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2018 DIGILAW 121 (ORI)

Asim Kumar Das v. State of Orissa

2018-01-29

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. The petitioners Asim Kumar Das and Kulu Kumbhar have filed this application under section 439 of Cr.P.C. in connection with Dhama P.S. Case No. 50 of 2017 corresponding to T.R. Case No. 31 of 2017 pending in the Court of learned Sessions Judge-cum-Judge, Special Court, Sambalpur for commission of offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’). 2. The prosecution case, in short, is that while the informant Rasmibala Sethi, S.I. of police, Dhama police station along with other police officials were performing duty on 30.03.2017 at about 6.00 a.m. on S.H. 15 near College Chowk, Dhama, they found one car came from Sonepur side towards Sambalpur side in a high speed. When the police party signalled the car to stop, the driver of the car stopped the car but opening the door of the car, he ran away towards the nearby jungle. Though the police staff chased to apprehend the driver but they failed in their attempt. Two persons were found inside the car which was bearing registration no. OR-14-X-0931. Though those two persons also tried to escape but they were detained and they disclosed their names and addresses and they were the petitioners in this bail application. The petitioners disclosed the name of the driver of the car as Rahul Yadav. The vehicle was searched and one white colour plastic gunny bag was found on the backside seat of the car from which smell of ganja was coming out. The petitioners disclosed that the plastic gunny bag was containing ganja and they purchased it from Sonepur from one Gulu Sahu and carrying the same towards Rourkela to sell it in higher price to Shammy Singh who was also the owner of the car in which they were carrying ganja. The petitioners failed to produce any document or authority in support of their possession and transportation of ganja in the car. The informant intimated her superior officers about the detection of ganja and the petitioners were informed by her regarding their option to be searched in person as well as search of the car in presence of the Executive Magistrate or Gazetted Officer but they denied to be searched before any of them. The informant intimated her superior officers about the detection of ganja and the petitioners were informed by her regarding their option to be searched in person as well as search of the car in presence of the Executive Magistrate or Gazetted Officer but they denied to be searched before any of them. The informant called to local witnesses, weighman and after their arrival, the personal search of the petitioners were taken but nothing incriminating were found and when the car was searched in presence of the witnesses, one white colour plastic gunny bag was found containing ganja. The ganja was weighed and it was found to be 22 kgs. Two samples of ganja of 25 grams each was collected and kept separately in paper envelops which were marked as Exts. A-1 and A-2. The bulk ganja packet and the sample packets were sealed with the personal brass seal of the informant in presence of the witnesses. Seizure lists were prepared and copies thereof were given to the petitioners and they put their signatures on the same in token of receipt. The personal brass seal was handed over in the zima of witness Debasis Pattnaik after executing proper zimanama. Since the petitioners were found in exclusive and conscious possession of 22 kgs. of ganja in the car, they were brought to the police station along with the seized ganja packets, car and first information report was lodged before the Inspector in charge of Dhama police station, on the basis of which Dhama P.S. Case No.50 of 2017 was registered on 30.03.2017 for offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act. The petitioners were forwarded to the Court on 31.03.2017 and since then they are in jail custody. 3. Mr. Devashis Panda, learned counsel appearing for the petitioners contended that co-accused persons namely Shammy Singh, Gulu @ Bulu Sahu and Rahul Yadav have been released on bail by this Court in BLAPL No.3413 of 2017, BLAPL No.7408 of 2017 and BLAPL No.4960 of 2017 respectively. It is further contended by the learned counsel for the petitioners that the investigation is perfunctory and since P.S. Case numbers find place in the seizure lists which were stated to have been prepared at the spot, it creates doubt regarding the timing and place of its preparation rather it indicates that the seizure lists were concocted. It is further contended by the learned counsel for the petitioners that the investigation is perfunctory and since P.S. Case numbers find place in the seizure lists which were stated to have been prepared at the spot, it creates doubt regarding the timing and place of its preparation rather it indicates that the seizure lists were concocted. It is further contended that the witnesses are not consistent regarding seizure and preparation of homogenous mixture of ganja found from the plastic bag was not proper and justified. It is further contended that the mandatory provision under section 50 of the N.D.P.S. Act has not been complied with and therefore, the bail application of the petitioners may be favourably considered. 4. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State on the other hand opposed the prayer for bail and contended that the petitioners stand in a different footing than the co-accused persons who have been enlarged on bail. It is further contended that all the necessary formalities before search and seizure have been complied with and since commercial quantity of ganja has been seized, in view of the bar under section 37 of the N.D.P.S. Act, the petitioners are not entitled to be released on bail. 5. Adverting to the contentions raised by the learned counsels for the respective parties, it appears that prima facie materials are available on record to show that 22 kgs. of ganja was found in the plastic gunny bag seized from the back seat of the red colour Chevrolet Beat Car bearing registration No. OR- 14-X-0931 which is of commercial quantity and the petitioners were found in the car and therefore, before granting bail on merits for offence under section 20(b)(ii)(C) of the N.D.P.S. Act, the limitation on granting bail specified in clause (b) sub-section (1) of section 37 of the N.D.P.S. Act are required to be considered. 6. On perusal of the case records, it prima facie appears that the petitioners were present in the car when it was stopped. It further appears that even though the driver of the car escaped but the petitioners were detained while they were trying to escape from the car. The witnesses have stated how the option was given to the accused persons before search and seizure and how the vehicle was searched and ganja packet was seized from the car. It further appears that even though the driver of the car escaped but the petitioners were detained while they were trying to escape from the car. The witnesses have stated how the option was given to the accused persons before search and seizure and how the vehicle was searched and ganja packet was seized from the car. Though non-compliance of section 50 of the N.D.P.S. Act was highlighted but whether in the facts and circumstances of the case, such compliance are necessary or not and if so, whether materials available on record indicate such compliance are to be adjudicated by the learned trial Court at the appropriate stage of trial. It would not be proper to give any finding in that respect at this stage. Any finding regarding compliance or non-compliance of the mandatory provisions of the N.D.P.S. Act at the stage of bail is to be avoided as it requires complete analysis of oral and documentary evidence which can be better appreciated by the trial Court at the appropriate stage. However, on perusal of the case records, it indicates that the documents relating to the unwillingness of the petitioners to be searched in presence of Executive Magistrate or Gazetted Officer are available on record in which the signatures of the petitioners are also appearing. Therefore, the contention of the learned counsel for the petitioners in that respect is not acceptable. 7. Though the seizure list relating to ganja packet and sample packets and other articles indicates that it was prepared in connection with Dhama P.S. S.D.E. No. 632 dated 30.03.2017 but the P.S. Case number and date also find place on the top of the seizure list. The F.I.R. reveals that as per the direction of the IIC of Dhama police station vide command certificate no.1383720 dated 30.03.2017 and S.D.E. No.632 dated 30.03.2017, the informant and other police officials performed blocking duty on S.H.15 near College Chowk, Dhama on the date of occurrence. Therefore, there is no irregularity in the mention of S.D.E. number in the seizure list. However, it is apparent on the materials available on record that at the time of preparation of the seizure lists at the spot, the F.I.R. has not been registered and it was registered only after the arrival of the informant along with the seized articles and the petitioners at the police station. However, it is apparent on the materials available on record that at the time of preparation of the seizure lists at the spot, the F.I.R. has not been registered and it was registered only after the arrival of the informant along with the seized articles and the petitioners at the police station. It prima facie appears that after the registration of the P.S. Case, the same has been reflected on the top of some of the seizure lists which were already prepared containing the S.D.E. numbers. This aspect has to be confronted to the informant who prepared the seizure lists during trial and she may give the explanation as to under what circumstances the P.S. Case number found mention in the seizure lists. When that stage has not reached, it would not be proper to hold that the investigation is perfunctory and the seizure lists were concocted to falsely entangle the petitioners in the case. 8. Even though some of the co-accused persons have been granted bail but it prima facie appears that they stand in a different footing. They were not found in the car with seized ganja like the petitioners and they were implicated basing on the confessional statements of the petitioners before police. Law is well settled that parity cannot be sole ground for grant of bail but it is one of the grounds for consideration of question of bail. The grant of bail is not a mechanical act. In the factual scenario, the claim of parity is not acceptable. 9. 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 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 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. 10. Therefore, when 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 and when prima facie material available on record to show that the petitioners were carrying commercial quantity of ganja in the car and culpable mental state can be prima facie presumed under section 35 of the N.D.P.S. Act, in view of the nature and gravity of the accusation against the petitioners and taking into account the punishment prescribed for such offence, I am not inclined to release the petitioners on bail. 11. 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 shall come on record after it is led de hors any finding recorded in this order. 12. Accordingly, the BLAPL stands dismissed.