JUSTICE v. NARASINGH Date of judgment
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.8067 of 2024 Sania @ Debashis Das …. Petitioner -versus- State of Odisha …. Opposite Party For Petitioner : Mr. B. Das, Advocate For Opposite Party : Mr. G.N. Rout, ASC CORAM: JUSTICE V. NARASINGH Date of judgment:27.09.2024 V. Narasingh, J. 1. Heard Mr. B. Das, learned counsel for the Petitioner and Mr. G.N. Rout, learned Additional Standing Counsel for the State. 2. The Petitioner is an accused in connection with C.T. Case No.424 of 2022 pending on the file of learned Additional District & Sessions Judge, Jagatsinghpur arising out of Jagatsinghpur P.S. Case No.851 of 2022 for commission of offence alleged under Sections 21(C) and 29 of the NDPS Act. 3. Learned counsel, on instruction, submits that except the present BLAPL, no other bail application of BLAPL No.8067 of 2024 Page 1 of 10 the Petitioner relating to the aforementioned P.S. case is pending in any other Court. 4. Being aggrieved by the rejection of his application for bail U/s.483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) by the learned Addl. District Judge, (I/C) Jagatsinghpur by order dated 23.07.2024 in the aforementioned case, the present BLAPL has been filed. 5. This is the third journey of the Petitioner to this Court. Earlier bail application of the Petitioner i.e. BLAPL No.11043 of 2023 was rejected by this Court by order dated 19.01.2024. Thereafter, Petitioner had
Legal Reasoning
moved this Court in BLAPL No.4614 of 2024 which was rejected by order dated 21.05.2024. 6. It is submitted by the learned counsel that the Petitioner is in custody since 18.12.2022 on the allegation that he along with co-accused were involved in transportation of contraband (brown sugar) to the tune of 258.62 grams. 7. Learned counsel seeks release of the Petitioner primarily on the ground of procrastination of trial and to fortify his submission, he relies on the latest judgment of the Apex Court in the case of V. Senthil Balaji vs. The Deputy Director, Directorate of Enforcement, 2024 INSC 739. 8. To ascertain the veracity of the submission regarding the procrastination of trial, a report was BLAPL No.8067 of 2024 Page 2 of 10 called for from the learned Court in seisin. The said report is extracted hereunder; “xxx xxx xxx to With reference the subject and reference cited above, I am to submit that the case record in C.T. No. 424 of 2022 arising out of Jagatsinghpur PS Case No. 851 of 2022 was received from the learned District & Sessions Judge, Jagatsinghpur on transfer on dtd 17.06.2023. Charge was framed against the accused persons with respect to the offences punishable u/ss. 29(1)/21(C) of N.D.P.S Act on dtd 08.04.2024. Out of 24 C.S witnesses, only one witness have already been examined, cross examined and discharged on dtd 13.05.2024. At present, the Court of the Additional Sessions Judge, Jagatsinghpur is lying vacant since dtd. 29.06.2024 as the P.O has been transferred. Now, the case is posted to 21.09.2024 for evidence. xxx xxx xxx” 9. An affidavit has been filed at the behest of the Petitioner indicating that the Petitioner has following six criminal antecedents; I. Kujang P.S. Case No-316/2013 offence U/s- 379 IPC. II. Kujang P.S. Case No.118/2014 offence U/s- 341, 294, 354-A(1), 506, 34 IPC. III. Kujang P.S. Case No.169/2015 offence U/s- 364 of IPC. IV. Kujang P.S. Case No.155/2015 offence U/s- 364 of IPC. BLAPL No.8067 of 2024 Page 3 of 10 V. Kujang P.S. Case No.273/2019 U/s-21(b) NDPS Act. VI. Kujang P.S. Case No.367/2022 U/s-21(b) NDPS Act. It is stated in the said affidavit that Petitioner has been acquitted in four cases which are at serial Nos. (i) to (iv) of the above and in the case at serial Nos. (v) to (vi), he is on bail. 10. Learned counsel for the Petitioner submits with vehemence that since release of the Petitioner is sought on the ground of procrastination of trial, the criminal antecedent ought not to deter this Court from considering his bail application on merits. 11. Learned counsel for the State, Mr. Rout, ASC & Public Prosecutor opposes the prayer and submits that the Petitioner has admittedly six criminal antecedents and referring to the bar contained in Section 37(1)(b)(ii) of the NDPS Act, submits that merely because of procrastination of trial, the statutory restriction cannot be over looked. He also relies on the judgment of the Apex Court in the case of State of Madhya Pradesh vs. Kajad reported in (2001) 7 SCC 673 and order of the Apex Court in the case of State by the Inspector of Police vs. B. Ramu in SLP(Crl.) No(s).8137 of 2022 dated 12.02.2024. 11-A. Section 37(1)(b)(ii) of the NDPS Act reads thus; BLAPL No.8067 of 2024 Page 4 of 10 “37.Offences to be cognizable and non- bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) xxx xxx xxx (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- there are (i) xxx xxx xxx (ii) where the Public Prosecutor opposes the application, the Court is satisfied that for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. xxx xxx xxx reasonable grounds 12. It is apposite to state that this Court is not oblivious of the special features of consideration of bail in a case under the NDPS Act as enunciated by the Apex Court in the case of Kajad (supra). The relevant extract of the said judgment is culled out hereunder; “The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub clause (b) of Section 37(1)…...” (ii) of clause BLAPL No.8067 of 2024 (Emphasized) Page 5 of 10 12-A. In the case of B. Ramu (supra), while dealing with an order granting anticipatory bail U/s.438 Cr.P.C., during currency of investigation, in an accusation under the NDPS Act of alleged possession of contraband to the tune of 232.5 kgs of ganja, the Apex Court held thus; filed against “14. The fact that after investigation, the charge-sheet has been the respondent-accused along with other accused persons, fortifies the plea of the State counsel that the Court could not have recorded a satisfaction that the accused was prima facie not guilty of the offences alleged.” 12-B. It is apt to note that in both the aforementioned cases, relied upon by the learned counsel for the State, the rights of the accused for speedy trial and breach thereof was not the subject matter of consideration. 13. Right to be released on bail due to prolonged incarceration on account of non-progress in trial is asserted on the anvil of violation of Article 21 of the Constitution. As such, this Court is of the considered view that twin statutory prescriptions enjoined in section 37(1)(ii) of the NDPS Act as extracted above pales into insignificance. On this aspect, respectful reference is made to the judgment of the Apex Court in the case of BLAPL No.8067 of 2024 Page 6 of 10 Satender Kumar Antil vrs. Central Bureau of Investigation and another reported in (2022) 10 SCC 51, Mohd. Muslim alias Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648 and Rabi Prakash vs. The State of Odisha reported in 2023 SCC OnLine SC 1109. 13-A. In the case of Satender Kumar Antil (supra), the Apex Court dealt with the offences governed by Special Act like the NDPS Act as in the case at hand and noted that the provisions contained in Section 436A of the Code would apply to the Special Acts as well in the absence of any specific provision and held that the rigor, as provided under Section 37 of the NDPS Act, would not come in the way in such a case while dealing with the liberty of a person and further noted that “more the rigor, the quicker the adjudication ought to be”. For convenience of ready reference Section 436A of the Code of Criminal Procedure, 1973 is extracted hereunder; 436-A. Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up the maximum period of to one-half of imprisonment specified for that offence under BLAPL No.8067 of 2024 Page 7 of 10 that law, he shall be released by the Court on his personal bond with or without sureties: that Provided the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. 13-B. Such view was reiterated in the case of Mohd. Muslim alias Hussain (supra); “……….. 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 too.”. 13-C. In the case of Rabi Prakash (supra), the Apex Court considering the delay in trial held thus; “…………..The prolonged incarceration, generally militates against the most precious fundamental the right guaranteed under Article 21 of Constitution and the in such a situation, conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 14. The sum and substance of the aforementioned judgments of the Apex Court is that the right to speedy trial as guaranteed under Article 21 has to be given BLAPL No.8067 of 2024 Page 8 of 10 precedence over the statutory bar and such right cannot be negated because of antecedents even under the special statute. 15. Yet one has to bear in mind the caveat time and again reiterated by the Apex Court that in the matter of consideration of bail each case has to be judged on its own merit and more significantly its peculiar facts. There cannot be any straightjacket formula. Precedents can at best be illustrative. Though there can never be any absolute embargo on the Constitutional Courts from granting bail to an accused. 16. The Petitioner is in custody since 18.12.2022, there is no progress in trial, as noted. It is stated at the Bar that the Petitioner has his home and hearth within the territorial jurisdiction of the learned Court in seisin. 17. Considering his right to speedy trial and inter play between such sacred right and statutory prescription of the special Act as reiterated by the Apex Court discussed above, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned Court in seisin. 18. Keeping in view his criminal proclivity, additionally, it is directed that the Petitioner shall appear before the jurisdictional police station twice every week on such date and time to be fixed by the learned Court in seisin till conclusion of trial. BLAPL No.8067 of 2024 Page 9 of 10 Certification of such appearance shall be submitted to the Court in seisin. 19. 20.
Decision
Accordingly, the BLAPL stands disposed of. In view of the disposal of the BLAPL, I.A. No.1254 of 2024 stands disposed of. (V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 27th of September, 2024/ Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 01-Oct-2024 18:30:30 BLAPL No.8067 of 2024 Page 10 of 10