ROSHAN Vs. STATE OF ODISHA

JUDGEMENT

(1.) This is an application for bail under sec. 439 of Cr.P.C. filed by the petitioner Roshan @ Mir Raushan Ali in connection with Kakatpur P.S. Case No.215 of 2020 corresponding to Spl. G.R. Case No.69 of 2020 pending in the Court of learned Addl. Sessions Judge -cum- Special Judge, Nimapara in which charge sheet has been submitted against the petitioner for alleged commission of offences under Sec. 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act'). The prayer for bail of the petitioner has been rejected by the learned Addl. Sessions Judge -cum- Special Judge, Nimapara vide order dtd. 19/7/2021.

(2.) The prosecution case, as per the first information report lodged by Sanatan Khuntia, S.I. of Police, Kakatpur police station, in short, is that on 8/11/2020 during M.V. checking at Somanathapur petrol pump, the informant and other police officials found one black colour Pulsar 220 motor cycle without reflecting registration number was coming from Nayahat side to Kakatpur side on Kakatpur-Astarang road with one pillion rider. They tried to stop the motor cycle for verification, but the riders did not stop. On a little chase, they managed to round them up and on being asked, the riders of the motor cycle disclosed their names as Pintu @ Jyotiranjan Mohanty and Kalu @ Akhaya Bhoi.

(3.) Mr. Devashis Panda, learned counsel for the petitioner argued that there is no iota of material on record against the petitioner that he was in conscious possession of contraband brown sugar. The petitioner was only riding the motorcycle at the request of his father Muna @ Mir Rahat Ali, who was the pillion rider and he was completely unaware of any contraband material being carried by his father. According to Mr. Panda, conscious possession of the contraband article of the petitioner is a sine qua non which is missing in the case. No contraband brown sugar was recovered from the petitioner as per the seizure list and the same was recovered from co-accused Muna @ Mir Rahat Ali, the father of the petitioner who was the pillion rider of the petitioner's bike and therefore, there is no legal bar to release the petitioner on bail. He further submitted that three of the co-accused persons, namely, Mangu @ Mangaraj Mohanty, Mangu @ Rajkishore Swain and Deba @ Budhadev Bhol have already been released on bail by this Court in BLAPL Nos.9007 of 2020, 8996 of 2020 and 9099 of 2020 respectively. The present petitioner is in no way connected with the manufacture, possession, sale, purchase, transport, import, export, use or preparation of any contraband article and hence the ingredients of the offences under N.D.P.S. Act under which charge sheet has been submitted are not prima facie made out against him. It is further contended that that the petitioner is languishing in judicial custody since 9/11/2020 and though the earlier bail application of the petitioner in BLAPL No.9109 of 2020 was rejected on 30/6/2021 on merit during pendency of the investigation, but in the meantime, the investigation has been completed and charge sheet has been submitted and moreover, the petitioner is having no criminal antecedents and therefore, the bail application may be favourably considered. He placed reliance in the case of Dharampal Singh -Vrs.- State of Punjab reported in 2010 9 Supreme Court Cases 608. Mr. D.K. Pani, learned Addl. Standing Counsel appearing for the State of Odisha, on the other hand, opposed the prayer for bail and contended that in view of the relationship between the two co-accused persons who were moving together in the Pulsar motor cycle, the distance both of them covered in the motor cycle, the surrounding circumstances in which the brown sugar was seized, the material found during course of investigation that contraband brown sugar was being transported from Jaleswar to Kakatpur for selling the same to the agents and particularly in view of the bar under sec. 37 of the N.D.P.S. Act for grant of bail in case of seizure of commercial quantity of contraband brown sugar, the petitioner does not deserve to be released on bail. He argued that the defence plea of the petitioner that he was not aware what his father was carrying with him who was sitting behind him as a pillion rider is to be pleaded, proved and adjudicated at the stage of trial and any finding in that respect is likely to cause prejudice to either of the parties. He placed reliance in the case of Union of India -Vrs.- Shiv Shanker Kesari reported in 2007 7 Supreme Court Cases 798, Union of India -Vrs.- Rattan Mallik reported in 2009 2 Supreme Court Cases 624, Union of India through Narcotics Control Bureau, Lucknow -Vrs.- Md. Nawaz Khan reported in 2021 10 Supreme Court Cases 100 and Madan Lal and Ors. -Vrs.- State of Himachal Pradesh reported in 2003 7 Supreme Court Cases 465.