Orissa High Court
Mahendra Khemudu vs State Of Odisha …… Opp. Party on 19 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 11409 of 2024
Applications under Section 439 of the Code of Criminal Procedure.
--------------
Mahendra Khemudu ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Rajib Lochan Pattnaik, Advocate
For Opp. Party : Ms. Siva Mohanty, A.S.C.
BLAPL No. 10190 of 2024
Mangaraj Muduli ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Basudev Pujari, Advocate
For Opp. Party : Ms. Siva Mohanty, A.S.C.
--------------------------------------------------------------------------------
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
19.02.2025
BLAPL No. 11409 & 10190 of 2024 Page 1 of 11
Savitri Ratho, J. These bail applications under Section 439 of Cr.P.C. have
been filed in connection with Kalimela Excise P.R. Case No.103 of
2023-24 corresponding to 2 (a) C.C. Case No.56 of 2023, pending
in the Court of the learned Additional Sessions Judge-cum-Special
Judge, Malkanagiri for commission of offence punishable under
Section 20 (b) (ii) (C) of the NDPS Act.
MAHENDRA KHEMUDU
2. BLAPL No.13055 of 2023 filed by the petitioner-
Mahendra Khemudu had earlier been dismissed as withdrawn on
22.11.2023.
Thereafter, his prayer for bail was rejected by the learned
Addl. Sessions Judge -cum- Special Judge, Malkangiri on
30.10.2024.
MANGARAJ MUDULI
3. BLAPL No.10190 of 2024 is the third application of the
petitioner-Mangaraj Muduli. His first application-BLAPL
No.13164 of 2023 had been dismissed on 07.12.2023 granting him
liberty to approach the learned Court below for bail afresh after
completion of the investigation.
BLAPL No. 11409 & 10190 of 2024 Page 2 of 11
His second application BLAPL No.5492 of 2024 had
been dismissed on 09.08.2024 granting liberty to him to move the
learned trial court for bail afresh in case there is undue delay in
completion of the trial.
Thereafter, his prayer for bail was rejected by the learned
Addl. Sessions Judge -cum- Special Judge, Malkangiri on
25.09.2024.
PROSECUTION CASE
4. The prosecution allegation in brief is that on 10.10.2023
at about 5.00 a.m., the S.I. of Excise, Kalimela Excise Station
while performing the patrolling duty, noticed the petitioners in a
Maruti Suzuki SX4 car bearing Registration No. AP-10-AN-5935.
Mahendra Khemudu was the driver and Mangaraj Muduli was
sitting in the back seat of the car with a white jari basta. As smell
of ganja was emanating from the car, a driver of an auto rickshaw
was asked to be a witness. After complying with the requirements
of the NDPS Act, they searched the car and recovered 140 kgs. of
ganja kept in five gunny bags from the car. Each bag contained 28
kgs of ganja. As the accused persons could not produce any
document in support of such possession, the ganja was seized and
they were arrested.
BLAPL No. 11409 & 10190 of 2024 Page 3 of 11
SUBMISSIONS
5. I have heard the learned counsel for the petitioners, and
gone through the materials on record .
Learned counsel for the petitioners have submitted that
the petitioners are in custody since 10.10.2023 and they do not
have any criminal antecedents under the NDPS Act or any
antecedents under Sections 274/275 of the IPC. They have further
submitted that since the seizure has been made from a private car,
Section 42 of the NDPS Act should have been complied with and
on account of non-compliance of Section 42 of the Act, the
petitioners are entitled to be acquitted and to be released on bail.
They have also submitted that out of four witnesses, only two
witnesses have been examined so far (one official witness and one
seizure witness). The seizure witness has not supported the
prosecution case and the official witness has admitted non-
compliance of mandatory provisions of the NDPS Act like Section
42 and 50 , which entitles the petitioners to bail. They have further
submitted that the petitioners are entitled to be released on bail on
account of delay in completion of the trial. In support of their
submissions, they have relied on the following decisions of the
Supreme Court in the cases of (i) Ankur Chaudhary v. State of
BLAPL No. 11409 & 10190 of 2024 Page 4 of 11
Madhya Pradesh decided on 28.05.2024 in Special Leave to
Appeal (Crl.) No.4648 of 2024 (ii) Rabi Prakash v. The State of
Odisha : 2023 Live Law (SC) 533 and (iii) Dheeraj Kumar Shukla
v. The State of Uttar Pradesh decided on 25.01.2023 in Special
Leave to Appeal (Crl.) No.6690 of 2022.
6. Ms. Siva Mohanty, learned Addl. Standing Counsel for
the State has submitted that the petitioners may be granted bail as
they have remained in custody since long, but trial has not been
completed and as they do not have any antecedent under the NDPS
Act.
JUDICIAL PRONOUNCEMENTS
7. The Supreme Court in the case of Ankur Chaudhary
(supra) where the accused had remained in custody for more than
two years for the offence punishable under Section 8 read with
Sections 22 and 29 of the NDPS Act and the two panch witnesses
had not supported the prosecution case, directed for release of the
petitioners on bail.
“Now, on examination, the panch witnesses have not
supported the case of prosecution. On facts, we are
not inclined to consider the Investigation Officer as
a panch witness. It is to observe that failure to
conclude the trial within a reasonable time resultingBLAPL No. 11409 & 10190 of 2024 Page 5 of 11
in prolonged incarceration militates against the
precious fundamental right guaranteed under Article
21 of the Constitution of India, and as such,
conditional liberty overriding the statutory embargo
created under Section 37(1)(b) of the NDPS Act
may, in such circumstances, be considered.
In view of the above, we are inclined to allow this
petition and direct to enlarge the petitioner on bail
on furnishing the suitable bail bonds and sureties
and on such other terms and conditions as may be
deemed fit by the trial Court.”
The Supreme Court in the case of Rabi Prakash (supra)
where only one out of nineteen witnesses had been examined
and the accused had remained in custody for more than three
and half years , while allowing the prayer for bail , observed as
follows:
” 4. As regard to the twin conditions contained in
Section 37 of the NDPS Act, learned counsel for the
respondent – State has been duly heard. Thus, the
1st condition stands complied with. So far as the 2nd
condition re: formation of opinion as to whether
there are reasonable grounds to believe that the
petitioner is not guilty, the same may not be formed
at this stage when he has already spent more than
three and a half years in custody. The prolonged
incarceration, generally militates against the mostBLAPL No. 11409 & 10190 of 2024 Page 6 of 11
precious fundamental right guaranteed under Article
21 of the Constitution and in such a situation, the
conditional liberty must override the statutory
embargo created under Section 37(1)(b)(ii) of the
NDPS Act.”
In the case of Dheeraj Kumar Shukla (supra),
two vehicles carrying ganja had been intercepted. The
petitioner was driving a car from which 65 Kgs of ganja
had been recovered. Considering the fact that the co
accused who were the occupants of the Honda City car
from which 92 Kgs of ganja had been recovered had been
released on bail and the petitioner had been in custody for
more than two and half years and trial was yet to start and
the petitioner had no criminal antecedents, the Supreme
Court observed that the provisions of Section 37 of the
NDPS Act could be dispensed with. The relevant
paragraphs are extracted below :-
“3. It appears that some of the occupants of the
„Honda City‟ Car including Praveen Maurya @
Puneet Maurya have since been released on regular
bail. It is true that the quantity recovered from the
petitioner is commercial in nature and the provisions
of Section 37 of the Act may ordinarily be attracted.
However, in the absence of criminal antecedents and
the fact that the petitioner is in custody for the last two
and a half years, we are satisfied that the conditions
of Section 37 of the Act can be dispensed with at thisBLAPL No. 11409 & 10190 of 2024 Page 7 of 11
stage, more so when the trial is yet to commence
though the charges have been framed.
4. For the reasons stated above but without expressing
any views on the merits of the case, the petitioner is
directed to be released on bail subject to his
furnishing bail bonds to the satisfaction of the Trial
Court.
5. It is made clear that in addition to the
conditions that may be imposed by the Trial
Court, the petitioner shall be required to appear
before the Trial Court on every date of hearing.
In case the petitioner is found to be involved in
future in any other similar case, the respondent –
State shall be at liberty to seek cancellation of
bail granted to him by this Court.”
In the case of NCB vs. Kashif (Criminal Appeal
No.5544 of 2024 @ SLP (Crl.) No. 12120 of 2024), the
Supreme Court has reiterated the position of law regarding
evidence collected by an illegal search or seizure and held as
follows:
“26. It is further pertinent to note that as per the
settled legal position even the evidence collected by an
illegal search or seizure could not be excluded or
discarded. Whether the evidence collected by an illegal
search or seizure is admissible or not has been
considered by this Court in a series of decisions and one
of the earliest decisions is the decision of theBLAPL No. 11409 & 10190 of 2024 Page 8 of 11
Constitution Bench in case of Pooran Mal Vs. Director
of Inspection (Investigation) New Delhi and Others
(supra). It was observed therein that:
“24. So far as India is concerned its law of
evidence is modelled on the rules of evidence
which prevailed in English Law, and Courts in
India and in England have consistently refused to
exclude relevant evidence merely on the ground
that it is obtained by illegal search or seizure.”
ANALYSIS AND CONCLUSION
8. There can be no quarrel over the proposition that an accused is
entitled for an acquittal on account of violation of mandatory
provisions of the NDPS Act, if prejudice has been caused to him /
her. But this has to be proved during trial. It would therefore not be
proper to scan the case diary and the evidence of the witnesses to
consider the effect of alleged non-compliance of the mandatory
provisions of the NDPS Act for considering this application for bail.
9. As regards compliance of Section 37 of the NDPS Act, the
learned counsel for the State was given a chance to oppose the
prayers for bail.
10. In view of the above discussion, and the submissions of the
learned counsel, especially the submission that the petitioners do
not have any criminal antecedents and as the independent seizure
witness did not support the prosecution case, I am of the view that
BLAPL No. 11409 & 10190 of 2024 Page 9 of 11
Section 37 of the NDPS Act will not be a bar to allow the prayers
for bail of the petitioners.
11. The petitioners – Mahendra Khemudu and Mangaraj
Muduli shall be released on bail on such terms and conditions as
may be fixed by the learned Court below in seisin over the matter,
after verifying that they do not have any antecedents under the
NDPS Act or under Section – 274/275 IPC, including the following
conditions:
i) They will each furnish cash surety of Rs.20,000/- (Rupees
twenty thousand) .
ii) They will not leave Malkanagiri District, without permission
of the learned trial Court.
iii) They will furnish their local address and permanent address
to the Court, which will be verified through the Police, before
the petitioners are released on bail.
iv) They will furnish their active mobile number to the Court,
which shall be verified, before they are released on bail. They
shall intimate any change in their mobile number to their
counsel immediately, so that it can be intimated to the Court .
v) They will remain personally present in the learned trial court
on each date it is fixed for trial.
vi) They will appear before the Kalimela Police Station on
every alternative Sunday between 10.00 am to 12.00 p.m.,BLAPL No. 11409 & 10190 of 2024 Page 10 of 11
unless permitted by the learned trial court, to leave Malkangiri
District.
vii) They will not indulge in any criminal activity .
12. Violation of any conditions will entail in cancellation of
bail.
13. The BLAPLs are allowed.
14. Observations made in this order/judgment have been made
for the sole purpose of deciding the bail application and should not
be considered as an expression of opinion on the merits of the case.
15. Copy of this order shall be sent to Ms.Siva Mohanty, learned
Standing Counsel for on onward transmission to the IIC, Kalimela
Police Station.
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 19th February, 2025/Bichi
Signature Not Verified
Digitally Signed
Signed by: BICHITRANANDA SAHOO
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 06-Mar-2025 19:28:49
BLAPL No. 11409 & 10190 of 2024 Page 11 of 11
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