Sarat Kumar Dey vs State Of Orissa ….. Opp. Party on 20 December, 2024

Orissa High Court

Sarat Kumar Dey vs State Of Orissa ….. Opp. Party on 20 December, 2024

Author: Savitri Ratho

Bench: Savitri Ratho

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                           BLAPL No. 5261 of 2024

Sarat Kumar Dey                     .....                            Petitioner
                                                       Mr. A. P. Bose, Advocate
                                      Vs.
State of Orissa                       .....                           Opp. Party
                                                    Ms. Sarita Maharana, A.S.C.
            CORAM:
                       JUSTICE SAVITRI RATHO
                                        ORDER

20.12.2024
(Through hybrid mode)
Order No. 1. This is an application under Section 439 of Cr.P.C. arising out

10.
of Mohana P.S. Case No.120 of 2023 (G.R. Case No.82 of 2023),

pending in the Court of the learned Addl. Sessions Judge-cum-

Special Judge, Gajapati under Section 20 (b) (ii) (C)/25/29 of the

NDPS Act. After completion of investigation, charge sheet has been

submitted against the present petitioner as well as one Pramod

Tandi keeping investigation open.

2. This BLAPL has been listed before me as BLAPL No.11589 of

2023 filed by the co-accused-Pramod Kumar Tandi @ Tuna has

been disposed of by me on 19.10.2023.

3. The prayer for bail of the co-accused-Pramod Kumar Tandi

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has been rejected vide order dated 12.04.2024 in BLAPL No.3544

of 2024.

4. As per the prosecution allegations, 4335 Kgs 500 grams of

ganja has been seized from a Tata-709 EX truck bearing

registration No.OD-07-F-2979 which has been registered in the

name of the wife of the petitioner – Mausumi Dey.

5. Mr. Amit Prasad Bose, learned counsel for the petitioner

submits that the petitioner is in custody since 20.08.2023 but till

date no witnesses have been examined in the trial. He also submits

that there is no allegation that the petitioner was present in the

vehicle nor is there any allegation that any ganja has been seized

from his exclusive and conscious possession. He further submits

that the petitioner has been arrested on the basis of tracking of his

mobile phone which was found to be in vicinity at the time of

seizure. He also submits that his wife, who is alleged to be the

owner of the truck has not been charge sheeted in this case. He

finally submits that as the basis of his implication is the statement

of the co-accused, the chances of his conviction in the case are

bleak in view of the decision of the Supreme Court in the case of

Tofan Singh vs. State of Tamilnadu reported in (2020) 80 OCR

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(SC) 641 for which he may be granted bail. He also submits that

although it has been alleged that out of five antecedents two cases

are registered under Section 20(b)(ii)(C) of the NDPS Act. He is not

an accused in R. Udaygiri PS Case No. 54 of 2020 and that he has

been granted bail in R. Udaygiri P.S. Case No. 138 of 2022 by this

Court in BLAPL No. 4539 of 2024 on 20.05.2024 taking note of the

ratio decided in Tofan Singh vs. State of Tamilnadu.

6. He is alleged to be accused in:-

1. R. Udaygiri P.S. Case No. 54 dated 20.08.2020 under
Section 20(b)(ii)(C)/25/29 of the NDPS Act,

2. R. Udaygiri P.S. Case No. 34 dated 27.02.2021 under
Section 224/24 IPC,

3. R. Udaygiri P.S. Case No. 138 dated 13.11.2022 under
Section 20(b)(ii)(C)/25/29 of the NDPS Act,

4. Brahmagiri PS Case No. 203 dated 02.11.2014 under
Section 394 of IPC,

5. Brahmagiri PS Case No. 15 dated 02.02.2020 under
Section 342/294/379/506 of IPC,

6. Brahmagiri PS Case No. 166 dated 13.07.2022 under
Section 341/294/323/324/427/379/506/34 of IPC.

7. Ms. S. Maharana, learned Addl. Standing Counsel opposes the

prayer for bail stating that huge quantity of Ganja- 4335kg 500gm

have been seized in the case and apart from the statement of the

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co-accused the complicity of the petitioner is also made out as he

was found to be moving in the area and his wife Mausumi Dey is

the owner of the vehicle which was being used by him for

transporting ganja. She also submits that in view of the fact that the

petitioner has two criminal antecedents under Section 20 (b) (ii)

(C) of the NDPS Act and in view of quantity of ganja seized, Section

37 of the NDPS Act will be a bar for consideration/releasing him on

bail. She further submits that co-accused Pramod Kumar Tandi @

Tuna against whom similar allegations were made has also been

rejected at the stage of investigation.

8. Considering the quantity of ganja seized, the materials

collected against the petitioner during investigation and more

specifically as he has at least one similar antecedent under Section

20(b)(ii)(C) of the NDPS Act, I am of the view that Section 37 of the

NDPS Act will be a bar for releasing the petitioner on bail. The

prayer for bail is therefore rejected.

9. Considering the fact that the petitioner is in custody since

20.08.2023 and the submission that no witnesses have been

examined till date, the learned trial Court is requested to take steps

for commencement of the trial.

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10. Liberty is granted to the petitioner to move for bail afresh in

case there is undue delay in commencement of the trial or

completion of the trial.

(Savitri Ratho)
Judge
Subhalaxmi

Signature Not Verified
Digitally Signed
Signed by: SUBHALAXMI PRIYADARSHANI
SAHOO
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 13-Jan-2025 15:46:17

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