Padman Muduli Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 8512 of 2024

Application under Section 439 of the Code of Criminal Procedure.

*Siba Sankara Khi*	-------------- *lla* *..….* *Petitioner* -versus-
*State of Odisha*	…… *Opp. Party*
For Petitioner	: Mr. R.L. Pattnaik, Advocate
For Opp. Party	: Ms. Bijayalaxmi Tripathy, A.S.C.
	BLAPL No. 9650 of 2024
*Padman Muduli*	*..….* *Petitioner*
	-versus-
*State of Odisha*	…… *Opp. Party*
For Petitioner	: Mr. Basudev Pujari, Advocate with Mr. Sarbeswar Sahoo, Advocate
For Opp. Party	: Ms. Bijayalaxmi Tripathy, A.S.C.

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 1 of 10

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CORAM:

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HON’BLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 20.12.2024

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Savitri Ratho, J These are the successive applications of the petitioners

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filed under Section 439 of the Cr.P.C. in connection with Malkangiri P.S. Case No. 529 of 2023, arising out of Special G.R. Case No. 204 of 2023 pending in the Court of learned Sessions Judge -cum- Special Judge, Malkangiri where chargesheet has ben filed under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act.

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BLAPL No. 13322 of 2023 filed earlier by the petitionerSiba Sankara Khilla (BLAPL No. 8512 of 2024) had been dismissed as withdrawn on 18.04.2024 by this Court granting liberty to the petitioner to move the learned court below for bail afresh giving correct particulars.

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BLAPL No. 13146 of 2023 filed earlier by the petitionerPadman Muduli (BLAPL No. 9650 of 2024) had been dismissed on

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16.05.2024 by this Court.

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 2 of 10

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Thereafter, the petitioners had moved the learned Court below for bail and the prayer for bail have been rejected by the learned Special Judge, Malkangiri on 08.08.2024.

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On 30.09.2023 at about 4.45 a.m. while performing patrolling duty, the police staff stopped two bolero vehicles coming from Malkangiri on suspicion. The first Bolero bearing the Registration No. OD-24-7169 was stopped in which one M. Mohan Rao and CICL were sitting. The second Bolero bearing Registration No. OD-02-AL-9817 also stopped some distance away and three persons sitting in that Bolero escaped. During search, 600 kgs. of contraband ganja were seized from the vehicles. The second Bolero was being allegedly driven by M. Arjun Rao @ China (brother of accused M. Mohan Rao) with co-passanger Ganesh. During interrogation, M. Mohan Rao stated that the ganja had been supplied by Padman Muduli, petitioner in BLAPL No. 9650 of 2024, who was escorting the ganja in Bolero bearing Registration No. OR-05-AM-4772 and the petitioner Siba Sankar Khilla (BLAPL No. 8512 of 2024) was escorting the ganja and it was to be supplied to a man in Haryana. The petitioners have been arrested on 01.10.2023. During investigation, it was found that petitioner Padman Muduli has one criminal antecedent i.e.

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 3 of 10

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Chitrakonda PS Case No. 57 of 2023 registered under Section 20(b)(ii)(C) of the NDPS Act and petitioner Siba Sankar Khilla is involved in Orkel P.S. Case No. 104 of 2019 registered under Section 20(b)(ii)(C) of the NDPS Act.

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Learned counsel for the petitioners submitted that the petitioners are in custody since 01.10.2023 and till date no witness has been examined in the case. They further submitted that the sole basis of implication of the petitioners is the statement of the coaccused M. Mohan Rao, but the said statement cannot be used against them, in view of the decision of the Hon’ble Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu : (2021) 4 SCC 1 : 2020 (80) OCR SC 641 . They submitted that though each of the petitioners have one criminal antecedent under Section 20(b)(ii)(C) of the NDPS Act, since the ganja has not been seized from their exclusive possession and there is no other incriminating material against them, Section 37 of the NDPS Act will not be a bar for allowing their prayers for bail . They finally submitted that the petitioners are the residents of district Malkangiri and hence there is no chance of their absconding if they are released on bail.

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Ms. Bijayalaxmi Tripathy, learned Additional Standing

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Counsel for the State opposes the prayer for bail stating that a huge

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 4 of 10

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quantity of ganja - 600 kgs , has been seized while it was being transported in two Boleros bearing Registration No. OD-24-7169 and OD-02-AL-9817 and M.Mohan Rao and four accused persons who were in the vehicles tried to escape . M. Mohan Rao, driver of Bolero bearing Registration No. OD-24-7169 and a CICL were apprehended, but three other persons managed to escape. She further submitted that the present petitioners have been arrested on the very next day . As per the prosecution case, Padman Muduli has supplied the ganja and was escorting the ganja in his Bolero which was being transported in the other two vehicles and the Bolero bearing Registration No. OR-05-AM-4772 which was escorting the ganja loaded vehicles has been seized from the petitioner Padman Muduli and the MVI report indicates that he is its owner. She further submitted that as each of the petitioners have one criminal antecedent under Section 20(b)(ii)(C) of the NDPS Act - Chitrakonda P.S. Case No. 57 of 2023 registered under Section 20(b)(ii)(C) of the NDPS Act (Padman Muduli) and Orkel P.S. Case No. 104 of 2019 registered under Section 20(b)(ii)(C) of the NDPS Act (Siba Sankar Khilla), Section 37 of the NDPS Act will be a bar for releasing them on bail.

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 5 of 10

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Perused the status report dated 25.11.2024 of the learned Addl. Sessions Judge -cum- Special Judge, Malkangiri where it is stated that the present petitioners have been arrested on 01.10.2023 along with another accused and the case record has been received on transfer from the learned Sessions Judge -cum- Special Judge, Malkangiri and posted to 09.12.2024 for production of the absconding accused namely M. Arjun @ China Rao and Ganesh Rengali and the trial is yet to commence.

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Section 37 of the NDPS Act is extracted below :- “ Section 37 Offences to be cognizable and nonbailable .-

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(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 6 of 10

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for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail

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(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

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In the case of Tofan Singh (supra), the Supreme Court has answered the reference by interalia holding as follows:

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“(i) That the officers who are 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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(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

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In the case of Union Of India vs. Ajay Kumar Singh @

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Pappu : 2023 SCC Online 346 , the respondent had been arrested on the basis of statements of the co- accused recorded under

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Section - 67 of the NDPS Act. They had stated that he had supplied

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 7 of 10

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the ganja to them. Other cases under the NDPS Act were pending against him. The co accused persons had been released on bail. The respondent-accused has been directed to be released on bail by the High Court on the ground of delay in trial, the decision dated 11.07.2022 of the Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Anr. in SLP(Crl.)No.5191 of 2021 and as the main accused had been granted bail .While cancelling the bail granted to the respondent, the Supreme Court held as follows: -

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“16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.

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17. The quantity of “ganja” recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail rather his antecedents are indicative that he is a regular offender. In the absence of recording of such satisfaction

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 8 of 10

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by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail.”

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After careful consideration of the submissions of the learned counsel, perusing the case diary and the aforesaid decisions, I find that the confessions of the petitioners and confession of the coaccused are not the only incriminating material available against the petitioners. Petitioner Padman Muduli is the owner of vehicle OR05-AM-4772, in which he was escorting the vehicles from which ganja was recovered . Each of the petitioners is involved in a case of similar nature i.e. under Section 20 (b) (ii) (C) of the NDPS Act . I am therefore not prima facie satisfied that they will not commit similar offence if released on bail or that they have not committed the offence. As the requirements of Section 37 of the NDPS Act of the NDPS Act are not satisfied , I am not inclined to allow their prayer for bail .

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In view of the punishment prescribed for the offences, the petitioners are alleged to have committed, and the period spent by the petitioners in custody, I am not convinced that there has been violation of Article 21 of the Constitution of India, so as to grant them bail on the ground of delay in trial .

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 9 of 10

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But as the petitioners are in custody since almost one and

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half years and trial has not started on account of non apprehension of the co accused persons , I direct that if the absconding accused are not arrested within a period of two months, the learned trial court shall split up the trial against the petitioners and other accused who are in custody and proceed with the trial and make an endeavor to dispose of the trial by the end of July 2025 .

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The BLAPLs are dismissed, but liberty is granted to the petitioners to move for bail afresh if the trial is not completed by July 2025.

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Copy of this order be communicated to the learned trial court forthwith, by the Registry .

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(Savitri Ratho) Judge

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Orissa High Court, Cuttack. The 20^th December, 2024. S.K. Behera, Senior Stenographer.

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Signature Not Verified

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Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Feb-2025 19:08:42

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BLAPL No. 8512 of 2024 and BLAPL No. 9650 of 2024 Page 10 of 10

Padman Muduli v. State of Odisha

Case brief

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Padman Muduli v. State of Odisha

Case brief

What is this about?

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