IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos. 1957 of 2024 & 1958 of 2024 Applications under Section 482 of the Code of Criminal Procedure arising out C.T. Case No 29 of 2021 in the Court of the Special Judge -

cum- Additional Sessions Judge, Balliguda .

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CRLMC No.1957 of 2024 Bi chitra Dalai @ Dalei ….. Petitioner -versus-

State of Odisha ….. Opposite Party CRLMC No.1958 of 2024 Sunil Kumar Dalai @ Sunil Dalai ….. Petitioner -versus-

State of Odisha ….. Opposite Party For Petitioners : Mr. Anirudha Das, Advocate (In both CRLMCs)

For Opp. Party : Mr. Udit Ranjan Jena, (In both CRLMCs) Addl. Government Advocate --------------------------------------------------------------------------------

CORAM:

HON’BLE MISS JUSTICE SAVITRI RATHO

JUDGMENT

15.05.2025 Savitri Ratho, J. These two CRLMCs have been filed, challenging the initiation of proceedings pursuant to Baliguda P.S. Case No.82 of 2021 corresponding to CT Case No.29 of 2021 in the Court of the learned Special Judge-cum-Addl. Sessions Judge, Balliguda, under Sections 20(b)(ii)C, 25 and 29 of the NDPS Act. The further proceedings and the charge-sheets filed in these cases have also been challenged.

2. F.I.R. in the case was filed on 18.05.2021 against the petitioners in both the applications. After completion of investigation, charge-sheet dated 14.11.2021 has been filed and trial against the petitioners has commenced for the offence under Section 20(b)(ii)C of Narcotic Drugs and Psychotropic Substances Act.

FACTUAL MATRIX

3. The case in brief is that on 18.05.2021 at about 12.05 PM as per the direction of the I.I.C., Baliguda P.S., the informant, along with other police officials while performing patrolling duty for Covid-19 Enforcement in Sindrigaon, received reliable information from a source that some persons were hoarding huge quantity of ganja inside the jungle for transportation to different places, so unless immediate raid was conducted, the ganja would be shifted or disposed of. Therefore, the informant proceeded to the spot with other police officials. On reaching the spot, they saw a Bolero bearing registration number 02 AU 9867 with its back door open. Three bags had been kept in the Bolero and one person was standing guard. Two other persons were sorting the bags and covering the same with branches. On seeing the police, they tried to escape. One person, who was sorting the bags was caught while the two others escaped. 16 jerry bags which were being sorted were seized as well as the three bags from the Bolero. The person who was caught at the spot during interrogation, divulged his name to be Arjuna Pujari and disclosed the names of the petitioners and stated that they had fled from the spot. The contraband ganja was seized and FIR was registered against him and the present petitioners.

SUBMISSIONS

4. Mr. Anirudha Das, learned counsel for the petitioners submits that the petitioners were not apprehended from the spot . They have been named in the FIR in Baliguda P.S. Case No.82 of 2021, on the basis of the statement of co accused Arjuna Pujari, who was arrested on the spot and allegedly stated before the police that these petitioners had fled from the spot on arrival of the police. He submits that other than the confession of the co-accused, which is not admissible in evidence, there is no other materials to link the petitioners with the seizure of about 400 kilograms of Ganja.

5. Relying on the decision in the case of Tofan Singh v. State of Tamil Nadu, reported in (2021) 4 SCC 1, he submits that the Supreme Court has decided the reference holding that on the basis of statement of the co-accused, conviction cannot be sustained as such confession is not admissible in evidence. Relying on the decision of the Supreme Court in the case of Yusuf @ Asif v. State, reported in (2023) 92 OCR (SC)-895 he submits that as the procedure under Sections 52A and 57 of the NDPS Act have not been followed during search and seizure, the alleged contraband seized during the seizu