Orissa High Court
Sanjay Dhali vs State Of Odisha ...... Opp. Party on 12 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 6212 of 2024
An application under Section 439 of the Code of Criminal
Procedure.
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Sanjay Dhali ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
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For Petitioner : Mr. Nihar Ranjan Sahoo, Advocate
For Opp. Party : Mr. Gyanalok Mohanty, SC
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
12.02.2025 Savitri Ratho, J This is the second application of the petitioner under Section 439 of Cr.P.C. in connection with Malkangiri P.S. case No. 169 of 2023 corresponding to Special G.R. Case No. 91(A) of 2023 pending in the Court of the learned Sessions Judge -cum- Special Judge, Malkangir. Preliminary chargesheet had initially been submitted against co-accused Jeevanand Haldar (petitioner in BLAPL No. 13036 of 2023) on 21.09.2023 for commission of BLAPL No. 6212 of 2024 Page 1 of 12 offences under Sections 20(b)(ii)(C)/25/29 of the NDPS Act, keeping the investigation open. After the petitioner was arrested, final chargesheet has been submitted on 16.05.2024 against Jeevanand Haldar under Sections 20(b)(ii)(C) /25/29 of the NDPS Act, the petitioner Sanjay Dhali and co-accused Sukesh Baroi under Sections 20(b)(ii)(C)/29 of the NDPS Act indicating Sukesh Baroi to be an absconder.
2. Before he was arrested on 03.01.2024, the petitioner had filed two applications under Section 438 of the Crl.P.C before this Court. ABLPL No. 5982 of 2023 was dismissed on 30.08.2023 and ABLPL No. 11221 of 2023 has been dismissed on 08.12.2023.
3. BLAPL No. 6212 of 2024 filed earlier by the petitioner under Section - 439 of the Cr.P.C had been dismissed as withdrawn on 05.02.2024.
4. Thereafter, the petitioner has moved the learned Court below for bail, but his prayer has been rejected by the learned Special Judge, Malkangiri (In-charge) on 29.05.2024. PROSECUTION ALLEGATIONS
5. The prosecution allegation in brief is that on 26.03.2023 at about 3.30 p.m., the S.I. of Malkangiri Police Station had proceeded on patrolling duty/MV checking duty in Malkangiri BLAPL No. 6212 of 2024 Page 2 of 12 town near Goudaguda Chowk Malkangiri. At about 4.00 p.m. he received credible information that one person who transporting ganja in a white colour Swift Dzire car from Korkunda side. He stopped the vehicle at Goudaguda Chowk. On examination, the driver disclosed his identity to be Jeevanand Haldar of Jagdalpur, Bastar (Chattisgarh). Two plastic tinsel jerry bags were recovered from the dicky of the car and two tinsel jerry bags were found in the middle seat of the car from which acute smell of ganja was emanating. On account of his professional experience, the I.O. suspected the same to be contraband ganja. On further examination, the accused confessed that he was transporting ganja to Raipur for sale and the same had been delivered to him by Sanjay Dhali (the petitioner) having Mobile no. 8480346589 and 6371020043 of MV-84 Padmagiri at present Malkangiri; and Sukesh Baroi of MV-83, Padmagiri having Mobile No. 6267311361. After arranging two independent witnesses - Santosh Suna and Ramesh Suna, and after complying with the mandatory provisions of the NDPS Act and in the presence of an Executive Magistrate, the vehicle and accused were searched and apart from other materials, cash of Rs. 3000/-, one ACE keyboard mobile having two numbers 9406192476 and 8895381072 and another BLAPL No. 6212 of 2024 Page 3 of 12 mobile having two SIMs bearing numbers 9131284300 and 9755484300, one Adhar Card, duplicate driving licence, voter card and one duplicate PAN card in the name of Jeevanand Haldar were seized. On weighing, each of the four bags were found to be contain 27 kgs. of ganja. (Total 108 kgs.) Since the accused Jeevanand Haldar could not produce any authorization for possession of transportation of the ganja, the ganja was seized and he was arrested. The other accused persons could not be arrested for which the I.O. submitted preliminary chargesheet on 21.09.2023 against Jeevanand Haldar keeping investigation open. During investigation, it was found that Malkangiri P.S. Case No. 129 of 2005 under Sections 20(b)(ii)(C) of the NDPS Act had been registered against the petitioner Sanjay Dhali. During investigation, it was found that the petitioner-Sanjay Dhali (6371020043) and accused Jeevanand Haldar (9131284300) were in regular contact with each other over their mobile phones. The petitioner was arrested from his house on 02.01.2024 and thereafter the charge sheet has been submitted on 16.05.2024 against co accused Jeevanand Haldar, petitioner-Sanjay Dhali and co accused Sukesh Baroi indicating Sukesh Baroi to be an absconder. BLAPL No. 6212 of 2024 Page 4 of 12 SUBMISSIONS
6. I have heard Mr. Nihar Ranjan Sahoo, learned counsel for the petitioner and Mr. Gyanalok Mohanty, learned Standing Counsel.
7. Mr. Nihar Ranjan Sahoo, learned counsel for the petitioner submitted that the petitioner is in custody since 03.01.2024 and till date the trial has not started. He further submits that the only material against the petitioner is the confession of the co-accused Jeevanand Haldar before the Police and his own confession. Relying on the case of Tofan Singh vrs. The State of Tamil Nadu; (2021) 4 SCC 1 : AIR 2020 SC 5592 he submitted that the statement of co-accused cannot be used against the petitioner either for convicting him or for detaining him in custody. He further submitted that though the petitioner was an accused in Malkangiri P.S. Case No. 129 of 2005, he has been acquitted by judgment dated 24.01.2008 passed by the Additional Sessions Judge -cum- Special Judge, Malkangiri. He also submitted that the petitioner had been released on interim bail to participate in the obsequies of his father pursuant to order dated BLAPL No. 6212 of 2024 Page 5 of 12 23.08.2024 and he has not misused the liberty granted to him and surrendered in the court below on the date fixed.
8. Mr. Gyanalok Mohanty, learned Standing Counsel opposed the prayer for bail stating apart from the confession of the co-accused Jeevanand Haldar and the petitioner, the analysis of the CDR/STR of the call records revealed that the petitioner was in constant touch with the main accused Jeevanand Haldar on his mobile 6371020043 and 9131284300 before the date of occurrence and on the date of occurrence. That apart, the petitioner was involved in another case under the NDPS Act involving commercial quantity (Malkangiri P.S. Case No. 129 of 2005). He has been acquitted him on the basis of reasonable doubt and it is not a case of clean acquittal. In view of the requirements of Section 37 of the NDPS Act and the involvement of the petitioner in the earlier case, it cannot be said that he will not commit any offence if he is released on bail, so Section 37 of the NDPS Act will be a bar for releasing the petitioner on bail. STATUTORY PROVISIONS
9. Section 37 of the NDPS Act is extracted below:-
"37. Offences to be cognizable and non-bailable.--
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--BLAPL No. 6212 of 2024 Page 6 of 12
(a)every offence punishable under this Act shall be cognizable;
(b)no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2)The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
10. Section 37 of the NDPS Act states that bail should not be granted to an accused unless the accused is able to satisfy twin conditions i.e. reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence, if granted bail.
JUDICIAL PRONOUNCEMENTS
11. In the case of Tofan Singh (supra), the Supreme Court has answered the reference by interalia holding as follows: BLAPL No. 6212 of 2024 Page 7 of 12
"(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers"
within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
12. In the case of Union Of India vs. Ajay Kumar Singh @ Pappu : 2023 SCC Online 346, the respondent had been arrested on the basis of statements of the co- accused recorded under Section - 67 of the NDPS Act. They had stated that he had supplied the ganja to them. Other cases under the NDPS Act were pending against him. The co accused persons had been released on bail. The respondent-accused has been directed to be released on bail by the High Court on the ground of delay in trial, the decision dated 11.07.2022 of the Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Another in SLP(Crl.)No.5191 of 2021 and as the main accused had been granted bail. While cancelling the bail granted to the respondent, the Supreme Court held as follows: -
BLAPL No. 6212 of 2024 Page 8 of 12
"16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.
17. The quantity of "ganja" recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail rather his antecedents are indicative that he is a regular offender. In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail."
CONCLUSION
13. In view of decision in the case of Tofan Singh (supra), the confession of the petitioner or the co-accused before the police cannot be considered to be an incriminating material against the petitioner. The petitioner has been acquitted in the case in which he faced trial for commission of offence under Section - 20 (b) (ii) (C) of the NDPS Act. But as he has been given the benefit of BLAPL No. 6212 of 2024 Page 9 of 12 doubt and it is not a case of false implication or clean acquittal, I am not satisfied that he will not commit similar offence if he is released on bail. As the twin requirements of Section - 37 of the NDPS Act are not fulfilled, I am not inclined to grant regular bail to the petitioner. His prayer for bail is rejected.
14. In report dated 13.08.2024 and report dated 20.01.2025 of the learned Special Judge, Malkanagiri, it has been stated that in Special G.R. Case No. 91 of 2023 (A), the case record is posted to 11.09.2024 awaiting production of Sukesh and in Special G.R. Case No.91 of 2023, out of twenty chargesheet witnesses, nine witness were examined and ten witnesses remain to be examined.
15. But in view of the fact that the petitioner is in custody for over an year and trial has not started on account of the failure of the police to arrest the co- accused and the decision of the Delhi High Court in the case of Athar Pervez vs State: 2016 SCC OnLine Del 6662 and the Supreme Court in the case of Arvind Kejriwal v. Directorate of Enforcement, (2024) 9 SCC 577 on grant of interim bail , I am inclined to grant interim bail to the petitioner for a period of three months.
16. The petitioner-Sanjay Dhali shall be released on interim bail for a period of three months by the Court below in seisin over the matter in connection with the aforesaid case, on such terms and BLAPL No. 6212 of 2024 Page 10 of 12 conditions as deemed fit and proper, including the following conditions:-
i) He shall furnish cash surety of Rs 20,000/-.
ii) He shall not leave Malkangiri District, without permission of the learned trial Court.
iii) He will furnish his local address and permanent address to the Court, which will be verified through the Police, before the petitioner is released on bail.
iv) He shall furnish his active mobile number to the Court, which shall be verified, before he is released on bail. He shall intimate any change in his mobile number to his counsel immediately, so that it can be intimated to the Court.
v) He shall appear in the trial Court on each date it is fixed for trial.
vi) He shall appear before the Malkangiri Police Station on each Sunday between 10.00 am to 11.00 am .
vii) He shall surrender before the learned trial court on or before 15th May 2025 positively.
17. If the co accused Sukesh Baroi is not arrested within a period of two months, the learned trial court is directed to split up BLAPL No. 6212 of 2024 Page 11 of 12 the trial against the petitioner and proceed with the trial and make an endeavor to complete the same by the end of August 2025.
18. The BLAPL is accordingly disposed of.
19. The petitioner is at liberty to move for bail afresh, if there is undue delay in completion of the trial.
20. Copy of this order shall be sent by Mr. Gyanalok Mohanty, learned Standing Counsel to the IIC, Malkanagiri Police Station for compliance.
21. The IIC, Malkangiri Police Station shall immediately bring to the notice of the learned trial court, if the conditions imposed are violated.
22. No observation in this order should influence the learned trial court during trial, as they have been made for the purpose of consideration of the prayer for bail.
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(Savitri Ratho) Judge Orissa High Court, Cuttack.
The 12th February, 2025.
Puspa, Personal Assistant.
Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 13-Feb-2025 20:28:03 BLAPL No. 6212 of 2024 Page 12 of 12