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Suratha Pani ….

Petitioner

-Vrs.-

State of Odisha ….

Opp. party

04.

13.08.2020

For petitioner: Mr.Basudev Pujari

For State : Mr.S.K.Zafrulla

Addl. Standing Counsel

I have heard Mr. B. Pujari, learned counsel for the

petitioner and Mr. Zafurulla, learned Additional Standing

Counsel for the State through Video Conferencing mode.

This is an application under section 439 of Cr.P.C.

for grant of bail to the petitioner-Suratha Pani in

connection with R. Udayagiri P.S.Case No.23 of 2020

corresponding to G.R. Case No.21 of 2020 pending in the

Court of learned Special Judge, Gajapati at Parlakhemundi.

The case has been registered against the petitioner and

four others for commission of offences punishable under

Sections 20(b)(ii)(C)/25/29 of N.D.P.S. Act.

The petitioner had moved an application for bail

before the Court of learned Special Judge, Gajapati,

Parlakhemundi which was rejected on 05.06.2020 interalia

holding that the participation of the petitioner cannot be

prima

facie

overruled and

the alleged quantity

is

commercial quantity.

The prosecution case in brief as per the FIR is that

on 15.03.2020 at 12.15 am, S.I Biswajit Jena the informant

was performing night patrol duty alongwith other staff .

While returning at about 7.00 am, he received reliable

information that one auto-rickshaw bearing registration

number OD-07N-2070 was carrying two men and a lady

and was loaded with ganja bags. They found the auto-

BLAPL No.3923 of 2020

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rickshaw and detained it. One person escaped from the

auto-rickshaw and ran towards the jungle on seeing the

police . The driver alongwith one man and one woman

were found in the auto-rickshaw.They disclosed their

names to be Ajay @ Somanath Raita ( driver cum owner of

the auto-rickshaw) , Bijay Pani and Sandhyarani Patra .

Two jerry bags were found in the auto-rickshaw smelling of

ganja. On being asked , Bijay Pani stated that the previous

night he had collected the ganja from jungle area of nearby

villages alongwith one Suratha Pani and one Daniel Mali

.They were transporting the same to Berhampur by

engaging the auto-rickshaw of Ajay @ Somnath Rait and

the lady had been engaged to sell the ganja and that

Suratha Pani had fled from the auto-rickshaw on seeing

the police team . The mandatory provisions relating to

search and seizure were followed and after arrival of the

Executive Magistrate and weighman , search and seizure

was conducted search was conducted and 10kgs of ganja

was detected in each of the two jerry bags (total quantity of

ganja – 20 Kgs ). Samples were drawn and seizure effected

and the three accused persons were arrested . P.S Case No

23 was registered under S-20(b) (ii) (C) / 25 /29 of the

NDPS Act against the petitioner and four others.

Learned counsel for the petitioner has submitted

that the petitioner is in judicial custody since 23.05.2020

and it is the prosecution case that 20 kgs. of ganja was

seized from the possession of the co accused persons and

nothing incriminating has been seized from the possession

of the petitioner who has been arrested subsequently on

the basis of statements of the co-accused before the police.

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The mobile phone seized at the spot does not belong to the

petitioner . He further submitted that in the meantime, the

investigation has made substantial progress and since the

quantity of ganja alleged to have been seized from the

possession of the co-accused persons is lesser than

commercial quantity, the bar under section 37 of the

N.D.P.S. Act is not applicable and therefore, taking into

account the period of detention of the petitioner in

custody, the prayer for bail of the p