Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 186 (ORI)

Balabhadra Dash v. State Of Orissa

2018-02-12

S.K.SAHOO

body2018
JUDGMENT S K Sahoo, J. - The appellant Balabhadra Dash in CRLA No.29 of 2017, the appellant Narendra Kumar Sahu in CRLA No.32 of 2017 and the appellant Jaga @ Dambarudhar Behera in CRLA No.108 of 2017 have filed Misc. Case No.76 of 2017, Misc. Case No.93 of 2017 and Misc. Case No.288 of 2017 respectively under section 389 of Cr.P.C. seeking for bail pending disposal of the appeals. 2. The appellants faced trial for commission of offence under section 20(b)(ii)(C) of the N.D.P.S. Act pending in the Court of learned Sessions Judge -cum- Judge, Special Court, Deogarh in T.R. Case No.10 of 2013. The learned trial Court vide impugned judgment and order dated 20.12.2016 found the appellants guilty of the offence charged and sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs. 1,00,000/- (rupees one lakh only) each, in default, to undergo rigorous imprisonment for one year each. 3. On the request of the learned counsels for the respective parties, all the three Misc. Cases were heard analogously and disposed of by this common order. 4. Mr. Akshaya Kumar Sahoo, learned counsel appearing for the appellants in CRLA No.29 of 2017 and CRLA No.32 of 2017 contended that the mandatory provision under section 42 of the N.D.P.S. Act has not been complied with. The place of seizure of contraband ganja are discrepant from witness to witness and the person in charge of Malkhana has not been examined in the learned trial Court to prove the safe custody of the contraband ganja before its production in Court and the brass seal which was given in the zima of the Executive Magistrate was not produced before the Court at the time of production of the seized ganja for verification and therefore, on the available materials on record, it cannot be said that the impugned judgment and order of conviction is sustainable in the eye of law. It is further contended by the learned counsel for the appellants that the appellants have good chances of success in the appeals and balance of convenience is in their favour and they are in custody since 07.02.2013 and there is no chance of early hearing of the appeals in the near future and therefore, the bail applications of the appellants-petitioners may be favourably considered. 5. Mr. 5. Mr. Chita Ranjan Nanda, learned counsel appearing for appellant in CRLA No.108 of 2017 contended that the independent witnesses to the 6. Search and seizure have not supported the prosecution case and the version of the official witnesses are discrepant in nature and when from the individual possession of appellant Jaga @ Dambarudhar Behera, 19 Kgs. 500 grams of ganja was seized who was moving separately in one motor cycle which is lesser than commercial quantity and a separate seizure list was prepared, he should not have been convicted under section 20(b)(ii)(C) of the N.D.P.S. Act and bar under section 37 of the N.D.P.S. Act is not applicable for grant of bail and therefore, taking into account the period of detention in judicial custody, the bail application of the appellant-petitioner may be favourably considered. 7. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State on the other hand supported the impugned judgment and placed the statements of the witnesses and submitted that there is no infirmity or illegality in the impugned judgment and in view of the commercial quantity of ganja seized from the joint possession of the appellants, in view of the bar under section 37 of the N.D.P.S. Act, the appellants-petitioners are not entitled to be released on bail. 8. Considering the submissions of learned counsel for the respective parties, it appears that though the seizure lists vide Exts.2 and 3 indicate 9. The place of seizure of the article was on Nalabandha village road which is also deposed to by P.W.12, the informant who was the IIC of Barkote police station and P.W.9, the Executive Magistrate but evidence of P.W.4 Giridhari Sahu who was a constable indicates that the motor cycle with ganja was taken to the police station where the ganja was weighted. Similarly, P.W.6 Bishakha Pradhan who was another constable under Barkote police station though stated about the search and seizure of ganja but he stated that the police parties stayed at the spot from 5.00 a.m. to 7.00 a.m. and then they returned to the police station. Similarly, P.W.6 Bishakha Pradhan who was another constable under Barkote police station though stated about the search and seizure of ganja but he stated that the police parties stayed at the spot from 5.00 a.m. to 7.00 a.m. and then they returned to the police station. It further appears that since the time of search and seizure as per Exts.2 and 3 are 1.30 p.m. and 3.30 p.m. respectively and P.W.9 claims to have arrived at the spot at 10.30 a.m., therefore, in view of the evidence of P.W.4 and P.W.6, even though it is shown in the seizure lists that articles were seized at Nalabandha but the place of seizure appears to be at the police station. It also appears that there was earlier reliable information with P.W.12 regarding transportation of ganja which was reduced into writing in the station diary vide SDE No.165 dated 07.02.2013 and P.W.12 stated that such station diary entry extract along with written information was sent to the Superintendent of Police, Deogarh through Constable Purna Chandra Pradhan 10. (P.W.7) but nobody from the office of the Superintendent of Police, Deogarh has been examined to substantiate that any such information with the station diary entry extract has been received in the office of Superintendent of Police, Deogarh. Admittedly the person who was in charge of Malkhana in Barkote Police Station namely P. Sahu as stated by the Investigating Officer (P.W.15) has not been examined. From the order sheet of the Court below, it appears that when the ganja packets were produced before the Court and samples were drawn, the brass seal which was left in the zima of P.W.9 was not produced before the Court for verification. It appears that the independent witnesses to the search and seizure have not supported the prosecution case and they have been declared hostile by the prosecution. When the evidence of the official witnesses relating to the place of seizure of the contraband articles are discrepant in nature and there is absence of satisfactory evidence to show compliance of mandatory provision under section 42 of the N.D.P.S. Act, the brass seal given in the zima of P.W.9 was not produced before Court at the time of production of the seized ganja, the person in charge of malkhana of Barkote police station has not been examined and the independent witnesses to the search and seizure have not 11. Supported the prosecution case and when from the appellant Jaga @ Dambarudhara Behera, lesser than commercial quantity of ganja has been seized as per a separate seizure list for which the bar under section 37 of the N.D.P.S. Act is not applicable, I find substantial force in the contentions raised by the learned counsel for the appellants that on the available materials on record, it is very difficult to uphold the order of conviction and therefore, taking into account the period of detention of the appellants in judicial custody and absence of any chance of early hearing of the appeals in the near future and also keeping in view the provisions under section 37 of the N.D.P.S. Act, I am inclined to release all the appellants on bail. 12. Let the appellants-petitioners namely Balabhadra Dash in CRLA No.29 of 2017, the appellant Narendra Kumar Sahu in CRLA No.32 of 2017 and the appellant Jaga @ Dambarudhar Behera in CRLA No.108 of 2017 be released on bail pending disposal of the appeals on furnishing personal bond of Rs. 50,000/- (rupees fifty thousand) each with two local solvent sureties each for the like amount to the satisfaction of the learned Trial Court The Misc. Cases are disposed of.