Jitendra Samal @ Jitu … v. ….. Opp. Party Mr.B.K. Ragada, A.G.A. CORAM: JUSTICE SAVITRI RATHO ORDER 31.08.2024 (Through hybrid
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 4202 of 2024 Jitendra Samal @ Jitu ….. Petitioner Mr.Samir Kumar Mishra, Sr. Advocate State of Odisha Vs. ….. Opp. Party Mr.B.K. Ragada, A.G.A. CORAM: JUSTICE SAVITRI RATHO ORDER 31.08.2024 (Through hybrid mode) Order No. 8. 1. This is the 3rd application of the petitioner under Section 439 of Cr.P.C. filed in connection with Angul P.R. Case No.60 of 2023- 24 corresponding to C.T. (Spl.) NDPS Case No.22 of 2023, pending in the Court of the learned Addl. Special Judge, Talcher, registered under Section 21 (b) of the NDPS Act against the petitioner. 2.
Facts
The first application of the petitioner – BLAPL No.10120 of 2023 had been rejected on 24.11.2023 considering that the petitioner has two criminal antecedents of similar nature, liberty had been granted to him to move the learned court below for bail afresh if there is delay in commencement of trial. The second application of the petitioner-BLAPL No.670 of Page 1 of 7 2024 had been dismissed on 12.02.2024 as the trial Court had been moved for bail about one month after disposal of his prayer for bail
Legal Reasoning
by this Court in BLAPL No.10120 of 2023. 3. The prosecution allegation in brief is that on 21.08.2023 at about 5.00 a.m. to 6.00 a.m. the Inspector of Excise, District Mobile Squad, Angul while performing patrolling duty at Talcher Town area, received credible information that the present petitioner was coming from village Deulabeda on a motorcycle bearing registration No. OD-35-A-9950 along with contraband heroin. The informant and his team rushed to the spot and detained the petitioner on the road near Sisumandir at Deulabeda Colony. On search one polythene packet containing 20 grams of heroin were recovered from his exclusive possession. As the petitioner could not produce any license or authority for possessing the same, he was arrested and the heroin was seized. 4. Mr.S.K.Mishra, learned Senior Counsel for the petitioner submits that the petitioner is in custody since 21.08.2023. The allegations against the petitioner are under Section 21 (b) of the NDPS Act, hence Section 37 of the NDPS Act, hence will not be attracted while considering his prayer for bail. He further submits Page 2 of 7 that the petitioner is stated to have two criminal antecedents of similar nature, but he has been released on bail in both the two cases which are under Section 21 (b) of the NDPS Act. He also submits that trial has not progressed after examination of one witness. 5. On 16.08.2024, the learned Senior Counsel for the petitioner had submitted that on 26.07.2024 the I.O. had appeared for her examination but the P.P. did not examine her and on 03.08.2024 the I.O. was not present for which the case was adjourned to 14.08.2024 and on 14.08.2024 although the I.O. was present, the P.P. did not examine her on request of the I.O., for which the matter was adjourned to 05.09.2024 and the scanned copy of the order-sheet of the learned trial court had been called for. It has been received. 6. Perused the order sheet in C.T. (Special) NDPS Case No.22 of 2023. The order sheet reveals that on 26.07.2024, no P.W. was present for which the case was fixed to 03.08.2024 for hearing. But on 03.08.2024, again no witness was present for which the case was posted to 14.08.2024 and summons was directed to be issued to the witnesses. On 14.08.2024, the I.O. was present for adducing evidence, but as the learned Additional Special P.P. filed a petition for time stating that she cannot adduce evidence due to some Page 3 of 7 unavoidable circumstance, the case has been adjourned to 05.09.2024 and the learned defence counsel also filed a petition for issue of summons to the I.O. for evidence on the next date of adjournment. Now the case is posted to 05.09.2024 for hearing and summons has been issued to the I.O. 7. This reveals that there has been delay in the trial which cannot be attributed to the petitioner. 8. Incorrect report regarding the criminal antecedents of the petitioner has again been furnished by the IIC, Talcher P.S. stating that the petitioner was involved only in Talcher P.S. Case No.172 of 2015 under Sections 457/380 of IPC but while hearing BLAPL No.10120 of 2023 it had been found that the petitioner had two antecedents under Section 21 (b) of the NDPS Act, i.e., Talcher P.S. Case No.161 of 2023 and Colliery P.S. Case No.350 of 2022. This report is indicative of the casual and callous attitude of the I.I.C., Talcher Police Station while furnishing the criminal antecedents of the petitioner for the second time in connection with this case. The Superintendent of Police, Talcher is requested to look into the matter and take appropriate remedial measures, so that such lapses do not recur. Page 4 of 7 9. Considering the quantity of brown sugar seized in this case and as the two antecedents of the petitioner involve offence under Section 21 (b) of the NDPS Act, I am of the view that Section-37 of the NDPS Act as not attracted. 10. Considering the nature of allegation against the petitioner, the period spent by him in custody, I am inclined to allow the prayer for bail. 11. The petitioner- Jitendra Samal @ Jitu shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter after verifying that apart from the two cases under Section-21 (b) of the NDPS Act referred to in paragraph-8, he has no criminal antecedent, including the following conditions: (i) He shall not commit any offence while on bail. (ii) He shall not try to influence the witnesses or tamper with evidence while on bail. (iii) He shall appear personally in the trial Court on each date fixed for trial unless his appearance is dispensed with by the learned trial Court for any compelling reason under Section-317 Crl.P.C. Violation of any condition will entail cancellation of Page 5 of 7 bail/recall of this order.
Decision
12. The BLAPL is disposed of. I.A. No. 993 of 2024 13. This application has been filed for releasing the petitioner on interim bail for a period of three months as his mother – Ghati Samal is suffering from multiple erosion in stomach and is needed urgent care and attention and there is no male member in his family to look after her treatment. 14. A report had been called for from the I.O. and on 16.08.2024, Mr.B.K.Ragada, learned Addl. Government Advocate had filed the instructions of the Inspector of Excise District Mobile Squad, Angul wherein it was stated that the prescription annexed to the I.A. regarding ailment of the mother of the petitioner was genuine as Dr.A.R.Swain of Jogomaya Clinic has stated that he has examined the patient (mother of the petitioner) on 16.05.2024 and 30.05.2024 and advised her to take medicines. He had enclosed instructions dated 15.08.2024 of Dr.Ashok Ranjan Swain where he has stated that the patient is under 14 days course of treatment for her ailment. 15. As the prayer for bail has been allowed, this I.A. is disposed Page 6 of 7 of as infructuous. 16. A Copy of this order be supplied to Mr.B.K.Ragada, learned Addl. Government Advocate for onwarad transmission to the Inspector of Excise District Mobile Squad, Angul and to the S.P., Talcher. Bichi (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 04-Sep-2024 19:19:08 Page 7 of 7