Tahajul Sk vs State Of Orissa

Savitri Ratho, J

This application has been filed under Section 439 of the Cr.P.C. in connection with Khurda Road GRP.S. case No. 70 of 2023 corresponding to T.R. Case No. 397 of 2023 pending before the Court of the learned 2nd Additional Sessions Judge, Bhubaneswar, where charge sheet dated 30.11.2023 has been submitted against the petitioner and two other accused persons namely Md. Giyasuddin Mondal and Md. Yunus Sk., for commission of offence punishable under Section 20(b)(ii)(C) of NDPS Act.

This application has been listed before me as BLAPL No. 12898 of 2023 filed by the co-accused Md. Yonus Sk. had been disposed of by me on 16.11.2023.

The prayer for bail of the petitioner and co-accused persons has been rejected on 24.01.2024 passed by learned Additional Sessions Judge, Bhubaneswar.

The prosecution allegation in brief is that on 31.07.2023 at about 12.35 PM, while the SI, RPF Post, Khurda was performing joint special drive at Khurda Road Railway Station, they noticed the petitioner and the co-accused sitting on a cement chair on Platform No.1 with three carry bags. On suspicion, they detained the three persons and on search 63kg. of Ganja was recovered from their conscious possession. As they failed to produce any authority or license for possessing the same, the ganja was seized, and they were arrested.

Ms. Shefali Dash, learned counsel for the petitioner submits that the petitioner is aged about 23 years and is in custody since 31.07.2023. He has no criminal antecedents but is being exposed to hardened criminals in jail. Charge sheet has been filed. She further submits that although it is stated in the FIR and the rejection order that 63 kgs. of Ganja has been recovered from the conscious possession of the petitioner, but a perusal of the seizure list would reveal that 21kg of ganja has allegedly been recovered from the bag being carried by the petitioner. She further submits that in view of the quantity of ganja seized, the possibility of mistake in weighment cannot be ruled out, for which the bar in Section 37 of the N.D.P.S. Act will not be attracted for considering the prayer for bail of the petitioner. She submits that though the petitioner belongs to West Bengal, he is willing to abide by any conditions, which may be imposed for releasing him on bail. She finally submits that co-accused Md. Yunus Sk. and Md. Giyasuddin Mondal, who stand on similar footing have been granted bail in BLAPL No. 863 of 2024 and BLAPL No. 1943 of 2024.

Mr. M. R. Mishra, learned Additional Standing Counsel opposes the prayer for bail stating that the perusal of the train tickets found in the possession of the petitioner and the co-accused persons, would reveal that they were travelling together for which the offence under Section 20(b)(ii)(c) has rightly been alleged to have been committed by them. He further submits that in view of the quantity of ganja seized, section 37 of the NDPS Act will be a bar for releasing the petitioner on bail. He also submits that as the petitioner belongs to Bengal, it will be difficult to secure his presence during trial, if he is released on bail.

It is alleged that 63 kg of ganja has been recovered from the three accused persons. As that 21 kgs of ganja has been allegedly seized from the possession of the petitioner and the petitioner does not have any criminal antecedents and the submission regarding possibility of mistake in weighment, I am of the view that Section-37 of the NDPS Act will not be a bar for considering his prayer for bail. I am therefore inclined to allow the prayer for bail of the petitioner.

The petitioner Tahajul Sk. shall be released on bail on such terms and conditions as deemed fit and proper by the learned Court below in seisin over the matter, subject to verification of his criminal antecedents in Odisha and West Bengal, including the following conditions:

(i) He will furnish his mobile numbers, copy of Aadhaar Cards and permanent address in West Bengal to the Court, which shall be verified by the police before he is released on bail.

(ii) He will remain present on each date fixed for trial subject to any order passed by the learned trial Court passed under Section 317 Cr.P.C.

(iii) He will not leave Odisha without prior permission of the learned trial Court once trial commences.

(iv) He will furnish cash surety of Rs.7,500/- (Rupees Seven Thousand Five Hundred only).

Violation of any condition will entail in cancellation of bail.

The BLAPL is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.

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