The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.4141 of 2023 Kasa @ Kosa Madkami State of Odisha -versus- CORAM: …. Petitioner Mr. P.K. Nanda, Advocate …. Opposite Party Mr. P.C. Das, A.S.C. JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 20.07.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner and learned counsel for the State. Perused the F.I.R., case diary and other relevant documents as well as statement of the witnesses. 3. This is an application under Section 439 of the Criminal Procedure Code. 4. The Petitioner is an accused in Special G.R. Case No.68 of 2021 of NDPS arising out of Malkangiri P.S. Case No.286 of 2021 pending in the court of learned Sessions Judge-cum-Special Judge, Malkangiri for commission of offence punishable under Sections 20(b)(ii)(C)/25 of the N.D.P.S. Act. 5. As per the F.I.R., it is alleged that on 27.07.2021, the police officials while blocking duty, found that one Bolero was coming at Chalanguda. Thereafter, the police officials detained the vehicle and at that point of time driver fled away from the spot. It is alleged that // 2 // the police officials found that ganja was kept in packet in the secret chamber. Thereafter, on enquiry it is found that the petitioner was transporting such materials in order to sell it on higher price. Thereafter, the Police made seizure in presence of the witnesses and during the search the police found 42 Kgs. 800 grams of contraband ganja and after all the formalities of NDPS Act and seized the contraband articles and drew the F.I.R. 6. It is submitted by learned counsel for the Petitioner that the petitioner is in custody since 28.07.2021.2021 and he has been falsely implicated in the present case. He further submits that the investigation in the case has been concluded and charge-sheet has already been submitted. Further, he submits that the petitioner undertake not to tamper with the prosecution evidence and not to make any attempt to threaten the witnesses, in the event he is released on bail. Hence, he may be released on bail. Further, it is submitted by learned counsel for the petitioner that the petitioner does not have any criminal antecedents in similar nature. Out of 21 charge-sheeted witnesses, nine witnesses have already been examined by the prosecution. 7. In the aforesaid context, learned counsel for the petitioner referred to the judgment of the Hon’ble Supreme Court in the case in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal No.6690 of 2022, decided on 25.01.2023) as well as by a detailed judgment in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023. In the case of Mohd Muslim @ Hussain. Referring to the aforesaid two judgments, learned counsel for the petitioner submitted that delay in conclusion of trial affects the valuable rights of the petitioner in the // 3 // Constitution of India. 8. Learned Additional Government Advocate, on the other hand, opposes the release of the Petitioner on bail. He further submits that such types of crime are rampant in the State and no leniency should be shown to the petitioner or similarly situated persons. Accordingly, learned Additional Government Advocate prays for rejection of the bail application of the Petitioners. 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. Therefore, he further contended that the Petitioner should not be enlarged on bail. It is also contended by the learned Additional Standing Counsel that the release of the Petitioner at this stage would cause delay in conclusion of the trial. 9. Having heard the learned counsel for the respective parties and upon a careful consideration of the surrounding facts and circumstances of the case and keeping in view the period of detention of the petitioner and further the examination of prosecution witnesses is yet to commence, this Court is of the considered view that the delay in conclusion of the trial has to be kept in mind while considering the bar under Section 37 of the N.D.P.S. Act. The embargo created under Section 37 of the N.D.P.S. Act is no doubt required to be kept in mind of the Court and the same is required to be considered while considering the bail application of the accused- Petitioner, however, the right of the accused under Article 21 of the Constitution of India for an early trial being a constitutional guarantee to every citizen is also required to be considered while applying the bar under Section 37 of the N.D.P.S. Act. The view of this Court gets support from the order passed by the Hon’ble // 4 // Supreme Court in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal No.6690 of 2022, decided on 25.01.2023) as well as by a detailed judgment in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023. In the case of Mohd Muslim @ Hussain (supra), the Hon’ble Supreme Court has specifically considered the impact of bar under Section 37 of the N.D.P.S. Act while releasing the Petitioner on regular bail. Paragraphs-19 and 20 of the said judgment, which are relevant for the purpose, are quoted hereinbelow:- “19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. 20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act // 5 // too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.” 10. In view of the aforesaid analysis of law and the authoritative pronouncements of the Hon’ble Supreme Court, this Court is of the considered view that the Petitioner be extended on similar benefit on the ground of delay and, accordingly, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.30,000/-(Rupees thirty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further conditions that :- (i) The Petitioner shall not be involved in any offence of similar nature; (ii) he shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever; (iii) he shall not make any default in attending the court during trial; (iv) he shall appear before the concerned Police Station once in a fortnight preferably on ‘Sunday’ in between 10.00 A.M. to 1.00 P.M. till conclusion of trial; and (v) he shall not leave the jurisdiction of the Court in seisin over the matter without prior permission of the Court in seisin over the matter. Violation of any of the terms and conditions shall entail cancellation of bail. // 6 // 11. It is open for the Court in seisin over the matter to impose any other conditions as may be deemed just and proper. 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. It is made clear that if the Petitioner fails to attend the court on the date fixed on a single occasion, this order shall stand automatically revoked and the court below is at liberty to issue N.B.W. against the Petitioner forthwith. 14. The Bail Application is accordingly disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 21-Jul-2023 18:23:21