Orissa High Court

Debendra @ Deba Khilla vs State Of Odisha ..... Opp. Party on 30 August, 2024

Author:
Savitri Ratho

Bench:
Savitri Ratho

IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6665 of 2024

Debendra @ Deba Khilla ..... Petitioner
Mr.Abhas Mohanty, Advocate
Vs.
State of Odisha ..... Opp. Party
Mr.S.S.Mohapatra, ASC
CORAM:
JUSTICE SAVITRI RATHO

ORDER

30.08.2024
Order No. (Through hybrid mode)

02.

1. This application under
Section 439
of Cr.P.C. has been filed by

the petitioner in connection with Malkangiri P.S. Case No.488 of 2023

corresponding to Special G.R. Case No.187 of 2023, pending in the

Court of the learned Sessions Judge-cum-Special Judge, Malkangiri for

commission of offences punishable under
Sections 20 (b) (ii) (C)
/
(1) (a)
/
27 (a)
and
of the N.D.P.S. Act.

2. This case had been listed before me as BLAPL No.10835 of

2023 filed by the co-accused, Ananta Hantal had been dismissed by me

on 06.10.2023.

3. The prayer for bail of the petitioner has been rejected vide order

dated 29.05.2024 by the learned Sessions Judge-cum-Special Judge,

Malkangiri.

4. While rejecting the prayer for bail, the learned trial Court has

observed that involvement of the petitioner in Kalimela P.S. Case

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No.121 dated 21.05.2023 prima facie shows that he is a habitual

offender and that two more persons are yet to be arrested and to be

brought on record.

5. The prosecution allegation in brief is that on 07.09.2023 at about

9.10 a.m. while the S.I. of Police, Malkangiri P.S. alongwith his staff

were performing day patrolling duty in Padmagiri and Pandripani area,

they received reliable information that four to five persons had

assembled below one Mahua tree near Telimetla Chowk about 02

K.Ms distance from Padmagiri Chowk and were in possession of

contraband ganja which they were about to transport to Chhatisgarh.

The police party reached the spot and apprehended four persons,

namely, Kamal Lochan Kope, Shyam Sundar Pangi, Ananta Hantal and

Rama Kope while three persons escaped from the spot. 150 Kgs of

ganja were seized from the possession of four accused persons and on

being asked they stated that the present petitioner-Debendra @ Deba

Khilla is the supplier of said ganja and three persons who fled from the

spot were Abhi Sagaria, Mitu Hantal and Durjya Sanabasi. They

further stated that they were about to transport the ganja to

Chhatisgarh. On search, 05 sacks containing 30 Kgs. each of ganja was

recovered from their possession. As they could not produce any

authority for possession of ganja, the ganja was seized and they were

arrested.

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6. Mr.Abhas Mohanty, learned counsel for the petitioner submits

that the petitioner is in custody since 30.03.2024 and other than the

confession of the co-accused, there is no other material to implicate the

petitioner with the said crime. He further submits that the petitioner has

one criminal antecedent under
Section 20 (b) (ii) (C)
of the NDPS Act

vide Kalimela P.S. Case No.121 of 2023 and he has filed BLAPL

No.4005 of 2024 in this Court which is pending. His further

submission is that since the petitioner is a local man, there is no chance

of his absconding if he is released on bail. He finally submits that in

view of the fact that there has been no recovery of ganja from his

possession, it cannot be said that he is the guilty of the said offence or

that he is not likely to commit such offence for which
Section 37
of the

NDPS Act will not be a bar for releasing him on bail.

7. Mr.S.S.Mohapatra, learned Addl. Standing Counsel opposes the

prayer for bail stating that although in the case diary the I.O. has

mentioned that the petitioner has no criminal antecedent but it is

apparent from the rejection order that the petitioner is involved in

Kalimela P.S. Case No.121 of 2023 under the
NDPS Act
. He further

submits that in view of the quantity of ganja seized and as he has one

criminal antecedent of similar nature,
Section 37
of the NDPS Act will

be attracted in this case for which the petitioner should not be released

on bail.

Page 3 of 4

8. Strangely the I.O. has not mentioned the criminal antecedent of

the petitioner in the case diary but the counsel for the petitioner has

fairly mentioned the antecedent of the petitioner in paragraph-13 of the

bail application - that the petitioner is involved in Kalimela P.S. Case

No.121 of 2023 where the basis of his implication is the statement of

the co-accused.

9.
In view of the nature of allegations against the petitioner, nature

of his criminal antecedent, the provision of
Section 37
of the NDPS

Act and the decision of the Supreme Court in the case of
Union of

India v. Ajay Kumar Singh
: 2023 SCC Online SC 346, I am not

inclined to release the petitioner on bail at this stage.

10. The prayer for bail is accordingly rejected.

11. It is open for the petitioner to move for bail afresh in case there

is undue delay in completion of the trial.

12. Copy of this order be sent to the Superintendent of Police,

Malkangiri that he can take action as deemed fit against the person

concerned for giving incorrect particulars about the criminal

antecedents of the petitioner.

(Savitri Ratho)
Bichi Judge

Signature Not Verified

Digitally Signed

Signed by: BICHITRANANDA SAHOO

Designation: Secretary

Reason: Authentication

Location: Orissa High Court

Date: 03-Sep-2024 19:40:39

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