RAJU KUMAR KUSHWA Vs. STATE OF ORISSA

JUDGEMENT

(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. 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.