The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.7445 of 2024 Lipu Behera ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. - Biswa Abhusan Das Opposite Parties Represented By Adv. – Mr.M.K.Mohanty, ASC BLAPL No.7510 of 2024 Papu @ Soubhagya Ranjan Singh ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. – Devashis Panda Opposite Parties Represented By Adv. – Mr.M.K.Mohanty, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 27.09.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
Legal Reasoning
2. Heard learned counsels appearing for the Petitioners and learned Additional Standing Counsel appearing for the State- Opposite Party. Perused the materials placed before this Court. Page 1 of 9. Order No. 02. 3. The abovenoted bail applications under Section 483 of BNSS have been filed by the Petitioners for regular bail in connection with G.R.(Spl.)Case No.14 of 2021 arising out of Madhupatna P.S.Case No.123 of 2021 pending in the Court of learned Additional District & Sessions Judge, Cuttack, for alleged commission of offences punishable under Sections 21(C) of N.D.P.S.Act. Since both the bail applications arise out of same P.S.Case and G.R.Case involving self-same facts both bail applications were heard together and being disposed of by this common order. 4. It is submitted by the learned counsel for the Petitioners that earlier this matter was not before any other Bench of this Court. It was further submitted that the Petitioners have been in custody since 02.06.2021. He further contended that although the investigation has been concluded in the meantime and the final Charge Sheet has been filed, however, the trial is progressing at snail’s pace. Learned counsels for the Petitioners contended that out of the 33 (Thirty Three) Charge Sheeted witnesses, only four witnesses have been examined so far i.e., after expiry of three and half years since the date of arrest of the Petitioners. 5. So far as the factual background of the present case is concerned, the F.I.R. reveals that the S.I. of Police, namely Saraswati Sahoo, lodged a written report before the I.I.C., Madhupatna P.S. alleging therein that on 02.06.2021 at about 2.07 P.M. upon receiving information regarding sale of contraband articles, the Police team proceeded to the spot and found the present Petitioners and on search they Page 2 of 9. recovered from the possession of the Petitioners 303 grams and 405 grams of brown sugar by following the due procedure. Thereafter the Petitioners were taken into custody and they have been languishing in custody since 02.06.2021. 6. Learned counsels for the Petitioners at the outset contended that although the Petitioners have been languishing in custody since 02.06.2021 and investigation has been concluded in the meantime and the trial has commenced, however only four witnesses have been examined so far out of 33 Charge Sheeted witnesses. They further contended that considering the speed with which the trial is progressing, it appears that the trial will eventually be concluded after several decades. It was further submitted that the Petitioners, at this point, have been in custody for almost three and half years. In course of his submission, learned counsels for the Petitioners referred to the judgment of the Hon’ble Supreme Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi): 2023(1) OLR ( SC) 959, 23023 SCC Online 352 and submitted before this Court that a valuable right has accrued in favour of the Petitioners to be released on bail in view of Article 21 of the Constitution of India as has been observed by the Hon’ble Supreme Court of India in the aforesaid judgment. 7. They would further argue that in a case where the trial is unnecessarily delayed, mostly due to the failure on the part of the prosecution to procure the attendance of the witnesses, especially where the witnesses are mostly official witnesses, the petitioners are to be enlarged on bail in view of the constitutional guarantee under Article 21 of the Constitution of Page 3 of 9. India. Additionally, it was submitted that the constitutional provision under Article 21 guarantees along with liberty to every citizen a right to fair and speedy trial, and the same definitely overrides the bar under section 37 of the NDPS Act., particularly in such cases where the trial is getting unnecessarily delayed due to non-attendance of the official witnesses. In the present cases, considering the fact that despite expiry of three and half years from the date of the Petitioners being taken into custody only four witnesses have been examined, and the same confirms the allegation that the trial is progressing at a snail’s pace. In the course of their submission, reliance was also placed on the judgment of the Hon’ble Supreme Court in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal No.6690 of 2022 dated 25.01.2023) as well as Rabi Prakash v. The State of Odisha (Special Leave to Appeal (Crl.) No.(s) 4169/2023 decided on 13.07.2023). 8. Learned counsels for the Petitioners, further drawing attention of this Court to the order passed earlier by this Court on 11.01.2024, contended that while considering the bail application of the Petitioners, this Court had specifically referred to the judgments of the Hon’ble Supreme Court referred to hereinabove. Additionally, learned trial court was directed to conclude the trial as expeditiously as possible preferably within a period of six months from the date of communication of order dated 11.01.2024. 9. After filing of the present bail applications this Court vide order dated 05.08.2024 had called for a report from the 1st Page 4 of 9. Additional District and Sessions Judge, Cuttack with regard to progress of the trial and status of G.R.(Spl.)Case No.14 of 2021 corresponding to Madhupatna P.S.Case No. 123 of 2021 out of which the present applications arise. The record further reveals that a status report has been submitted by the 1st Additional District & Sessions Judge vide letter dated 23.08.2024. On perusal of the status report dated 23.08.2024, this Court observes that out of a total of 33 prosecution witnesses, so far only four witnesses have been examined, one witness has been declined by the prosecution and one witness has been declared not traceable. Therefore, it stands established that only four witnesses have been examined within a span of three and half years’ time. 10. Considering the status report of the learned 1st Additional District & Sessions Judge, Cuttack, this Court is of the view that the same is a glaring example of the fact as to how the case has been handled by the prosecution. In a case under the provision of N.D.P.S. Act most of the witnesses are official witnesses and in the present case only four witnesses have been examined within a span of three and half years. Such fact reveals a lack of sincerity on the part of the prosecution to take the trial to its logical conclusion by producing the official witnesses for their examination in this case. This Court is also of the view that it is high time that the State Government considers the matter with utmost seriousness and ensures that the appearance of official witnesses is secured before the trial court on the basis of the summons issued by the court in these types of cases. Moreover, in the State of Odisha, official Page 5 of 9. witnesses are being permitted to appear through virtual mode. Therefore, a stand cannot be taken by the State that the official witnesses are busy in some other work or are out of station or have been transferred in the meanwhile. On an overall consideration of the present scenario, this Court is of the view that issue of non-appearance of the official witnesses before the trial court in these types of cases is a serious one, and needs to be addressed promptly. Keeping in view the fact that the cases of illegal drug trafficking is on the rise in the State of Odisha, 11. Coming back to the facts of the present case, it appears that the Petitioner in BLAPL No.7445 of 2024, namely Lipu Behera, and the Petitioner in BLAPL No 7510 of 2024, namely Papu @ Soubhgya Ranjan Singh, were arrested on 02.06.2021 and, a total quantity of 303 grams and 405 grams of brown sugar, respectively, has been recovered from the possession of said petitioners. Although allegation contained in the F.I.R. is serious in nature however the same is to be considered keeping in view the constitutional right of the accused persons guaranteed under Article 21 of the Constitution of India and as has been observed by the Hon’ble Supreme Court in the aforesaid two judgments. 12. Learned Additional Standing counsel appearing for the State on the other hand objected to the release of the Petitioners on bail on the ground that the Petitioners were arrested at the spot with the allegation of possession of contraband article which is more than the commercial quantity. As such, the bar under section 37 of the N.D.P.S. Act would Page 6 of 9. be squarely applicable to the facts of the present case. Furthermore, since the trial is on-going, release of the petitioners at this stage might cause further delay in conclusion of trial. On such grounds, learned Additional Standing Counsel submitted that the bail application of the Petitioners be rejected at this juncture with further direction to the trial court to expedite the trial as expeditiously as possible. 13. On a careful analysis of the factual background of the present case and taking note of the fact that the Petitioners have been languishing in custody since 02.06.2021 and, only four witnesses have been examined out of 33 Charge Sheeted Witnesses, and by applying the principles laid down by the Hon’ble Supreme Court in the aforesaid judgments in Mohd. Muslim @ Hussain v. Statte (NCT of Delhi): 2023(1) OLR ( SC) 959, 23023 SCC Online 352 and Dheeraj Kumar Shukla v. The State of Uttar Pradesh ( Special Leave Appeal No.6690 of 2022 dated 25.01.2023) as well as Rabi Prakash v. The State of Odisha (Special Leave to Appeal (Crl.) No.(s) 4169/2023 decided on 13.07.2023) this Court is inclined to release the Petitioners on bail on certain stringent conditions. 14. Hence, it is directed that each of the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/-(Rupees Fifty thousand) each with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter. Release of the Petitioners shall also be subject to the following conditions: Page 7 of 9. i. shall not indulge in similar nature of offence while on bail; ii. shall appear before the trial court on each and every date fixed without fail; iii. shall appear before the local P.S. once in a fortnight, preferably on a Sunday between 10 A.M. to 1 P.M. for a period of six months or till conclusion of trial; iv. shall not leave the State of Odisha without the permission of the court in seisin over the matter. Violation of the conditions shall entail automatic cancellation of bail granted to the Petitioners vide the present order. 15. It is further directed that the bail granted to the Petitioners is subject to the condition that learned court below shall verify whether the Petitioners have any criminal antecedent of similar nature. In the event it is found that the Petitioners are having any criminal antecedent of similar nature involving offense under the NDPS Act, then this bail order shall automatically stand revoked. 16. Before parting, this Court would like to express its anguish and dissatisfaction with regard to the fact that of late it is a common problem in most of the trials that official witnesses, some cases they are the prime witnesses, are not appearing before the learned Trial Courts which is a matter of real concern and such non-appearance, despite several summons being issued to them, is one of the major reason for unnecessary prolongation of trials contrary to the constitutional Page 8 of 9. guarantee under Article-21 of the Constitution of India. It is high time that effective steps be taken by the State to ensure appearance of such witnesses (virtual/physical) before the trial courts. Registry is directed to place a copy of this order before the Honourable Chief Justice. With the kind consent of the Honourable Chief Justice a copy of this order be communicated to the Chief Secretary and Additional Chief Secretary, Home Department Odisha.
Decision
17. The Bail Applications are accordingly disposed of. Urgent certified copy of this order be granted on proper application. RKS ( A.K. Mohapatra) Judge Page 9 of 9. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Sep-2024 15:19:12