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2015 DIGILAW 603 (ORI)

Abhaya Parichha v. State of Orissa

2015-10-26

S.K.SAHOO

body2015
JUDGMENT S. K. SAHOO, J. - The petitioner Abhaya Parichha has filed this application under Section 439 Cr.P.C. for bail as his prayer for bail was turned down by the learned Addl. Sessions Judge -cum- Special Judge, Paralakhemundi in G.R. Case No. 27 of 2014 (A) vide order dated 08.04.2015. 2. On 19.07.2014 one Prabhansu Sekher Mishra, Sub- Inspector of Police, Adava Police Station lodged the First Information Report before the Inspector-in-Charge, Adava Police Station, District-Gajapati stating therein that on 19.04.2014 as per the direction of the Inspector-in-Charge, Adava Police Station, the informant along with other police staffs proceeded towards village Chudangapur to verify the authenticity of the information regarding transportation of contraband ganja. At about 8.30 a.m. the raiding party members noticed one Mahindra Max Pick Up Van bearing Registration No. OR-07-N-0849 was coming from village Chudangapur and moving towards Antarba side. Out of suspicion, they stopped the vehicle and found two persons inside the vehicle and there were four jerry bags from which acute smell of contraband ganja was coming out. The driver of the Van disclosed his name as Ramesh Raita and the other person disclosed his name as Pradeep Bira. On being interrogated by the police officials, accused Pradeep Bira disclosed that as per the direction of the petitioner, he procured ganja from the locality and packed the same in four jerry bags and transporting it to Chandiput to the house of the petitioner for commercial purpose. As the persons present in the Van failed to produce any authority regarding transportation of contraband ganja, observing all the formalities, the contraband ganja from inside the jerry bags were weighed by weighman in presence of two independent witnesses and S.D.P.O., R. Udayagiri and it was found in total to be 102 kg. 600 grams. Samples of ganja were drawn from each of the packets and the rest ganja were packed and sealed by the informant by using personal brass seal and keeping paper slips with signatures of witnesses and accused persons. As commercial quantity of ganja was found from the exclusive and conscious possession of co-accused Pradeep Bira and Ramesh Raika, FIR was registered against three persons namely Pradeep Bira and Ramesh Raika, who were found in the vehicle so also against the petitioner under Sections 20(b)(ii)(C) /25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter for short “N.D.P.S. Act”). 3. 3. The Inspector-in-charge of Adava Police Station entrusted Mukesh Lakra, S.I. of Police to investigate the case. During course of investigation, the witnesses were examined, the seized exhibits were sent to Deputy Director, RFSL, Berhampur for chemical analysis. The chemical examination report indicated that the exhibits were found to contain fruiting and flowering tops of cannabis plant i.e. ganja. Though the Investigating Officer conducted several raids in the house of the petitioner to arrest him but he was not traced out and ultimately prayer was made before the learned Sessions Judge -cum- Special Judge, Paralakhemundi to issue non-bailable warrant of arrest against the petitioner. Superintendent of Police, Gajapati supervised the case and as prima facie evidence was found against the petitioner and two co-accused persons, charge sheet was placed against them on 30.09.2014 under Section 20(b)(ii)(C) /25/29 of N.D.P.S. Act. 4.The learned counsel for the petitioner Mr. Mohit Agarwal strenuously contended that there is no other material against the petitioner except the confessional statement of one of the co-accused before police which has no got no evidentiary value in the eye of law. He further contended that even though during course of investigation, on a number of occasions raids were conducted in the house of the petitioner but nothing incriminating was found from his house. The learned counsel further urged that the statement of co-accused Pradeep Bira that ganja was procured from the locality as per the direction of the petitioner and that they were transporting the same to the house of the petitioner for commercial purpose is not supported either by oral evidence or by documentary evidence. Not a single person has stated that the petitioner was dealing with contraband ganja and therefore it would not be proper to detain the petitioner further in judicial custody on the basis of inadmissible evidence in absence of any link of the petitioner with the ganja seized. The learned counsel for the petitioner further contended that the petitioner is in custody since 07.04.2015 and on the basis of available materials on record, there are no reasonable grounds for believing that the petitioner is guilty of the offences under which charge sheet has been submitted and there are no criminal antecedents against him and as such it cannot be assumed that the petitioner is likely to commit any offence while on bail. He further urged that as there is no chance of absconding of the petitioner or tampering with the evidence, taking into account the period the detention of the petitioner in judicial custody, the bail application may be favourably considered. 5. The learned counsel for the State Mr. Prem Kumar Patnaik, Addl. Government Advocate on the other hand contended that for the purpose of bail, confessional statement of the co-accused persons can be taken note of. He further submitted that the Investigating Officer was unsuccessful in arresting the petitioner during course of investigation in spite of several raids in his house as the petitioner kept on changing his position to avoid police arrest for which charge sheet was submitted showing him as an absconder and ultimately on the prayer of the investigation officer, non-bailable warrant of arrest was issued by the learned Sessions Judge-cum- Special Judge, Paralakhamundi. Learned counsel further contended that the petitioner is the kingpin and mastermind behind the crime in question and he had utilized the services of the two co-accused persons who were arrested carrying ganja in the Pick Up Van. He further contended that since commercial quantity of ganja has been seized, Section 37 of the NDPS Act is a bar for grant of bail and therefore the petitioner does not deserve to be released on bail. 6. Considering the rival submissions raised at the Bar, it is prima facie apparent that on 19.07.2014 nearer to Chudangapur Gram Panchayat office, commercial quantity of ganja was seized from one Mahindra Max Pick Up Van bearing Registration No. OR-07-N-0849 and co-accused persons Ramesh Raita and Pradeep Bira were found present inside the vehicle. It also prima facie appars from the statements of the raiding party members as well as witnesses that out of the two co-accused persons, accused Pradeep Bira stated before police officers that he had procured ganja from the locality as per the direction of the petitioner and that they were carrying the same to the house of the petitioner. It also appears that the petitioner was not found in his house in spite of several raids by police officials for which charge sheet was submitted showing him as an absconder. 7. It also appears that the petitioner was not found in his house in spite of several raids by police officials for which charge sheet was submitted showing him as an absconder. 7. Adverting to the materials on record, it is apparent that except the confessional statement of co-accused Pradeep Bira before police officers that he procured ganja on the direction of the petitioner and was transporting the same to the house of the petitioner and that the petitioner was found absent from his house when raids were conducted by police, there is no other clinching material against the petitioner. 8. N.D.P.S. Act is a complete Code relating to narcotic substances and dealing with the offences and the procedure to be followed for the detection of the offence as well as for the prosecution and the punishment of the accused. The provisions are purely penal in nature which can, in certain cases, deprive a person of his liberty for a period which can extend to ten years, twenty years and even death sentence under certain circumstances. The provisions therefore have to be strictly construed and safeguards provided therein have to be scrupulously and honestly followed. In the present case, the informant is a police officer who has mentioned about the confessional statement of coaccused Pradeep Bira in the F.I.R. implicating the petitioner in the crime. The witnesses who are mostly police officials and members of raiding party have also stated about such confessional statement of co-accused. The confessional statement has not been taken down in writing in verbatim. The object of Section 25 of the Evidence Act, wherein it is mentioned that no confession made to a police officer, shall be proved as against a person accused of any offence, is that the officer would make every effort to collect the evidence of the commission of the crime and from the power he possesses, he has the capacity to influence, pressurise or subject the person to coercion to extract confession. A confessional statement made by a person whilst he is in custody of a police officer shall not be proved as against him unless it is made in the immediate presence of a Magistrate in view of Section 26 of the Evidence Act. In the present case, no Magistrate was present when the co-accused Pradeep Bira was stated to have made the confessional statement before the police officers. In the present case, no Magistrate was present when the co-accused Pradeep Bira was stated to have made the confessional statement before the police officers. Confession of a co-accused does not come within the definition of “evidence” as contained in Section 3 of the Evidence Act. It cannot be treated as substantive evidence. Law is well settled that the Court cannot start with confession of a coaccused person. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. In case of Raj Kumar Karwal –v- Union of India reported in AIR 1991 SC 45 , questions were raised as to whether the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer-incharge of a police station under Section 53 of N.D.P.S. Act are “police officers” within the meaning of Section 53 of the Evidence Act and if the answer is “yes”, whether the confessional statement recorded by such officer in course of investigation of a person accused of an offence under the said Act, is admissible in evidence as against him? The Hon’ble Court held as follows:- “19. …………These provisions found in Chapter V of the Act show that there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer-incharge of a police station under Section 53, for the purpose of investigation of offences under the Act. x x xx 21. For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. x x xx 21. For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefor, provides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code.………….Any person on whom to investigate under chapter XII is conferred can be said to be a ‘police officer’, no matter by what name he is called.The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant ( AIR 1966 SC 1746 ) accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ‘police officer’ under Section 25 of Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code……… We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise ‘all’ the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code.” In case of Kanhaiyalal –v- Union of India reported in AIR 2008 SC 1044 , where a question was raised whether a statement made by accused on being summoned before the Investigating Officer appointed by Narcotic Superintendent taken under Section 67 of the NDPS Act can be treated as a confessional statement and whether the accused could be convicted on the basis thereof in the absence of any other corroborative evidence, it was held as follows:- “36. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002 and TADA Act, 1987, are much more stringent and excludes from its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made there under. At that stage the person concerned is not an accused although he may be said to be in custody. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him, he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. Of course, this Court has also held in Pon Adithan’s case(supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence. 37. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava’s case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and Ors. 1991 CriLJ 97 , this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not ‘police officers’ within the meaning of Section 25 of the Evidence Act. 1991 CriLJ 97 , this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not ‘police officers’ within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view. 38. Considering the provisions of Section 67 of the NDPS Act and the view expressed by this Court in RaJ Kumar Karwal’s case ( AIR 1991 SC 45 ), with which we agree, that an officer vested with the powers of an Officer-in-charge of a police station under Section 53 of the above Act is not a “police officer” within the meaning of Section 25 of the Evidence Act. It is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Section 24 to 27 of the Evidence Act.” In case of Tofan Singh –v- State of Tamil Nadu reported in 2013 (12) SCALE 552, doubting the correctness of the dicta in Kanhaiyalal case (supra), the matter was referred to a larger Bench for re-consideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not and whether the statement recorded by the Investigating Officer under Section 67 of the NDPS Act can be treated as confessional statement or not, even if the Officer is not treated as Police Officer. 9. 9. Now, embarking upon the case material to determine the complicity of the petitioner in the crime and keeping in view the bar provided under Section 37 of N.D.P.S. Act, it appears that the only material available against the petitioner is the confessional statement of one of the co-accused namely Pradeep Bira before police. The confessional statement has not been recorded into writing. There is no corroborating material to lend support to such confession against the petitioner. No incriminating materials were found in spite of several raids of the house of the petitioner. No witness has stated about the petitioner dealing with ganja business. On perusal of the materials on record, I am prima facie satisfied that there are no reasonable grounds for believing that the petitioner is guilty of the offences under which charge sheet has been submitted. Keeping in view the other requirement under Section 37(1)(b)(ii) of N.D.P.S. Act, that the Court is to be satisfied while granting bail that the accused is not likely to commit any offence while on bail, such requirement can be fulfilled in a hypothetical manner keeping in view the past conduct of the accused if there is no allegation of involvement in any previous offence. The learned counsel for the State on instruction submitted on 14.9.2014 that there is no criminal antecedent against the petitioner in Adava police station. No other material was produced by the learned counsel for the State regarding criminal antecedent of the petitioner in any other police station. In absence of any definite material about the past involvement, for the purpose of bail in this case, I proceed on the assumption that the petitioner if released on bail is not likely to commit an offence while on bail. The witnesses are mainly police officials and case is also based on documentary evidence and therefore there is no chance of tampering with the evidence. In absence of any prima facie materials on record regarding the involvement of the petitioner in the crime in question and also in absence of any criminal antecedent against the petitioner, it would not be just and proper to deny bail to the petitioner only on the ground that the petitioner was found absent from his house when raids were conducted and that nonbailable warrant of arrest was issued against him on the prayer of the Investigating Officer. 10. 10. Without detailed examination of evidence and elaborate discussion on merit of the case but considering the nature of accusation and absence of prima facie materials against the petitioner regarding his involvement in the commission of offences and also taking into account his period of detention in judicial custody, I am of the view that it would be proper to release the petitioner on bail. Accordingly, the prayer for bail of the petitioner is allowed. Let the petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.2,00,000/-(two lakhs) with two local sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions as the learned Court may deem just and proper. Accordingly, the BLAPL is disposed of. Urgent certified copy of this order be granted on proper application. BLAPL disposed of.