ASIM KUMAR DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners Asim Kumar Das and Kulu Kumbhar have filed this application under section 439 of Cr.P.C. in connection with Dhama P.S. Case No. 50 of 2017 corresponding to T.R. Case No. 31 of 2017 pending in the Court of learned Sessions Judge -cum- Judge, Special Court, Sambalpur for commission of offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act , 1985 (hereafter ' N.D.P.S. Act ').

(2.) The prosecution case, in short, is that while the informant Rasmibala Sethi, S.I. of police, Dhama police station along with other police officials were performing duty on 30.03.2017 at about 6.00 a.m. on S.H. 15 near College Chowk, Dhama, they found one car came from Sonepur side towards Sambalpur side in a high speed. When the police party signalled the car to stop, the driver of the car stopped the car but opening the door of the car, he ran away towards the nearby jungle. Though the police staff chased to apprehend the driver but they failed in their attempt. Two persons were found inside the car which was bearing registration no. OR-14-X-0931. Though those two persons also tried to escape but they were detained and they disclosed their names and addresses and they were the petitioners in this bail application. The petitioners disclosed the name of the driver of the car as Rahul Yadav. The vehicle was searched and one white colour plastic gunny bag was found on the backside seat of the car from which smell of ganja was coming out. The petitioners disclosed that the plastic gunny bag was containing ganja and they purchased it from Sonepur from one Gulu Sahu and carrying the same towards Rourkela to sell it in higher price to Shammy Singh who was also the owner of the car in which they were carrying ganja. The petitioners failed to produce any document or authority in support of their possession and transportation of ganja in the car. The informant intimated her superior officers about the detection of ganja and the petitioners were informed by her regarding their option to be searched in person as well as search of the car in presence of the Executive Magistrate or Gazetted Officer but they denied to be searched before any of them. The informant called to local witnesses, weighman and after their arrival, the personal search of the petitioners were taken but nothing incriminating were found and when the car was searched in presence of the witnesses, one white colour plastic gunny bag was found containing ganja. The ganja was weighed and it was found to be 22 kgs. Two samples of ganja of 25 grams each was collected and kept separately in paper envelops which were marked as Exts. A-1 and A-2. The bulk ganja packet and the sample packets were sealed with the personal brass seal of the informant in presence of the witnesses. Seizure lists were prepared and copies thereof were given to the petitioners and they put their signatures on the same in token of receipt. The personal brass seal was handed over in the zima of witness Debasis Pattnaik after executing proper zimanama. Since the petitioners were found in exclusive and conscious possession of 22 kgs. of ganja in the car, they were brought to the police station along with the seized ganja packets, car and first information report was lodged before the Inspector in charge of Dhama police station, on the basis of which Dhama P.S. Case No.50 of 2017 was registered on 30.03.2017 for offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act. The petitioners were forwarded to the Court on 31.03.2017 and since then they are in jail custody.

(3.) Mr. Devashis Panda, learned counsel appearing for the petitioners contended that co-accused persons namely Shammy Singh, Gulu @ Bulu Sahu and Rahul Yadav have been released on bail by this Court in BLAPL No.3413 of 2017, BLAPL No.7408 of 2017 and BLAPL No.4960 of 2017 respectively. It is further contended by the learned counsel for the petitioners that the investigation is perfunctory and since P.S. Case numbers find place in the seizure lists which were stated to have been prepared at the spot, it creates doubt regarding the timing and place of its preparation rather it indicates that the seizure lists were concocted. It is further contended that the witnesses are not consistent regarding seizure and preparation of homogenous mixture of ganja found from the plastic bag was not proper and justified. It is further contended that the mandatory provision under section 50 of the N.D.P.S. Act has not been complied with and therefore, the bail application of the petitioners may be favourably considered.