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2018 DIGILAW 85 (ORI)

Raju Kumar Kushwa v. State of Orissa

2018-01-16

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. 1. The petitioner Raju Kumar Kushwa has filed this application under section 439 of Cr.P.C. in connection with Nayagarh P.S. Case No. 203 of 2016 corresponding to T.R. Case No. 23 of 2017 pending in the Court of learned Special Judge-cum-Sessions Judge, Nayagarh. 2. The prosecution case, in short, is that on 19.11.2016 at about 8.00 p.m., the Inspector in Charge of Nayagarh police station received reliable information regarding transportation of ganja in a Tata Indigo white car bearing Regd. No. OR 10H 9401 from Phulbani side towards Bhubaneswar. The Inspector in charge mentioned the fact in the station diary vide SDE No.17 dated 19.11.2016 and since he was of the opinion that it would take time to obtain search warrant from the competent Court which would facilitate the accused persons to escape with ganja, it was thought proper to conduct the raid without obtaining the search warrant. Accordingly, the informant Dillip Kumar Sahoo, S.I. of police, Nayagarh police station along with other police officials left the police station to conduct the raid and they waited near new bus stand, Nayagarh. At about 5.00 a.m. on 20.11.2016, a Tata Indigo Car bearing registration No.OR 10H 9401 was found coming from Daspalla side in a high speed. The police officials gave signal to the driver of the car to stop the vehicle but the driver did not obey the signal and it speedily rushed towards Nayagarh side. The police officials chased the car and able to detain the same near Telephone Bhawan, Nayagarh on NH 57. Four persons were found inside the car and they disclosed their names and addresses. One of them was the petitioner. It is the further prosecution case that two independent witnesses of the locality were called to the spot to remain present at the time of search and seizure. Option in writing was given to the accused persons for search in presence of the Magistrate or Gazetted Officer in compliance of section 50 of the N.D.P.S. Act and the accused persons opted to be searched in presence of the Magistrate and gave their option in writing. Requisition was sent to Sub-collector, Nayagarh to arrive at the spot to attend the search and seizure. Requisition was sent to Sub-collector, Nayagarh to arrive at the spot to attend the search and seizure. After the arrival of the Executive Magistrate at about 11.00 p.m., due to traffic problem the car was shifted to Nayagarh police station where in presence of the Executive Magistrate and other police officials, personal search of the raiding party was given and thereafter, personal search of the accused persons were taken and from the possession of the petitioner, cash of Rs.6,600/-, nokia mobile handset with two SIMs were found and from the possession of other accused persons also, seizures were made. Thereafter the dicky of the car was opened and three air bags were found in it having strong smell of ganja and after opening those bags, it was found that all the bags were packed with small packets of ganja packed in polythene and cello tape. The weight of the ganja was taken and it was found to be 43 kg. Sample packets were prepared and it was sealed and the bulk ganja packets were also packed and sealed. The seizure lists were prepared. Since 43 kg. of ganja was seized from the exclusive or conscious possession of the petitioner and other co-accused persons, they were taken into custody and written report was presented before the Inspector in charge of Nayagarh police station on 20.11.2016. 3. Mrs. Geeta Luthra, learned Senior Advocate appearing for the petitioner contended that the petitioner is in custody since 20.11.2016 and in the meantime, co-accused Sanjeeb Kumar Dehury who is similarly situated has already been released on bail in BLAPL No.171 of 2017 vide order dated 22.06.2017 and therefore, on the ground of parity and equity, the petitioner is entitled to be released on bail. It is further contended by the learned counsel for the petitioner that the investigation is perfunctory and since the ganja was seized from the dicky of the car, even if for the sake of argument, it is accepted that the petitioner was moving in the Car, it cannot be said that the ganja was seized from the exclusive or conscious possession of the petitioner. It is further contended that the mandatory provisions under sections 42 and 50 of the N.D.P.S. Act have not been complied with and the place of seizure is also doubtful and therefore, the bail application of the petitioner may be favourably considered. 4. Mr. It is further contended that the mandatory provisions under sections 42 and 50 of the N.D.P.S. Act have not been complied with and the place of seizure is also doubtful and therefore, the bail application of the petitioner 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 manner in which without stopping on the signal of the police officials, the car rushed towards Nayagarh side which was ultimately detained, it presupposes that the occupants of the car very much aware about the transportation of ganja packets in the dicky of the car. 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 petitioner is 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 43 kg. of ganja was seized from the Tata Indigo Car bearing registration No. OR 10 H 9401 which is of commercial quantity 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 petitioner along with other accused persons were present in the vehicle when it was stopped near Telephone Bhawan, Nayagarh on NH 57. It further appears that even though signal was given by the police officials when the car approached from Daspalla side in a high speed, the driver of the car did not obey the signal and speedily rushed towards Nayagarh side. The witnesses have stated how the option was given to the accused persons before search and seizure and how the vehicle was searched in presence of the Executive Magistrate and ganja packets were seized from the dicky of 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 in presence of the Executive Magistrate and ganja packets were seized from the dicky of the car. Though non-compliance of certain provisions of the N.D.P.S. Act were 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. Whether the petitioner has been falsely implicated in the case and whether he was not aware what was there in the dicky of the car and he was a mere passenger are to be adjudicated after specific defence plea is taken and evidence is adduced in that respect by the petitioner before the trial Court. 7. Even though co-accused Sanjeeb Kumar Dehury has been granted bail but on a plain reading of the bail order, it indicates that the bar under section 37 of the N.D.P.S. Act has not been kept in view. 8. 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. 9. Though one of co-accused has been granted bail by this Court but 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. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and the Judge ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis of claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. 10. Such an order can never form the basis of claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. 10. In case of Union of India -Vrs.-Rattan Mallik @ Habul reported in (2009) 42 Orissa Criminal Reports (SC) 697 where Union of India filed an appeal before the Supreme Court challenging the order of the Allahabad High Court in suspending the sentence awarded by the trial Court to the respondent/accused for having committed offences under sections 8/27-A and 8/29 of the N.D.P.S. Act and granting bail, considering the limitation imposed in sub-clause (b) of subsection (1) of section 37 of the N.D.P.S. Act, it was held that merely because, according to the learned Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. It was further held that it seems that the provisions of the N.D.P.S. Act and more particularly section 37 of the N.D.P.S. Act were not brought to the notice of the learned Judge. It was further held that the order passed by the High Court clearly violates the mandatory requirements of section 37 of the N.D.P.S. Act. The bail order was set aside with a liberty to decide afresh in the light of the limitation imposed. 11. When the mandatory provision under section 37 of the N.D.P.S. Act has not been considered while granting bail to the co-accused, I am of the humble view that such a bail order cannot form the basis of claim of party. 12. 11. When the mandatory provision under section 37 of the N.D.P.S. Act has not been considered while granting bail to the co-accused, I am of the humble view that such a bail order cannot form the basis of claim of party. 12. Therefore, when the learned counsel for the petitioner 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 petitioner along with others 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 petitioner and taking into account the punishment prescribed for such offence, I am not inclined to release the petitioner on bail. 13. 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. 14. Accordingly, the BLAPL stands dismissed.