Orissa High Court
Pankaj Prusty vs State Of Orissa on 26 October, 2015
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 5087 of 2015
Application under section 439 of the Code of Criminal Procedure,
1973.
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Pankaj Prusty ........ Petitioner
- Versus-
State of Orissa ........ Opp. Party
For Petitioner: - Miss Deepali Mohapatra
Sandeep Parida
For Opp.Party: - Mr. Prem Kumar Pattnaik
(A.G.A)
BLAPL No. 5088 of 2015
Pramod Barik ........ Petitioner
- Versus-
State of Orissa ........ Opp. Party
For Petitioner: - Miss Deepali Mohapatra
Sandeep Parida
For Opp.Party: - Mr. Prem Kumar Pattnaik
(A.G.A)
BLAPL No.5149 of 2015
Bira Kishore Dwari & Ors. ........ Petitioners
- Versus-
State of Orissa ........ Opp. Party
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For Petitioners: - Sameer Kumar Mishra
J.Pradhan
Miss. P.P. Mohanty
Swyamjeet Rout
For Opp.Party: - Mr. Prem Kumar Pattnaik
(A.G.A)
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S. K. SAHOO
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Date of Argument- 08.10.2015 Date of order- 26.10.2015
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S. K. SAHOO, J.The petitioner in BLAPL No.5087 namely, Pankaj Prusty, petitioner in BLAPL No.5088 of 2015 namely, Pramod Barik and petitioners in BLAPL No.5149 of 2015 namely, Bira Kishore Dwari, Bagaban Sahu and Pramod Barik have filed applications under section 439 Cr.P.C. for bail as their prayer for bail was turned down by the learned Sessions Judge-cum-Special Judge, Kandhamal, Phulbani.
Since all these bail applications arise out of same First Information Report, on the basis of which Gochhapada P.S. Case No.28 of 2015 was registered on 20.04.2015 under sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter for short "N.D.P.S. Act") corresponding to G.R. Case No.42 of 2015 pending in the Court of learned Sessions Judge-cum-Special Judge, Kandhamal, Phulbani, 3 with the consent of the parties, the bail applications were heard analogously and disposed of by this common order.
The learned counsel for the petitioners in BLAPL No.5149 of 2015 has filed a memo not to press the bail application of petitioner no.3 Pramod Barik as the said accused has filed a separate bail application vide BLAPL No.5088 of 2015. The memo is kept on record. The bail application of petitioner no.3 Pramod Barik in BLAPL No.5149 of 2015 is disposed of as not pressed.
2. On 20.04.2015 one Bibhudata Rautaray, Sub-
Inspector of Police, Gochhapada Police Station lodged the First Information Report before Officer-in-Charge, Gochhapada Police Station, District, Kandhamal stating therein that on 19.04.2015 at about 5.30 p.m., the Officer-in-Charge of Gochhapada Police Station received reliable information that one Sumanta Kumar Khatua along with his associates were transporting ganja in a white colour Bolero Car bearing Registration No.OD-27-4015 being escorted by three bikes bearing Registration Nos. OD-31- 0573, OD-27-0623 and OD-02-B-7492 and they were likely to pass through Gochhapada-Balandapada Road. The fact was entered in the Station Diary of the Police Station and then the informant along with the members of the raiding party 4 proceeded to the spot being accompanied by two local witnesses and they reached at Bunduli Chhak and waited there concealing their presence. After about five to ten minutes, the white colour Bolero vehicle being escorted by three bikes came as per prior information and accordingly the raiding party members detained the bikes and the Bolero car. The petitioners in the three bail applications were in the three bikes which were escorting the Bolero vehicle. Two co-accused persons namely, Ashis Pradhan and Bhagat Manira were in the Bolero vehicle. The rider of the first piloting bike bearing Registration No.OD-02-B-7492 ran away towards nearest jungle leaving his bike by the side of the road but the raiding party members caught hold of him. From the personal search of the petitioners, no incriminating materials were detected but on search, from the Bolero vehicle, seven numbers of big plastic bags containing ganja were found and the total quantity of ganja on weighment became 189 Kg. 460 grams. The weighment of ganja was made in presence of the Block Development Officer, Phiringia -cum- Executive Magistrate. Samples of ganja from each of the seven plastic bags were separately drawn, packed and sealed. The seizure lists in respect of ganja, Bolero vehicle, bikes, articles recovered from personal search of the petitioners were prepared. The petitioners were 5 taken into custody. FIR was lodged against seven accused persons including the petitioners who were in the escorting bikes, two co-accused persons who were in the Bolero vehicle as well as the owner of the Bolero vehicle namely, Sumanta Kumar Khatua.
3. During course of investigation, the petitioners were forwarded to Court on 20.04.2015. The seized sample exhibits were sent to the Director, SFSL, Rasulgarh, Bhubaneswar who submitted chemical examination report indicating therein that as a result of physical, chemical and microscopic examination, the exhibits were found to contain fruiting and flowering tops of cannabis plant i.e. ganja. After completion of investigation, charge sheet was submitted under sections 20(b)(ii)(C) and 29 of N.D.P.S. Act against the petitioners and others after receipt of the order from Superintendent of Police, Kandhamal keeping the investigation open for other purposes.
4. The bail applications of the petitioners were rejected by the learned Sessions Judge-cum-Special Judge, Kandhamal, Phulbani mainly on the ground that commercial quantity of ganja was recovered from the Bolero vehicle being driven by some of the co-accused persons and the petitioners were escorting the said Bolero in three bikes. It was further observed that even 6 though no ganja was seized from the bikes of the petitioners but they were party to criminal conspiracy for commission of offence under section 20(b)(ii)(C) of N.D.P.S. Act and were caught red handed at the place of incident and admitted before the police officials transporting ganja for their boss Mr. Sumanta Kumar Khatua. It was further held that the investigation was under
progress and there was chance of tampering with the prosecution evidence and absconding from the course of justice. Considering the nature, gravity and seriousness of the offence, the bail applications were rejected.
5. The learned counsels for the petitioners Miss Deepali Mohapatra and Mr. J. Pradhan contended that merely because the petitioners were in the bikes which were moving in front of the Bolero vehicle carrying ganja, in absence of any other materials, it cannot be said that the petitioners were escorting the Bolero vehicle or transporting the ganja in question. The leaned counsels further urged that the confessional statements of the petitioners before police officials which have been created for the purpose of the case have got no evidentiary value in the eye of law and since charge-sheet has already been submitted, taking into account the period of detention of the petitioners in 7 judicial custody, the bail applications of the petitioners may be favourably considered.
The learned counsel for the State Mr. Prem Kumar Pattnaik, Additional Govt. Advocate on the other hand emphatically countered the submissions raised on behalf of the petitioners and harangued that the statements of the raiding party members as well as local witnesses clearly indicate that the petitioners were escorting the Bolero vehicle in three motorcycles which was carrying commercial quantity of ganja. When the vehicle was intercepted, one of the petitioners namely, Pankaj Prusty, accused in BLAPL No.5087 of 2015 tried to escape from the spot leaving his motorcycle but he was chased and apprehended. The other petitioners could not escape from the spot. The learned counsel for the State further urged that the conduct of the petitioners in escorting the vehicle clearly indicates that they were aware that the vehicle was carrying ganja and therefore they are equally liable like the occupants of the Bolero vehicle. It is further contended that by piloting the Bolero vehicle for the purpose of reaching at the safe destination, prima facie materials regarding criminal conspiracy is made out. It was further urged that section 37 of the N.D.P.S. Act is a bar for grant of bail to the persons accused of offences 8 involving commercial quantity of ganja and therefore the petitioners do not deserve to be released on bail.
6. Considering the rival submissions raised at the Bar and looking at the materials available on record, it appears from the statements of Suresh Kanhar, Rohit Kanhar and Ajit Kanhar that the petitioners were escorting the Bolero vehicle in three bikes and when they were intercepted, one of the petitioners namely, Pankaj Prusty was trying to escape from the spot but was unsuccessful because of the timely intervention of the raiding party members. The conduct of the petitioners, their arrest at the spot coupled with their statements before the raiding party members make out a prima facie case against the petitioners.
The role of an escorting vehicle is to ensure that the escorted vehicle reaches its destination safely without any kind of hindrance. Escorting vehicles move either in front of or in back of the escorted vehicle and persons in charge of escorting used to warn the driver of the escorted vehicle if there is anything up ahead that can interfere with the safe passage. When the escorting vehicle members were aware that in the escorted vehicle, commercial quantity of ganja are being carried and inspite of such knowledge they participated in the operation to 9 enable the escorted vehicle reach at its destination safely and there are elements of criminal conspiracy which can be inferred from the surrounding circumstances coupled with their conduct at the spot makes out prima facie case against the petitioners. The vehicle owner has not yet been apprehended and the source of procurement of such a huge quantity of ganja has not yet been ascertained for which the investigation has been kept open. Many more things may come out during course of further investigation after the arrest of the owner.
Section 29 of the N.D.P.S. Act prescribes punishment for abetment and criminal conspiracy to commit an offence punishable under chapter IV of the said Act and the abettors or the criminal conspirators will be punished with the same punishment as provided for the offence. In a case of this nature, it is not only the persons who were present inside the Bolero vehicle but all those persons who facilitated the commission of the offence as abettors or criminal conspirators or escorting the vehicle having knowledge that the vehicle was carrying commercial quantity of ganja with an intention to let the vehicle reach at its safe destination, are also equally liable. The contentions raised by the learned counsels for the petitioners that since nothing incriminating was found from the possession 10 of the petitioners on personal search and they were not found inside the Bolero vehicle, they cannot be fastened with any liability are fallacious and cannot be accepted.
Section 37 of the N.D.P.S. Act opens with a non-
obstance clause. Non-obstance clause must be given its due importance. The powers of the High Court to grant bail under section 439 Cr.P.C. are subject to the limitations contained in section 37 of the N.D.P.S. Act. The expression "reasonable grounds" used in section 37(1)(b)(ii) of N.D.P.S. Act connotes substantial probable causes for believing that the accused is not guilty of the offence charged which in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of such satisfaction. Whether the grounds are reasonable or not depend on the circumstances in a given situation. The Court while dealing with an application for bail is not called upon to record a finding of not guilty but to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. Additionally, the Court has to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.
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7. In view of the available materials on record, nature and seriousness of accusation, conduct of the petitioners in escorting the Bolero vehicle carrying ganja, commercial quantity of ganja seized in the case as well as bar under Section 37 of the N.D.P.S. Act, at this stage when further investigation is under progress, I am not inclined to release the petitioners on bail.
Accordingly, the prayer for bail of the petitioners sans merit and hence stands rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 26th October, 2015/ Sisir