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Orissa High Court · body

2017 DIGILAW 878 (ORI)

Bhagaban Khilla v. State of Odisha

2017-08-11

S.PUJAHARI

body2017
ORDER BLAPL No.4327 of 2017 11.08.2017 Heard the learned counsel for the petitioner and the learned counsel for the State. The petitioner being in custody in T.R. Case No.18 of 2017, arising out of Boriguma P.S. Case No.60 of 2017, pending in the court of learned Sessions Judge-Cum-Special Judge, Koraput, has filed this petition for his release on bail. The offence alleged against the petitioner is punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act. Allegation of the prosecution is that one Dastagir Khan along with his Helper Bachu Yadab while taking some goods i.e. the broken glasses in their truck from Jagatsinghpur to Firodabad on the way at Kolab Chhak in the district of Koraput they being requested by a person to transport the seven number of Ganja bags for Nawarangpur for alluring freight loaded the same in the vehicle and proceeded. At that time, one Hero Honda Motor Cycle was running ahead their vehicle and also a Car and an Auto Rikshaw were following them. However, near Mariamarg Sahi, Boriguma the police officials apprehended the vehicle and seizure of Ganja was made from the vehicle, in spite of the driver of the truck stating that the entire Ganja was seized from him. It appears that the police in the seizure list, however, have shown five bags of Ganja from the said vehicle, one bag of Ganja weighing 22 kgs 500 gms and one bag of Ganja weighing 18 kgs. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case which can be visualized from the fact that the driver of the truck though stated that a Car and an Auto Rikshaw were following their vehicle, but no whisper was made that any Ganja was loaded in the said Car and the Auto Rikshaw or the someone was escorting the same. Further, though the driver of the truck stated that seven bags of Ganja were carrying in the truck, but five bags of Ganja were seized from his vehicle and one bag of Ganja was shown to have been seized from the car of the petitioner and other one bag of Ganja from the Auto Rikshaw. Considering the aforesaid facts, this Court has already released the driver of the Auto Rikshaw, as it was found that the same has no nexus in carrying the Ganja. Considering the aforesaid facts, this Court has already released the driver of the Auto Rikshaw, as it was found that the same has no nexus in carrying the Ganja. Therefore, he submits that notwithstanding the prohibition under Section 37 of the N.D.P.S. Act, the petitioner deserves to be released on bail. Learned counsel for the State, however, submits that since the seizure of more than commercial quantity of Ganja has already shown to be made from the vehicle of the petitioner and the Court at this stage of consideration of bail is not required to make a detailed documentation and appreciation of evidence on record, the petitioner does not deserve to be released on bail, in view of limitation to grant bail under Section 37(1)(b) of the N.D.P.S. Act. There is no reproach that the Court at the stage of consideration of prayer for bail is not required to make a detailed documentation and appreciation of evidence on record but it goes without saying that nature and character of the evidence as well as the role stated to have been played by an accused seeking bail, in commission of the offence has significant bearing in consideration of his prayer for bail under Section 433/ 439 of the Cr.P.C. Keeping in mind the aforesaid, the case in hand is required to be addressed. It is all along the case of prosecution that seven bags of Ganja were being transported in the truck by the driver and one Hero Honda Motor Cycle was running ahead and a Car and an Auto Rikshaw were following the said truck, as gathered from the learned counsel for the State. No material is there to indicate that the aforesaid were escorting or the Ganja was loaded in the same by them or the persons there in the aforesaid vehicles were the owners of the Ganja. However, seizure list shows that five bags of Ganja were seized from the truck, one bag of Ganja was seized from the vehicle of the petitioner and another bag of Ganja was seized from the Auto Rikshaw. In spite of the same, all are framed in one case. The same prima facie speaks volume about the conduct of the investigating officer and the investigation. In spite of the same, all are framed in one case. The same prima facie speaks volume about the conduct of the investigating officer and the investigation. In such premises, when no material is produced indicating the fact that the petitioner shall abscond and or tamper with the prosecution evidence, if released on bail, the petitioner has made out a case for release on bail under the Code of Criminal Procedure. So far as the limitation under Section 37(1)(b) of the N.D.P.S. Act is concerned, looking into the materials on record as placed by the prosecution, this Court is of the view that there are reasonable grounds to believe that the petitioner is not guilty of such offence alleged. So also the petitioner having no criminal antecedent, he is not likely to commit any such offence, if released on bail. I would, therefore, allow the prayer made by the petitioner for his release on bail and direct the court in seisin over the matter to release him on bail in the aforesaid case on such terms and conditions as the trial court may deem it just and proper. But, while parting with the case, looking into the materials on record, this Court directs the investigation to be taken up by the Crime Branch, Odisha and as such the case be transferred to the Crime Branch, Odisha by the P.S. concerned and if charge-sheet in this case has already been filed, the Crime Branch, Odisha shall also take up further investigation under Section 173(8) of the Cr.P.C. and place the materials before the court in seisin over the matter. With the aforesaid order, this BLAPL stands disposed of being allowed. Copy of this order be communicated to the D.G., Crime Branch, Odisha, D.G. of Police, Odisha and S.P., Koraput forthwith for their information and necessary action. Urgent certified copy of this order be granted on proper application. A free copy of this order be handed over to the learned counsel for the State. BLAPL disposed of.