The High Court
Case Details
Order No. 05. IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.1540 of 2023 Bapita Majhi State of Odisha …. Petitioner Mr. Anirudha Das, Advocate -versus- …. Opp. Party Mr. P.C. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 11.05.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the State-Opposite Party. Perused the materials placed before this Court. 3. The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection with C.T. Case No.16 of 2021, arising out of Balliguda P.S. No.47 of 2021, pending in the Court of learned Special Judge-cum-Additional Sessions Judge, Balliguda for alleged commission of offences punishable under Sections 20(b)(ii)(C) and 29 of the N.D.P.S. Act, 1985. 4. This is the third journey of the Petitioner to this Court. On the earlier occasion, the bail application of the Petitioner, i.e. BLAPL No.8476 of 2021 was disposed of as withdrawn vide order dated 16.03.2022 with liberty to the Petitioner to move a fresh bail application after framing of charge. Again the Petitioner moved this // 2 // Court by filing BLAPL No.2980 of 2022 which was disposed of vide order dated 05.08.2022 by directing the trial court to conclude the trial within three months, failing which the Petitioner was granted liberty to move the fresh application before the court below. Since the trial is not concluded within the aforesaid time, the Petitioner moved an application for bail before the court below and such bail application having been rejected by the court below, the present bail application has been filed. 5. The factual background of the case, in a nutshell, is that on 12.03.2021 at 2.00 P.M., while the Informant-S.I. of Police, Balliguda Police Station along with other staff was performing day patrolling duty around village Sindrigan, Sautikia, Kutikia and nearby village area under Balliguda P.S. jurisdiction, at about 04.15 P.M. when she was near Sindrigaon Bridge on Badgaon-Sindrigaon Road one of her source came to her and secretly intimated that some persons are waiting in the field by the said of the road in a lonely place with some large size bags suspected to be ganja. Then she immediately proceeded to the alleged spot with her staff to verify the veracity of the information. In just 2-3 minutes they entered in the field from the road side and saw that two persons are waiting with some large size jerry bags at a distance of 50 mtrs on the other side of the open place filled with small buses. Seeing the Informant and her staff, they tried to flee from the spot as the approached towards them. One person was caught by her staff but another could escape from the spot getting the opportunity of bushes. On being asked the person disclosed his identity as Bapita Majhi (the Petitioner) and informed the name of the absconding person from the spot as Bijaya Majhi @ Nayak. He confessed that they both were waiting there with 3 ganja bags by collecting from different tribal villages and hiding // 3 // them near the bushes to further take the ganja bags to Balliguda side for transportation purpose. The contraband ganja filled three jerry bags came to 40.00 kg., 40.800 kg. and 23.00 kg. each were seized. So, the accused person has been arrested and forwarded to the Court. 6. It is submitted by the learned counsel for the Petitioner that the Petitioner is in custody since 12.03.2021, i.e., more than two years. He further submitted that despite the direction given by this Court, trial has not been concluded. Learned counsel for the Petitioner also submitted before this Court that there is contraband article seized from the public road side where the Petitioner was standing. He further contended that the fact of exclusive and conscious possession of the Petitioner with regard to the seized contraband article was not been established by the prosecution. In such view of the matter, learned counsel for the Petitioner submitted that even though the seized contraband article is weighting around 103 kgs., the bar under Section 37 of the N.D.P.S. Act would not attract to the facts of the present case. 7. Learned Additional Standing Counsel appearing for the State- Opposite Party, on the other hand, opposed the prayer for bail of the Petitioner on the ground that around 103 Kgs. of contraband Ganja have been recovered from the Petitioner. Taking into consideration the quantity of Ganja seized, learned Additional Standing Counsel submitted that bar under Section 37 of the N.D.P.S. Act is attracted to the facts of the present case. He further submitted that the cases of illegal transportation of contraband Ganja are on rise in State of Odisha now-a-days. However, the release of the Petitioner at this stage would create hindrance for early conclusion of the trial. Therefore, he submitted that the prayer for bail of the Petitioner be rejected at this juncture. // 4 // 8. So far delay in trial is concerned, this Court called for a report from the learned Special Judge-cum-Additional Sessions Judge, Balliguda. A report dated 31.03.2023 has been forwarded by the Court in seisin over the matter in this case to this Court, which is on record. On perusal of the same, it appears that out of 20 charge sheet witnesses, only five witnesses have been examined so far. Accordingly, this Court is of the prima facie view that there is unnecessary delay in examining the witnesses and this case is of the year 2021. 9. In view of the aforesaid background, this Court is of the considered view that there is unnecessary delay of trial, which affects the right of the Petitioner for an expeditious trial as has been guaranteed under Article 21 of the Constitution of India. So far bar under Section 37 of the N.D.P.S. Act is concerned, the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023) has held that if there is unnecessary delay in trial which affecting the rights of the accused- Petitioner as guaranteed under the Constitution of India, then the bar under Section 37 of the N.D.P.S. Act is not attracted. 10. Having heard the learned counsel for the parties and upon a careful examination of the material placed before this Court including the case diary and further keeping in view the fact that the Petitioner is in custody for more than two years and only five witnesses in this case have been examined so far and the bar under Section 37 of the N.D.P.S. Act is not applicable to the facts of the present case, this this Court is inclined to release the Petitioner on bail. 11. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/-(Rupees // 5 // fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter . The release of the Petitioner shall also be subject to such terms and conditions as would be filed by the Court in seision over the matter. 12. It is further directed that the bail granted to the Petitioner is subject to the condition that the court below shall verify whether the Petitioner has any criminal antecedent of similar nature. In the event it is found that the Petitioner has any criminal antecedent, this bail order shall automatically stand revoked. 13. The BLAPL is, accordingly, disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 18-May-2023 12:32:27