 10 BLAPL No.11273 of 2022 facts scenario of the present case and in this context, he relies on particularly Paragraph-31 of the said judgment, which is extracted hereunder:
"31.....Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."
13. This Court diligently perused the final form which is on record annexed to the earlier BLAPL No.2568 of 2021 and the copy of the FIR which is on record in the case at hand.
14. On a bare perusal of the FIR (running page 20 of the brief), it can be seen that the S.I of Police Krutibash Behera who intercepted the vehicle in which contraband (ganja) to the tune of 137 Kgs. 300 grams was allegedly being carried has categorically stated thus:
"...As the above noted persons were in exclusive and conscious possession of Ganja which is a contraband article and constitutes an offence under NDPS Act, 1985 and caught red handed in chance detection and due to high Maoist sensitivity, there is less scope to follow the procedures laid in Sec.42 NDPS Act. I offered them in writing to be searched in presence of any Executive Magistrate or any Gazzated officer and explained them in Hindi/Odia laid down on Sec.50 NDPS Act. They replied in writing that as there was no incriminating article with them, they wants to be search personally by me."
15. On perusal of the Final Form adverted to hereinabove, it is clear from the statements of Constables Arjun Kirsani (C.W.2), Abhimanyu Kope (C.W.3), Laxman Marandi (C.W.4) and Home Guards, Damu Nayak, Dambarudhar Nayak and Sukra Kope cited as Page 6 of 10 BLAPL No.11273 of 2022 charge sheeted witness Nos.5,6 and 7 respectively who accompanied S.I Krutibash Behera (C.W.1) that said C.W.1 gave an option to the accused in terms of Section 50 of the N.D.P.S Act. Independent witnesses Gupta Mandi and Lali Sagaria, charge sheeted witness nos.8 and 9 respectively, have also stated regarding compliance of Section 50 of the N.D.P.S Act.
16. Statements of the said independent witnesses (C.W Nos.8 and 9) in vernacular are extracted hereunder:
"....TAPARE BEHERA SIR SEHI 08 JANA AVHIJUKTA NKU MAGISTRATE DWARA NA KOUNASI GAZETTED OFFICER NKA DWARA TALASI HEBA KATHA PACHARI THILE KINTU SEMANE NIJA NIJA PAKHARE KOUNASI APATIKARA JINISA NAHI SETHI PAIN SEMANE SEMANAKARA TALASI BEHERA SIR NKA PAKHARE DEBE BOLI LIKHITA AKARA RE DEI THILE..."
16-A. The S.I of Police Krutibash Behera in his statement under Section 161 Cr.P.C. has reiterated the compliance relating to Section 50 of the N.D.P.S. Act and stated as under:
"....I offered them in writing to be searched in presence of any Executive Magistrate or any Gazzated officer and explained them in Hind/Odia laid down on Sec.50 NDPS Act. They replied in writing that as there was no incriminating article with them, they wants to be search personally by me. I briefed about the incident to the witnesses."
17. From an analysis of the materials on record it is clearly borne out that there has been compliance of Section 50 of the N.D.P.S. Act. Since such material was not brought to the kind notice of the Coordinate Bench, it resulted in finding that there was infraction of Section 50 of the N.D.P.S Act.
Page 7 of 10 BLAPL No.11273 of 202217-A. As already noted, such contention of the learned counsel for the Petitioner is de hors the record.
18. In the factual backdrop of the categorical recitals in the case diary as extracted hereinabove relating to adherence to mandatory prescription of Section 50 of the N.D.P.S Act while conducting personal search of the accused, the Coordinate Bench's finding regarding non- compliance thereof and consequential release of the accused on the said ground on bail is not binding.
19. The rejection of the bail application of the co-accused (present Petitioner) negating the contention regarding infraction of Sections 42 and 50 of the N.D.P.S Act was also evidently not brought to the kind notice of the Coordinate Bench.
20. Earlier bail application of the present Petitioner was rejected by order dated 30.03.2022 in BLAPL No.2568 of 2021. Paragraphs 5,7,8 and 9 of the said order is quoted hereunder for convenience of ready reference:
"xxx xxx xxx
5. Learned Senior Counsel for the petitioner submits that there has been patent violation of Sections 42 and 50 of the N.D.P.S. Act and independent seizures have been clubbed together so as to attract the bar under Section-37 of the NDPS Act and on bare perusal, it cannot be seen that the statement of the witnesses have been mechanically recorded, for which the petitioner is entitled to be released on bail.
xxx xxx xxx
7. Per contra, the learned counsel for the State refutes the submission relating to violation of Section-42 and 50 of the NDPS Act and seeks dismissal of the bail application on account of the bar contained in Section-37 of the NDPS Act.
8. Taking into account the quantity of seizure of the contraband being to the tune of 138Kg 300grams (net weight), in view of the bar contained in Section-37 of the NDPS Act, this Court is not inclined to entertain the application for bail at this stage. Accordingly, the BLAPL is thus stands rejected.
Page 8 of 10 BLAPL No.11273 of 20229. It is open for the petitioner to move this Court at a later stage, if so advised."
21. It is manifestly clear that the judgment of this Court at Annexure-3 was passed on account of misrepresentation of facts by both sides.
22. It certainly does not augur well for the justice delivery system.
23. The claim of parity cannot be based on unsubstantiated assertions. The same has to be tested on the altar of facts and law. There cannot be any straight jacket formula for applying the said doctrine.
24. On the aspect of parity, this Court in the case of Prafulla Sahu @ Geda vrs. State of Orissa, (2013) 116 CLT 124 quoted with approval the dictum of Allahabad High Court in the case of Chander alias Chandra vrs. State of U.P, 1998 Crl. L.J 2374, which runs thus:
"21. Our answers to the questions referred are as follows:
1. If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity.
2. A judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail."
25. It is trite law that parity cannot be the sole criterion for grant of bail. It is one of the facets of consideration and there can never be a straight jacket formula in applying the rule of parity. As it is often said each case has to be decided in the given facts.
26. Even otherwise as discussed hereinabove, the question of parity in the case at hand does not arise since the materials for consideration relating to alleged non-compliance of the mandatory provision contained in Section 50 of the N.D.P.S Act was not placed for kind consideration of the Page 9 of 10 BLAPL No.11273 of 2022 Coordinate Bench for which the co-accused was directed to be released, inter alia, for infraction of such mandatory provision.
27. Hence, on an analysis of the materials on record, this Court does not find any cogent reason to deviate from its earlier order dated 30.03.2022 in BLAPL No.2568 of 2021.
28. It is needless to state here that the observations made herein are only for the purpose of consideration of the bail application and ought not to be construed as expressing any opinion relating to the merit of the contention of the Petitioner regarding infraction of the mandatory provisions of Sections 42 and 50 of the N.D.P.S Act. Such contention regarding violation of such mandatory provision has to be construed independently on its own merit during trial.
29. Accordingly, BLAPL stands rejected.
(V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 24th of February, 2023/ Pradeep Page 10 of 10 BLAPL No.11273 of 2022