Dismissed

Bama Devi@Goma v. State of Odisha

Orissa HC22 Nov 2023BLAPL/5492/2023

Case brief

AI extract

What is this about?

In an application for bail under the CrPC in a substantial offencene involving narcotics, the High Court of Orissa rejected the prayer, holding that the huge quantity of contraband seized and the petitioner's presence in the vehicle supported the prosecution case of transportation, distinguishing material from Supreme Court precedents.

What did the court decide?

The prayer for bail is rejected.

Bama Devi@Goma Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

BLAPL No. 5492 of 2023

¶3

An application under Section 439 of the Criminal Procedure Code, 1973.

¶4

---------------
Smt. BamaDevi@Goma ...… Petitioner
-Versus-
State of Odisha ...…. Opp. Parties
Advocate(s) appeared in this case:-

For Petitioner : M/s.R. Rath&
S. Rath, Advocates
For Opp. Party : Mr.SitikantaMishra,
Addl. Standing Counsel

CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGEMENT
22 nd November, 2023
SASHIKANTA MISHRA, J.

¶5

Heard Mr. Rajib Rath, learned counsel for the petitioner and Mr. Sitikanta Mishra, learned Addl. Standing Counsel.

¶6

The petitioner is in custody since 23.08.2021 in connection with R. Udayagiri P.S. Case No. 105 of 2021

¶7

Page 1 of 5

¶8

corresponding to G.R. Case No. 89 of 2021 pending in the court of learned Special Judge, Gajapati for the alleged commission of offence under Section 20(b)(ii)(C)/25/29 of the NDPS Act.

¶9

It is alleged that the petitioner along with five others were transporting contraband ganja, weighing 476 kgs. 700 grams in a Pick-up Van when they were apprehended by police. It is further alleged that such ganja was meant to be transported to theState of Punjab.

¶10

Mr. Rath, learned counsel for the petitioner submits that six persons were present in the Pick-up Van in the ‘Dala’ of which the bags containing contraband were allegedly kept. The petitioner is a gypsy and nomadic migrant selling plastic utensils and has five children. She had taken a lift in the Pick-up Van and as such was

¶11

sitting besides the driver along with five others. Therefore, there is no material to show conscious possession of the petitioner. Mr. Rath further submits that, in the meantime, trial has commenced during which the seizure witnesses have not supported the prosecution case.

¶12

Further, the petitioner has been in custody for more than

¶13

Page 2 of 5

¶14

two years and therefore, the principles laid down in Mohd Muslim @ Hussain vs State (NCT of Delhi), reportedin (2023) 4 SCC 541 should be applied. Moreover the ratio of Hussainara Khatoon & Ors vs. Home Secretary, State

¶15

Of Bihar , reported in (1980) 1 SCC 81, is also squarely applicable to the facts of the case.

¶16

Per contra, learned State Counsel while opposing the prayer for bail submits that the materials on record clearly show that the petitioner was a member of the group of five persons, all of whom belong to the State of Punjab. Only the driver was a local person. This, by itself supports the prosecution case that the contraband ganja was being transported to the State of Punjab from Odisha. That apart, the quantity of contraband is 476 kgs.700 gram. It is further submitted that the trial is in progress. Since the petitioner belongs to the State of Punjab, it would be difficult to procure her attendance before the court below in case she is released now.

¶17

I have considered the rival submissions and have also gone through the case record. The FIR clearly reveals that six persons were apprehended, out of whom, one

¶18

Page 3 of 5

¶19

Harish Chandra Behera was the driver and all the other five persons, including the present petitioner belong to the State of Punjab. Therefore, it is difficult to prima facie accept that she had taken a lift on the vehicle, rather the presence of other members with her in the same vehicle supports the prosecution story regarding transportation of contraband to the State of Punjab. There is clear evidence

¶20

that contraband was seized from the dala of the vehicle. Therefore, constructive possession, prima facie, cannot be ruled out. In the case of Mohd. Muslim (Supra), the contraband was not seized from the petitioner (Mohd. Muslim) but from the co-accused persons and he was implicated on the statement of the co-accused and on his own confessional statement. Moreover, the co-accused persons had been enlarged on bail while the petitioner (Mohd. Muslim) was in custody for more than 7 years and 4 months and trial was progressing slowly. It was under such circumstances that the Supreme Court was inclined to grant him bail. The factual scenario of the present case, as already narrated, is entirely different. Moreover, trial is in progress and there is no reason to suppose that its

¶21

Page 4 of 5

¶22

conclusion would be inordinately delayed. Hence, the ratio of Mohd. Muslim (Supra) cannot be applied to the facts to the facts of this case.

¶23

In Hussainara Khatoon (supra) the Apex Court

¶24

laid down general principles regarding the right of the accused to speedy trial. However, in the present case, trial has already commenced with some witnesses being already examined.

¶25

As regards the argument that the witnesses examined so far have not supported the prosecution case, this Court is of the view that same cannot falsify the case in its entirety since other witnesses are yet to be examined.

¶26

For the foregoing reasons therefore, and

¶27

particularly having regard to the huge quantity of contraband seized from the vehicle in which the petitioner

¶28

was an occupant, I am not inclined to allow the prayer for bail, which is therefore, rejected.

¶29

Signature Not Verified

¶30

Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cutt B.C. Tudu, Sr. Steno ack Date: 23-Nov-2023 20:00:06

¶31

……..…………………….

¶32

Sashikanta Mishra, Judge

¶33

Page 5 of 5

Bama Devi@Goma v. State of Odisha

Case brief

What is this about?

What did the court decide?

Bama Devi@Goma v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manu Duria Vs State of Odisha

Biswajit Nayak @ Gudu Vs State of Odisha

Srinibash Meher Vs State of Odisha

Pramod Kata Vs State of Odisha

Pratap Beer @ Beera Vs State of Odisha

Ajit Kanta @ Sethy Vs State of Odisha