BEFORE THE HON’BLE HIGH COURT OF ORISSA,

AT CUTTACK

BLAPL No.___________ of 2020

In CRLA No.332 of 2019
CODE NO._________
In the matter of:
An Application under section 389 of the Code of Criminal Procedure, 1973
for Suspension of sentence pending the appeal and release of the convicted
on bail during the pendency of the present appeal

In the matter of:

An Application in connection with Conviction and order of sentence dated
14.02.2019 passed by the Ld. Sessions Cum Special Judge, Malkangiri,
Distt- Malkangiri in T.R. Case No.09 of 2018 arising out of Mathili P.S.
Case No.06 of 2018.

In the matter of:

Ramesh Chandra Suta @ Ramesh Ch. Suta, Aged about 36 years, S/o Sh
Dhabulu Suta, R/o Village Sankarda, P.S. Kotpad, Distt Koraput
…Applicant/Convict
(Convicted Person now in Judicial Custody)

Versus

State of Orissa. …..…Respondent

Application under section 389 of the Code of

Criminal Procedure for Suspension of sentence
pending the appeal and release of the convicted on
bail during the pendency of the present appeal
against order of sentence dated 14.02.2019 passed
by the Ld. Sessions Cum Special Judge,
Malkangiri, Distt- Malkangiri in T.R. Case No.09 of
2018 arising out of Mathili P.S. Case No.06 of 2018

The matter out of which the present Bail Application arises was
never before this Hon’ble Court in any manner whatsoever as per
the instructions of the Applicant except the Bail Applications
bearing the numbers, BLAPL No. 1744/2018, BLAPL/ 1824/2018
which have been disposed of by this Hon’ble Court.
 To,
The Hon’ble Chief Justice of Orissa High Court and the
Lordship’s Companion Justices of this Hon’ble Court.

RESPECTFULLY SHOWETH:-

1. That the appellant herein has challenged the judgment of conviction and

order of sentence Dtd.14/02/2019 passed by the learned Additional

Sessions Judge-Cum-Special Judge, Malkangiri, in T.R. Case No. 09 of

2018 arising out of Mathili P.S. case No. 06 of 2018. The appellant and

others after being tried for offences under sections 20(b)(ii) (C) of the

Narcotic Drugs and Psychotropic Substances Act were convicted there

under and sentenced to undergo R.I. for 10 (Ten) years and to pay a fine

of Rs. 1,00,000/-(Rupees One Lakh) only each and in default of fine to

undergo R.I. for further period of Six months.

2. That the That the Learned session court has failed to consider that the

alleged recovery was planted upon the accused persons in the police post

and that is evident from the statement of prosecution witnesses i.e. PW

4– Abhimanyu Kope, PW 6- Rabindra Pandhari, PW 7- Tuna sagaria,

PW 8- Arjun Khushani outlined in page numbers.

It is relevant to submit that from the evidence of the prosecution it is

well established that all the documents were signed in the outpost and the

witness did not identified the persons who was allegedly sitting in the

vehicles thus the alleged recovery was planted in the Outpost and the

independent Witnesses has turned hostile namely PW 1- Rajan Raula and

PW 2 Maheshwar Ganda Page 35 & 36.

Copies of the statements of the PW 1, PW 2, PW 4, PW 6 to 8 are

herewith annexed as Annexure A-1 to A-6 respectively. [Outlined in

page number 35, 36 38, 41, 43 & 45 of the LCR]

3. That the Learned Sessions Court has not appraised the legal parameters

of section 50 of NDPS as the prosecution witnesses had established the

fact that the Executive Magistrate was present on the alleged spot of

Recovery much prior to the information received in the police outpost

creating a serious suspicion on the recovery of the alleged contraband

from the accused persons. It is relevant to submit that the PW 4, PW 6,

PW 7 & PW 8 have deposed that the Executive Magistrate arrived at the

said spot at 0130 hrs and the PW 13 has deposed that the Executive

Magistrate has signed the documents at the Outpost. The alleged

recovery has not been proved by the Addl Tehsidar PW 16 (Pg 59) as he

has failed to disclose the weight of the alleged recovery.

It is for the pointed attention of this Hon’ble Court that the PW 20 SI

Somnath Delabehra himself admitted in his Cross Examination (Pg 65)

that the Mal items were kept in the PS Malkahan till 15.01.2018 but there

is no explanation as to where the contraband was kept after 15.01.2018

till 19.01.2018 and further admitted that the report of RFSL is not

available in the Record File which duly establishes the fact that the

prosecution has failed to prove its case beyond all reasonable doubt. It

has been further admitted that the receipt of RFSL certificate is not on

record alongwith the Chemical Examination Report. He further, admitted

that the prosecution has failed to examine Krishna Ch. Dumali who had

allegedly taken up the samples to the RFSL and had produced the alleged

receipt from RFSL and further in absence of this witness the prosecution

has failed to bring cogent and clinching evidence regarding the alleged

recovery to be a contraband.

Copies of the statements of the PW 13, PW 16 & PW 17 are

herewith annexed as Annexure A-7 to A-9 respectively.

4. That the Learned sessions judge had failed to take note that the station

dairy entered as dated 11.01.2018 on the seizure memo but the story of the
 prosecution was that the information was received on 12.01.2018 at about

5 am and the SI was at the outpost. It is relevant to submit that the

information received at Police Station was at about 6 PM and the

possibility of tampering the alleged recovery by the police officials cannot

be ruled out as the alleged Ganja was seized after 2 P M and the PW 5

weighman [Pg 40 of the LCR] who had weighted the alleged contraband

turned hostile. Thus, from the above stated facts the procedure for sealing

the alleged contraband has not been proved and created a suspicious

regarding the version of prosecution. A copy of the statement of the PW 5

is herewith annexed as Annexure A-10.

5. That the prosecution has failed to produce the Malkahana Munshi before

the Ld. Sessions Court to prove the safe custody of the contraband but the

same is not duly proven by the prosecution as there is no explanation for

the delay in sending the samples to RFSL. The above stated fact has also

been duly admitted by the PW-20 as he admitted that the Malkhana in

charge of the police station has not been examined (pg 65). Delay as per

prosecution was sent by KC Dumali who has not been examined and

further it remained unexplained that the alleged contraband has not been

tampered with, to prove its safe custody. A copy of the statement of the

PW 20 is herewith annexed as Annexure A-11.

6. That the learned Sessions Court has not considered that the prosecution

has failed to establish and prove any RFSL report alleging the alleged

recovery as Ganja. In the present case, the admitted position is that the

contents of the RFSL report have not been proved by the prosecution and

has failed to examine the chemical examiner who has allegedly conducted

the chemical analysis of the alleged samples and as such, the learned Trial

Court could not have relied on the prosecution story merely because of a

Chemical Report. In the present case the prosecution has failed to

establish that the contraband which was seized by the raiding party was
 Ganja. It is relevant to mention that non-examination of the Chemical

Report. It is relevant to submit that in the present case is fatal to the

prosecution case. It is further submitted that non-examination of the

Chemical Analyzer is fatal to the prosecution case and on that ground

alone the Appellant deserves to be acquitted of charges which are levelled

against him.

7. That the Hon’ble Session Court has not appreciated the Law laid down by

the Apex Court in Mohan Lal (supra) and Varinder Singh Vs State of

Himachal Pardesh wherein Hon’ble Apex Court hold that all pending

criminal prosecutions, trials and appeals prior to the law laid down in

Mohan Lal (supra) shall continue to be governed by the individual facts of

the case and the present case challan / trail was conducted after the

judgement of Mohan lal (supra). Thus, the Ld. Sessions Court failed to

considered that in the present case the complainant i.e. Parvat Kumar

Behera is the IO of the case and has seized the alleged contraband and had

conducted the alleged proceedings.

8. That it is respectfully submitted that the matter is pending before this

Hon’ble Court for adjudication. More so more, the custody of the

Applicant would not serve any purpose. The Applicant undertakes to

adhere to the directions issued by this Hon’ble Court in due course of the

present proceedings.

9. That the Applicant had approached the Hon’ble High Court vide

Applications bearing the numbers BLAPL No. 1744/2018, BLAPL/

1824/2018 and the said Application are already disposed of no such

application is pending before this court, the Hon’ble High Court of Orissa

or any other Court of law.

10. That the Applicant is ready and willing to abide by any terms and

conditions which this Hon’ble Court may deem fit to impose upon the
 Applicant and further undertakes not to tamper with the prosecution

evidence in any manner.

PRAYER

It is therefore respectfully prayed that keeping in view the peculiar facts

and circumstances of the present case and in the interest of justice, equity and fair

play the Applicant may kindly be granted the concession of bail in T.R. Case

No.09 of 2018 arising out of Mathili P.S. Case No.06 of 2018, in which the

Applicant has been falsely implicated.

AND/OR

To pass any other order or direction which this Hon’ble Court may

deem fit, in the facts and circumstances of the present case.

Place:
Dated:
(SUDESH KUMAR PANDEY & MADAN SUNDAR BEHERA)
A D V O C A T E/ S
COUNSEL/S FOR THE APPLICANT/S
 BEFORE THE HON’BLE HIGH COURT OF ORISSA,
AT CUTTACK

BLAPL No.___________ of 2020

CODE NO._________
In the matter of:
Ramesh Chandra Suta @ Ramesh Ch. Suta, Aged about 36 years, S/o Sh
Dhabulu Suta, R/o Village Sankarda, P.S. Kotpad, Distt Koraput
…Applicant/Accused

Versus

State of Orissa. …..…Respondent

INDEX

Sr.no Document Date Page No

1 Application for Bail
2 Affidavit in Support
3. Annexure P-1 (Statement of PW 1)
4. Annexure P-2((Statement of PW 2)
5. Annexure P-3 (Statement of PW 4)
6. Annexure P-4 (Statement of PW 6)
7. Annexure P-5 (Statement of PW 7)
8. Annexure P-6 (Statement of PW 8)
9. Annexure P-7 (Statement of PW 13)
10. Annexure P-8 (Statement of PW 16)
11. Annexure P-9 (Statement of PW 17)
12. Annexure P-10 (Statement of PW 5)
13. Annexure P-11 (Statement of PW
20)
14 Power of Attorney

Note: Affidavit of the ________________________ is attached.

Place:
Dated:
(SUDESH KUMAR PANDEY & MADAN SUNDAR BEHERA)
A D V O C A T E/ S
COUNSEL/S FOR THE APPLICANT/S