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2017 DIGILAW 101 (ORI)

Manoj Kumar Bohidar v. State of Orissa

2017-01-24

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Manoj Kumar Bohidar has filed this criminal revision petition challenging the impugned order dated 21.11.2014 passed by the learned Sessions Judge-cum-Special Judge, Bolangir in G.R. Case No. 781 of 2013 in dismissing the petition filed by the petitioner under section 227 of Cr.P.C. for discharge. 2. The prosecution case, in short, is that on 06.12.2013 while Malaya Kumar Panda, Sub-Inspector of Police, Town Police Station, Bolangir along with other police staffs were performing their duty of checking the suspicious motor vehicle on the road near RTO Chowk, Bolangir as per the reliable information for detecting transportation of ganja, they found one Tata Indica Vista Car bearing registration no. OD-02-B-2444 white colour followed by Honda City Gxi Car bearing registration no. OR-15-H-6471 black colour came in high speed from Titilagarh side and though signal was given by the police officials to those two cars to stop but the drivers and occupants did not obey the command or hand signal and sped away towards Bolangir Town. Both the cars were chased by the police officials in their official jeep. The car drivers drove the cars in high speed and they took the road towards Central School side diverting from the main road. The vehicles were followed upto the backside of the Palace field and stopped and while the drivers and the occupants were trying to run away, they were detained. In presence of the Executive Magistrate and other witnesses, when the Honda City Gxi Car bearing registration no. OR-15-H-6471 was searched, thirty numbers of polythene packets containing ganja, each weighing 4 kg. including polythene packets were found inside the dicky of the car and the total weight of ganja came to 120 kg. including polythene packets and after drawing of sample, the total weight came to 115.5 kg. excluding the weight of polythene packets. The petitioner was found in the Tata Indica Vista Car bearing registration No. OD-02-B-2444 along with three others including the driver and from the possession of the petitioner, some mobile phones, identity card and visiting card of the petitioner and cash of Rs.1,910/-were seized in presence of the Executive Magistrate and the witnesses. excluding the weight of polythene packets. The petitioner was found in the Tata Indica Vista Car bearing registration No. OD-02-B-2444 along with three others including the driver and from the possession of the petitioner, some mobile phones, identity card and visiting card of the petitioner and cash of Rs.1,910/-were seized in presence of the Executive Magistrate and the witnesses. Since the accused persons including the petitioner were found in conscious and exclusive possession of contraband ganja and transporting the same and disobeyed the traffic signal given by police officer in uniform, first information report was lodged by Sub-Inspector of Police Malaya Kumar Panda before the Inspector in Charge, Town Police Station, Bolangir and accordingly, Bolangir Town P.S. Case No. 296 of 2013 was registered under section 20(b)(ii)(C) of the N.D.P.S. Act and section 179 of the Motor Vehicles Act. During course of investigation, it was found that the Tata Indica Vista Car bearing registration No.OD-02-B-2444 was owned by the petitioner as per the report of the RTO, Bolangir and the Honda City Gxi Car bearing registration No. OR-15-H-6471 was owned by one Sitaram Majhi as per the report of RTO, Sambalpur. After completion of investigation, finding prima facie case against the petitioner and others, charge sheet was submitted under section 20(b)(ii)(C) of the N.D.P.S. Act and section 179 of the Motor Vehicle Act. 3. The petitioner filed a petition under section 227 of Cr.P.C. before the learned Trial Court for discharge on the ground that no ganja was recovered from the vehicle in which the petitioner was travelling and contraband ganja was found from Honda City Gxi Car and the prosecution has failed to establish any link/nexus between the two vehicles. It was also contended that the owners of both the vehicles are different and there is no material on record to connect the petitioner with the ganja recovered from the other vehicle and therefore, there was no sufficient ground to proceed against the petitioner. The learned Trial Court considering the materials available on record has been pleased to hold that there are sufficient prima facie materials regarding the involvement of the petitioner in the transportation of the seized ganja and accordingly rejected the discharge petition. 4. The learned counsel for the petitioner, Mr. The learned Trial Court considering the materials available on record has been pleased to hold that there are sufficient prima facie materials regarding the involvement of the petitioner in the transportation of the seized ganja and accordingly rejected the discharge petition. 4. The learned counsel for the petitioner, Mr. Anirudha Das contended that the impugned order suffers from non-application of judicial mind and there is no legal material available against the petitioner to connect him in the alleged crime and no incriminating articles having been seized from the exclusive and conscious possession of the petitioner establishing his link with the seizure of contraband ganja from the other car, it was not proper on the part of the learned Trial Court to reject the petition filed by the petitioner for discharge in a casual and routine manner. It is further contended that unless in exercise of the revisional jurisdiction, this Court set aside the impugned order, there would be miscarriage of justice inasmuch as the chance of conviction of the petitioner on the available materials is bleak. Mr. Deepak Kumar, learned Additional Standing Counsel on the other hand while supporting the impugned order placed the statements of the witnesses and contended that the conduct of the occupants and the drivers of the two vehicles at the spot when they were given signal to stop as well as their subsequent conduct in speeding away the vehicles and diverting those vehicles from the main road and trying to escape from the vehicles when they were stopped coupled with the material that the petitioner and others who were the occupants of one car were escorting the other car in which contraband ganja was found clearly makes out the ingredients of the offences under which charge sheet has been submitted and therefore, at this stage it would not be proper to interfere with the impugned order. He further contended that the petitioner will get ample scope and opportunity to lead rebuttal evidence during course of the trial to prove his innocence and therefore, the revision petition should be dismissed. 5. Law is well settled that the truthfulness, sufficiency and acceptability of the materials produced at the time of framing of charge can be done only at the stage of the trial. Even a strong suspicion founded upon materials on record would justify the framing of charges against the accused. 5. Law is well settled that the truthfulness, sufficiency and acceptability of the materials produced at the time of framing of charge can be done only at the stage of the trial. Even a strong suspicion founded upon materials on record would justify the framing of charges against the accused. If the materials brought on record reasonably connect the accused with the crime, no further inquiry has to be conducted at that stage inasmuch as weighing the pros and cons of the case, alleged improbability feature and meticulous examination of the evidence is not required. The defence plea is not to be considered at that stage which can be done only in rare and exceptional cases. 6. Adverting to the contentions raised by the leaned counsels for the respective parties and on perusal of the first information report, statements of the informant, other police officials as well as independent witnesses, it clearly indicates as to how the two vehicles disobeyed the signal of the police officials and sped away towards Bolangir Town. The vehicle in which the petitioner was one of the occupants was moving ahead of the other vehicle which was carrying commercial quantity of ganja in thirty numbers of packets. The two vehicles not only increased their speed when they were asked to stop but when they were chased by the police in the official jeep, both the cars took diversion from the main road and moved towards Central School side and ultimately they were caught. The front vehicle was performing the role of escorting the vehicle in which contraband ganja was found and as an escorting vehicle, the role was to see that the contraband ganja reaches at its destination safely and without any intervention. The front vehicle was performing the role of escorting the vehicle in which contraband ganja was found and as an escorting vehicle, the role was to see that the contraband ganja reaches at its destination safely and without any intervention. Non-stopping of the vehicles in spite of signal, speeding away the vehicles and diverting the vehicles from the main road as well as trying to escape from the vehicles when stopped prima facie indicate guilty mind of the occupants of the vehicles and it presupposes that the occupants of the front car were aware about the transportation of contraband ganja in the other car which was following them and it appears that even though the petitioner and others were the occupants of the front vehicle, they were having complete control over the vehicle in which the contraband articles were found and such vehicle was moving as per their instruction and therefore, it is difficult to believe at this stage that they were not in conscious or exclusive possession of the contraband ganja. ‘Possession’ need not be physical possession but can be constructive, having power and control over the article in question. Constructive possession in law applies to a person having knowledge of an article plus the ability to control such object, even if he has no physical contact with it. Possession is not the same as ownership and there are distinctions between the two. An owner of an object may not always physically possess the object. Even though another person is having actual physical possession of articles but if the accused has the power or control over such articles and the other person having physical possession of the articles is merely acting as per the direction/instruction of the accused and has no independent choice of taking any decision in respect of disposal of such articles then also it can be said that the accused is having possession or control of the articles. Therefore, the term ‘possession’ may have different meanings in different contexts and it need not be actual, physical or personal possession but it includes physical control over the articles in question. When the occupants of the front escorting vehicle are controlling the movement of the following vehicle, its speed and direction, it cannot be said there was no link between them. When the occupants of the front escorting vehicle are controlling the movement of the following vehicle, its speed and direction, it cannot be said there was no link between them. In view of the materials placed on record, I am satisfied that there are sufficient ground to proceed against the petitioner and therefore, the learned Trial Court has not committed any illegality in rejecting the prayer made by the petitioner for discharge. Accordingly, the revision petition being devoid of merits, stands dismissed.