Orissa High Court
Deepak Parida And vs State Of Odisha ....... Opp. Party on 25 March, 2019
Equivalent citations: AIRONLINE 2019 ORI 50
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 1317 Of 2019
An application under section 439 of the Code of Criminal
Procedure in connection with Sahidnagar P.S. Case No.329 of
2018 corresponding to T.R. Case No.245/1711 of 2018 pending
on the file of learned Addl. Sessions Judge -cum- Special Judge,
Bhubaneswar.
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Deepak Parida and
another ........ Petitioners
-Versus-
State of Odisha ....... Opp. Party
BLAPL NO. 1409 Of 2019
Tripati Mohanty ........ Petitioner
-Versus-
State of Odisha ....... Opp. Party
For Petitioners: - Mr. Devashis Panda
For Opp. party: - Mr. Arupananda Das
Addl. Govt. Advocate
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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: 19.03.2019 Date of Order: 25.03.2019
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S. K. SAHOO, J. The petitioners Deepak Parida and Padma Charan
Pradhan in BLAPL No.1317 of 2019 and the petitioner Tripati
Mohanty in BLAPL No.1409 of 2019 have approached this Court
under section 439 of Cr.P.C. for bail in connection with
Sahidnagar P.S. Case No.329 of 2018 corresponding to T.R. Case
No.245/1711 of 2018 for offence punishable under section
20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereafter 'N.D.P.S. Act') pending on the file of learned
Addl. Sessions Judge -cum- Special Judge, Bhubaneswar. Their
bail application was rejected by the learned Sessions Judge in
Charge, Khurda at Bhubaneswar as per order dated 14.12.2018.
Since both the bail applications arise out of a
common order, with the consent of the parties, those were heard
analogously and disposed of by this common order.
2. On 20.07.2018 at 3.40 p.m. Inspector Padmanav
Pradhan of Saheed Nagar police station sent a written report
through constable D. Chatar indicating therein that on that day
at about 05.55 a.m., he received information from reliable
sources that a white car bearing registration no.OD-07-D-1443
loaded with contraband ganja was proceeding towards
Bhubaneswar side on NH 16 from Balugaon side. On receipt of
such information, the Inspector entered the facts in the station
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diary vide SDE No.30 dated 20.07.2018 and proceeded towards
Akhandalamani Basti with other police officials to verify the
veracity of the information and on reaching there, they all
waited. At about 8.30 a.m. a white coloured Chevrolet car
bearing registration no.OD-07-D-1443 came from Jaydev Vihar
side and the vehicle was signalled to stop. When it stopped, five
persons including a woman were found sitting inside the car. The
petitioners were in the car and all the occupants disclosed their
names and addresses. Two bags were found in the backside of
the vehicle emitting smell of ganja. Independent witnesses were
called to the spot and in their presence, accused Pabitra Khatei
who was the owner -cum- driver of the vehicle disclosed that he
had procured cannabis from Kodala and was proceeding towards
Bhubaneswar Railway Station to hand it over to a person waiting
there. Option was given to the accused persons regarding search
in compliance of the provision under section 50 of the N.D.P.S.
Act and the accused persons desired to be searched in presence
of an Executive Magistrate. The Inspector deputed a constable
with a requisition addressed to DCP, Bhubaneswar to depute an
Executive Magistrate to remain present at the time of search and
seizure. The vehicle was guarded and after about one hour, the
Executive Magistrate arrived at the spot and gave his identity to
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the occupants of the vehicle. A weighing scale was called for. The
Executive Magistrate as well as other officials including the
independent witnesses gave their personal search and thereafter
personal search of the occupants of the vehicle was taken and
the two bags emitting smell of ganja were opened and total
quantity of 62.6 kgs. ganja was found in it on weighment.
Samples were collected and sealed, seizure lists were prepared
after observing all the procedural formalities under the N.D.P.S.
Act and since the accused persons failed to produce any
authority for possessing such ganja, they were arrested and
forwarded to the Court.
On receipt of the written report, Saheed Nagar P.S.
Case No.329 of 2018 was registered under section 20(b)(ii)(C) of
the N.D.P.S. Act and Sri G.K. Jena, S.I. of police of Saheed
Nagar police station was directed to take up investigation of the
case. In course of investigation, the investigating officer visited
the spot, examined the informant and other witnesses, arrested
the accused persons including the petitioners and forwarded
them to the Court. He sent the exhibits to S.F.S.L., Rasulgarh for
chemical analysis and deposited the seized sample Ganja in the
Court Malkhana and bulk ganja in the police station Malkhana.
He prepared a spot map. On completion of investigation, as
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sufficient evidence under section 20(b)(ii)(C) of the N.D.P.S. Act
was found against the accused persons, charge sheet was
submitted on 16.11.2018.
3. Mr. Devashis Panda, learned counsel for the
petitioners contended that the petitioners are in judicial custody
since 21.07.2018 and co-accused Arati Khatei has been released
on bail by this Court in BLAPL No.146 of 2019 as per order dated
01.02.2019 and the petitioners stand on the similar footing. He
submitted that the petitioners belong to different area of Ganjam
district and they had just taken lift in the vehicle in question
without any knowledge of gunny bags loaded with contraband
ganja in it. He further argued that in the first information report,
it is mentioned that the driver -cum- owner of the vehicle
namely, Pabitra Khatei disclosed that he procured cannabis from
Kodala and proceeding towards Bhubaneswar Railway Station to
hand it over to a person who was waiting there and therefore, it
is apparent that the other occupants of the vehicle have no role
in the transportation of the ganja in it and they were mere
passengers and therefore, the petitioners should be enlarged on
bail.
Mr. Arupananda Das, learned Additional Government
Advocate on the other hand opposed the prayer for bail and
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submitted that since the petitioners were the occupants of the
vehicle in which commercial quantity of contraband ganja was
being transported and the statements of witnesses clearly
indicate that all the occupants were aware about such
transportation and they were consciously taking the gunny bags
towards railway station, in view of the bar under section 37 of
the N.D.P.S. Act, they are not entitled to be released on bail.
4. Adverting to the contentions raised by the learned
counsel for the respective parties, even though in the first part of
the first information report, the disclosure made by co-accused
Pabitra Khatei finds place but in the later part, it is clearly
mentioned that after the Executive Magistrate arrived on the
scene of detection, gave his identity, on his confrontation, all the
occupants of the vehicle confessed that they were proceeding to
Bhubaneswar Railway Station to hand over the contraband ganja
bags brought from Kodala to a person waiting there. All the
witnesses who were present at the scene of detection have also
stated about such confession. Therefore, on the basis of the
available material on record, it is difficult to accept at this stage
that the petitioners were merely passengers and they had no
knowledge regarding transportation of ganja in the car in which
they were moving together. All the three petitioners belong to
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Ganjam District. If any such defence plea that they were mere
passengers in the offending vehicle is taken during trial by the
petitioners and evidence is adduced in that respect, the learned
trial Court shall duly consider the same and decide as to whether
the petitioners were in possession of the contraband ganja while
moving together in the vehicle or they were mere passengers
without having any knowledge about such transportation. At the
stage of consideration of the bail application, if any finding
regarding on the defence plea of the accused is given, it is likely
to cause serious prejudice to either of the parties during trial.
5. Even though one of the co-accused namely, Arati
Khatei has been released on bail by this Court in BLAPL No.146
of 2019 as per order dated 01.02.2019 but with due respect, I
find that there is no consideration of the provision under section
37 of the N.D.P.S. Act.
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. Once the Public Prosecutor
opposes the application for bail to a person accused of the
enumerated offences under section 37 of the N.D.P.S. Act, in
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case, the Court proposes to grant bail to such a person, two
mandatory conditions are required to be satisfied in addition to
the normal requirements under the provisions of the Cr.P.C. or
any other enactment. The Court must be satisfied that there are
reasonable grounds for believing that the person is not guilty of
such offence and that he is not likely to commit any offence
while on bail. The satisfaction of the Court about the existence of
the said twin conditions is for a limited purpose and is confined
to the question of releasing the accused on bail. The expression
"reasonable grounds" used in section 37(1)(b)(ii) of the N.D.P.S.
Act connotes substantial probable causes 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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Law is well settled that parity cannot be the sole
ground for grant of bail but it is one of the grounds for
consideration of question of bail. 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 has been
passed in flagrant violation of well settled principle of law and
the Judge ignores to take into consideration the relevant facts
essential for granting bail. Such an order can never form the
basis of claim of parity. It will be open to the Judge to reject
the bail application of the applicant before him as no Judge is
obliged to pass orders against his conscience merely to maintain
consistency.
In case of Union of India -Vrs.- Rattan Mallik @
Habul reported in (2009) 42 Orissa Criminal Reports (SC)
697 where Union of India filed an appeal before the Supreme
Court challenging the order of the Allahabad High Court in
suspending the sentence awarded by the trial Court to the
respondent/accused for having committed offences under
sections 8/27-A and 8/29 of the N.D.P.S. Act and granting bail,
considering the limitation imposed in sub-clause (b) of sub-
section (1) of section 37 of the N.D.P.S. Act, it was held that
merely because, according to the learned Judge, nothing was
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found from the possession of the respondent, it could not be said
at this stage that the respondent was not guilty of the offences
for which he had been charged and convicted. It was further held
that it seems that the provisions of the N.D.P.S. Act and more
particularly section 37 of the N.D.P.S. Act were not brought to
the notice of the learned Judge. It was further held that the
order passed by the High Court clearly violates the mandatory
requirements of section 37 of the N.D.P.S. Act. The bail order
was set aside with a liberty to decide afresh in the light of the
limitation imposed.
Therefore, when the mandatory provision under
section 37 of the N.D.P.S. Act has not been considered while
granting bail to the co-accused, I am of the humble view that
such an order of granting bail cannot form the basis of claim of
parity.
6. The learned counsel for the petitioners has failed to
satisfy on the basis of the factual position to conclude that the
restriction under section 37 of the N.D.P.S. Act are fulfilled to
warrant grant of bail to the petitioners. When prima facie
materials available on record indicate that the petitioners along
with others were carrying commercial quantity of ganja in the
car and culpable mental state can be prima facie presumed
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under section 35 of the N.D.P.S. Act, in view of the nature and
gravity of the accusation against the petitioners and the
punishment prescribed for such offence, I am not inclined to
release the petitioners on bail.
The observation made while disposing of this bail
application relates to the materials collected during course of
investigation and the findings recorded herein are for the
purpose of adjudication of this bail application only. This may not
be taken as an expression of opinion on the merits of the case.
The learned trial Court would be at liberty to decide the matter in
the light of evidence which would be adduced during trial de hors
any finding recorded in this order.
Accordingly, the bail applications being devoid of
merits, stand dismissed.
...............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 25th March 2019/Sisir