Laxman Sahu vs State of Orissa

Indrajit Mahanty, J.—Challenge in the present application u/s 20(b)(ii)(C) of the has been made to an order of cognizance dated 5.10.2009 passed in Special Case No. 21 of 2009 by which order the learned Judge, Special Court, Angul was pleased to take cognizance of the offence u/s 20(b)(ii)(C) of the N.D.P.S. Act against three persons, namely, Laxman Sahu S/o. Birabara Sahu, Laxman Sahu S/o. Janaka Sahu & Jaya Sahu -S/.o. Dunu Sahu.

It appears from the proceeding of the case that one Albinus Kerketta, Inspector-in-Charge of Chhendidpada Police Station drew a plain paper F.I.R. to the effect that on 6.8.2009 at about 9.00 A.M. he got a telephonic message regarding illegal transportation of Ganja by the accused persons. After obtaining such information he along with his staff proceeded to the post and found that three persons were coming with his staff loading with Ganja and on seeming the police officials, two of them, namely. Laxman Sahu S/o.

Janaka Sahu (present Petitioner) as well as Jaya Sahu S/o. Dunu Sahu, fled away from the spot and one of the accused persons, namely, Laxman Sahu S/o. Birabara Sahu was caught/apprehended raid handed at the site.

Learned Counsel for the Petitioner submits that on perusal of the F.I.R. it appears that only Laxman Sahu S/o. Birabara Sahu was apprehended on the spot and it is only after the detention of the apprehended accused Laxman Sahu S/o. Birabara Sahu, charge sheet was filed against the present Petitioner as well as two others while showing the Petitioner as absconder. It is submitted by the Petitioner''s counsel that the only evidence presently available on record is 161 Code of Criminal Procedure statements various witnesses and while confession of the apprehended accused Laxman Sahu before the Police was not admissible in law as evidence, the learned Special Judge passed order of cognizance without application of judicial mind.

In this respect learned Counsel for the Petitioner placed reliance upon a judgment of the Hon''ble Supreme Court in the case of Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, as well as the un reported decision of this Court in the case of Pramod Banka v. State of Orissa in CRLMC No. 1033 of 2008 disposed of on 23.9.2008.

Mr. Narasingh, learned Additional Government Advocate for the State on the other had submits that the Petitioner remains as an absconder and at the present stage of the proceeding since cognizance alone has been taken of the offence, this is not the right stage to consider as to what is admissible evidence or not. Since in course of the trial the evidence produced by the prosecution, which obviously would have to stand the test of law as mandated by Code of Criminal Procedure as well as Evidence Act.

On perusal of the judgment of the Hon''ble Supreme Court in the case of Haricharan Kurmi (supra), the Hon''ble Supreme Court, dealt with scope of Sections 30 and 3 of the Evidence Act and came to hold that, the confession of a co-accused person cannot be treated as "substantive evidence" and can be pressed in to service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. Hon''ble Supreme Court in that case was considering a case in which the accused persons had been found guilty of an offence and had directed conviction thereof and sentenced them to imprisonment for life. In course of such proceeding the Hon''ble Court was considering as to whether the "evidence" relied upon by the trial court and the appellate court could have been relied upon or not. In other word in the said case trial had been concluded, obviously after evidence had been led by prosecution.

In the present case at hand the stage of proceeding is merely the passing of an order of cognizance. Therefore, the prosecution is yet to lead any evidence in support of the charge against the accused persons and there can be no question of weighing such evidence, until and unless such trial is concluded. Therefore, I am of the considered view that the aforesaid judgment on the facts of the present case is clearly not applicable.

Learned Counsel for the Petitioner relied upon the judgment of this Court in the case of Pramod Banka (supra), the Petitioner therein has sought to challenge the order of cognizance on the ground that he had been implicated on the statement of the co-accused persons given before the police and on the confession statement of the Petitioner had been implicated as an accused.

In the present case at hand, it is noted in the F.I.R. that, three persons were coming with three bicycles loaded with Kg.52.300 Grama of Ganja, while one of the accused persons was apprehended on the spot the present accused-Petitioner had another co-accused Jaya Sahu ran away from the spot on seeing the police officials. Therefore, since the F.I.R. itself speaks of presence of these two accused persons it cannot presently be accepted that the order of cognizance against the two accused persons who fled away from the spit is merely based on a co-accused statement.

Accordingly, in consideration of the above, I am not inclined to exercise extraordinary power u/s 482 Code of Criminal Procedure in favour of the Petitioner and also find no merit in the present application of the Petitioner. Hence, the same stands dismissed and the order of cognizance dated 5.10.2009 passed by the learned Judge, Special Court, Angul is affirmed.

The interim order dated 25.2.2010 passed in Misc. Case No. 3421 of 2009 stands vacated.