JUSTICE v. NARASINGH ORDER
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 5405 of 2023 Prahallad Khila & Another …. Petitioners Ms. M. Mohanty, Advocate -versus- State of Odisha …. Opposite Party Mr. T.K. Praharaj, SC CORAM: JUSTICE V. NARASINGH
Decision
ORDER 29.01.2024 Order No. 06. 1. Heard learned counsel for the Petitioners and learned counsel for the State. 2. The Petitioners are accused in connection with Special G.R. Case No.79 of 2022 pending on the file of learned Sessions Judge-cum-Special Judge, Malkangiri, arising out of Chitrakonda P.S. Case No.59 of 2022 for commission of offence alleged under Sections 20(b)(ii)(c) of the NDPS Act. 3. Learned counsel, on instruction, submits that except the present BLAPL, no other bail application of the Petitioners relating to the aforementioned P.S. Case is pending in any other Court. 4. Being aggrieved by the rejection of their application for bail U/s.439 Cr.P.C. by the learned Special Judge, Malkangiri by order dated 27.02.2023 in the aforementioned case, the present BLAPL has been filed. 5. This is the second journey of the Petitioners to this Court. It is apt to note that the earlier bail application of the Petitioners which was during the course of investigation was rejected by order Page 1 of 4 dated 02.11.2022 in BLAPL No.10088 of 2022 and order dated 24.01.2023 in BLAPL No.11843 of 2022 respectively. 6. The allegation against the Petitioners is that they along with the co-accused were found to be in possession of contraband to the tune of 17Quintals 800gms (Ganja). 7. It is stated that since charge sheet has already been filed and the trial is lingering, the Petitioners may be released on bail. 8. It is the further submission of the learned counsel for the Petitioners that in the case of the co-accused namely, Chandra Khilla and another and Sona Khilla by order dated 02.08.2023 in BLAPL Nos.4955 & 5233 of 2023 respectively, this Court called upon the learned Court in seisin to conclude the trial within a period of four months from the date of receipt/production of the said order. 9. Since the trial has not been concluded within the time frame, learned counsel for the Petitioners seeks release on the ground of long incarceration and violation of the Petitioners right to speedy trial, relying on the judgment of the Apex Court in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 SCC OnLine SC 352. 9-A. Learned counsel for the Petitioners has also relied on the order passed by the Coordinate Bench of this Court dated 18.01.2024 in BLAPL No.6120 of 2023 relying on the judgment of the Apex Court in the case of Mohd. Muslim @ Hussain (Supra) and seeks release on the basis of reasoning in the said orders. 10. Learned counsel for the State opposes the prayer for bail and submits that in view of the bar contained in Section 37(1)(b)(ii) of NDPS Act, the Petitioners ought not to be released on bail and on the basis of statement of the official as well as independent witnesses, it is stated that there are materials to indicate that the Petitioners are in conscious and exclusive possession of the same. Page 2 of 4 11. To fortify his submission, he draws the attention of this Court to the conduct of the Petitioners which according to the learned counsel for the State is a relevant factor. 12. Since the matter is pending trial, this Court refrains from expressing any opinion regarding the submission made by the learned counsel for the Petitioner. 13. It is trite law that a judgment has to be applied in the facts of a particular case. There can never be any argument regarding the sacred right of an accused to speedy trial but while doing so the right of the accused and the societal interest has to be balanced and more so in a case under the Special Act where grant of bail is an exception. (Ref:- State of Madhya Pradesh vs. Kajad, (2001) 7 SCC 673) 14. On a bare perusal of the judgment of the Apex Court in the case of Mohd. Muslim @ Hussain (Supra), it can be seen that the basis of accusation in the said case was on account of co-accused statement. The relevant extract of paragraph-18 of the said judgment is culled out hereunder for convenience of ready reference:- “The facts in this case reveal that the recovery of ganja was made on 28.09.2015, from the four co- accused, including Nitesh Ekka. The present appellant was arrested at the behest, and on the statement of this Nitesh Ekka…...” 15. Ex-facie the Petitioners are not similarly placed with the accused in the case decided by the Apex Court. This Court is not persuaded by the order passed by the Coordinate Bench and it is stated with humility that the facts situation in the case at hand is different from the one which engaged the attention of the Coordinate Bench. Page 3 of 4 16. A communication has been received from the learned Court in seisin dated 25.01.2024 indicating that inadvertently extension of time has not been sought as the trial could not be concluded within the time fixed in terms of the earlier order passed and it has been indicated therein that out of 23 charge sheeted witnesses, 8 witnesses have been examined and the case is now posted to 07.02.2024 for further hearing and the learned Court in seisin has sought three months time to conclude the trial. 17. Considering the nature of allegations and the progress in trial notwithstanding that the Petitioners are in custody since 11.05.2022, keeping in view the rigors of Section 37(1)(b)(ii) of NDPS Act and on the basis of materials on record, this Court is persuaded to hold that there is prima facie case against the Petitioners. Hence, the bail application of the Petitioners do not merit consideration. 18. 19. Accordingly, the BLAPL stands rejected. Learned Court in seisin is called upon to conclude the trial within a period of three months as sought, from the date of receipt/production of copy of this order. 20. In the event trial is not concluded within a further period of three months as prayed for, liberty is granted to the Petitioners to renew their prayer before the learned Court in seisin. 21. Learned counsel for the State is requested to ensure the presence of the witnesses on the date fixed so that the trial can be concluded within the time frame as fixed. 22. This direction has been issued keeping in view that the Petitioners are in custody since 11.05.2022. Registry is requested to communicate this order. 23. Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Jan-2024 13:45:55 (V. NARASINGH) Ayesha Judge Page 4 of 4