Allowed

Balaram Kanhar v. State of Odisha

Orissa HC27 Aug 2021BLAPL/636/2020

Case brief

AI extract

What is this about?

This bail application was posted via video conferencing. The High Court considered the petitioner’s submission that a co-accused’s confessional statement was inadmissible under the Evidence Act. The Court granted bail with stringent conditions to appear in court, refrain from similar activities, and not tamper with evidence.

What did the court decide?

The petitioner was released on bail with conditions to appear in court, not indulge in similar activities, and not tamper with evidence.

Balaram Kanhar Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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BLAPL No.636 of 2020

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Balaram Kanhar

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Petitioner

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Mr.Amulya Ratna Panda, Advocate

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-versus-

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State of Odisha

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…. Opposite Party

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Mr. Manoj Kumar Mohanty, A.S.C.

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CORAM:

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JUSTICE S.K. PANIGRAHI

ORDER

27.08.2021

Order No.

1. This matter is taken up by video conferencing mode.

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2. Heard learned counsel for the petitioner and learned counsel for the State.

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3. The petitioner is in custody in connection with Phiringia PS Case No.109 of 2019 corresponding to C.T. Case No.73 of 2019 pending before the court of learned District & Sessions Judge-cum-Special Judge, Phulbani, registered for the alleged commission of offences under Sections 20(b)(ii)(C)/25/29 of the NDPS Act, has filed this application under Section 439 of CrPC for his release on bail.

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4. The brief fact of the case is that on 02.12.2019 at about 9.00 A.M. while the informant along with his other co-staff were performing patrolling duty, they got reliable information regarding illegal

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transportation of contraband article i.e., ‘ganja’ through two auto-rickshaws bearing Registration No.OD-12-4340 and OD-12B-8971. Thereafter, they proceeded to the spot and detained the two auto-rickshaws and found altogether five persons sitting in the said vehicles including two drivers. However, one of the accused namely, Biru Kanhar, who was the driver of the autorickshaw bearing Registration No.OD-12-4340 fled from the spot. The present petitioner was sitting near the driver of auto-rickshaw bearing Registration No.OD-124340. On search, the informant found 35kg of ‘ganja’ from each auto-rickshaw making the total seized quantity of ‘ganja’ was 70kg. Thereafter, the informant seized the vehicle as well as contraband ‘ganja’ after complying with the mandatory provision of NDPS Act and accordingly forwarded the present petitioner and others to the concerned court.

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5. Learned counsel for the petitioner submits that the petitioner has not been named in the FIR and he has been arrayed as an accused on the basis of the confessional statement of the co-accused. He submits that the confessional statement of the coaccused made to the informant would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act as per the

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decision held in the case of Tofan Singh v. State of Tamil Nadu; (2020) 80 OCR (SC):

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“456. A confession is an admission of guilt. The person making it states something against himself, therefore, it should be made in surroundings which are free from suspicion otherwise it violates the constitutional guarantee under Article 20(3) that no person accused of an offence shall be compelled to be a witness against himself.

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We answer the reference by stating:

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That the officers who are (1) invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.”

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Moreover, he further submits that co-accused person has already been granted bail by this Court vide order dated 13.08.2021 in BLAPL No.578 of 2020.

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6. Learned counsel for the State vehemently opposed the bail prayer of the petitioner.

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7. Considering the submissions made, facts and circumstances of the case, it is directed that the

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petitioner be released on bail in the aforesaid case with some stringent terms and conditions as deemed just and proper by the learned court in seisin over the matter with further conditions that:-

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i. the petitioner shall appear before the learned trial court on each date of posting of the case;

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ii. he shall not indulge in similar activities in future and

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iii.he shall not tamper the evidence of the prosecution witnesses in any manner.

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8. Violation of any of the conditions shall entail cancellation of the bail.

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9. The BLAPL is accordingly disposed of.

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10. Urgent certified copy of this order be granted on proper application.