Bata Chinabai State of Odisha … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 8856 of 2023 Bata Chinabai State of Odisha ….. Vs. ….. Petitioner Mr. R.L. Pattnaik, Adv. Opp. Party Mr. S.S, Pradhan, A.G.A. CORAM: JUSTICE SAVITRI RATHO Order No. 02. ORDER 29.02.2024 (Through hybrid mode) 1. This is the third successive bail application under Section 439 of Cr.P.C. for grant of bail to the petitioner in connection with Chitrokonda P.S. Case No. 67 of 2020 corresponding to T.R. Case No. 64 of 2020 pending in the Court of the learned Addl. Sessions Judge -cum- Special Judge, Malkangiri under Sections 20(b)(ii)(C)/27 of the NDPS Act. 2. The prayer for bail of the petitioner in BLAPL No. 2548 of 2021 had been rejected by this Court on 03.03.2022 and the learned
Legal Reasoning
trial Court had been requested to complete the trial expeditiously as the petitioner was in custody since 03.07.2020. Thereafter, the petitioner had filed BLAPL No. 4708 of 2023, but the same was withdrawn due to a mistake in the name of the petitioner which had Page 1 of 8 been mentioned as Rathod Birbal, in place of Bata Chinabai. 3. The petitioner thereafter moved the learned Additional Sessions Judge -cum- Special Judge, Malkangiri, but his prayer of bail has been rejected on 29.07.2023 on the ground of non-execution of the informant and other material witnesses and recovery of 1170 kgs. of ganja from the trolley of the tractor. 4. When the matter was listed on 28.11.2023, the Registry had been requested to call for a report from the concerned trial Court regarding status of the trial. Report dated 12.12.2023 of the learned Addl. Sessions Judge -cum- Special Judge, Malkangiri has been received where it has been stated that out of 22 charge sheet witnesses, 15 witnesses have already been examined by the prosecution, two witnesses have passed away and 5 charge sheet witnesses remained to be examined and the case is likely to be
Decision
disposed of within the 1st quarter of 2024. 5. The prosecution allegation in brief is that on the date of occurrence on the basis of prior information the police stopped one motorcycle and one tractor coming from Burudiput side towards Kankaraipada maintaining a distance of about 100 meters among them. On seeing the police the occupants of the motorcycle and the tractor ran away. The petitioner was arrested from the nearby jungle Page 2 of 8 and 1168 kgs of ganja was recovered from the tractor. Chargesheet dated 25.01.2021 has been filed against seven persons - Shyama Muduli, Bhagaban Golory, Hari Pangi, Dambaru Khilla, Paturu Kotaya, Arjun Hantal, Nanda Khilla, Samara Nayak @ Pangi and the petitioner Bata Sinabai, under Section -20 (b)(ii) (C)/ Section 27 A of the NDPS Act showing the other six co accused as absconders. So the case was split up against the petitioner and trial commenced against him. 6. I have heard Mr. R.L. Pattnaik, learned counsel for the petitioner and Mr. S.S. Pradhan, learned Addl. Government Advocate for the State and perused the case diary. 7. Mr. R.L. Pattnaik, learned counsel for the petitioner submits that the petitioner is in custody since 03.07.2020 and in the meanwhile more than three years have elapsed. He further submits that there is no material that the ganja was seized from the exclusive and conscious possession of the petitioner as he was arrested from the jungle and the ganja has been seized from the tractor ; and it is alleged that the occupants of the tractor and motorcycle had run into the jungle on seeing the police. There is no material that the petitioner was travelling in the tractor from which the ganja has been seized. He submits that co accused Samara Nayak @Pangi who was Page 3 of 8 arrested after the petitioner have been granted bail by this Court in BLAPL No. 5051 of 2023 on 12.09.2023. He relied on the decisions of the Apex Court in the case of Rabi Prakash vs. State of Odisha in Special Leave to Appeal (Criminal) No(s). 4169 of 2023 decided on 13.07.2023 and the case of Dheeraj Kumar Shukla vs. The State of Uttar Pradesh, Special Leave to Appeal (Criminal) No(s). 6690 of 2022 decided on 21.01.2023. 8. Mr. S.S. Pradhan, learned Addl. Government Advocate for the State opposes the prayer for bail stating that in view of the quantity of ganja seized, Section 37 will be a bar for releasing the petitioner on bail. He has submitted that the petitioner has been caught while trying to escape and as trial has considerably progressed, he should not be released on bail at this stage. He has submitted that the co accused who have been granted bail stand on a different footing than the petitioner as they were not arrested at the spot. He relies on the decision of the Apex Court in the case Narcotic Control Bureau vs. Mohit Agarwal reported in 2022 Supreme Court Online SC 891 to opposite the prayer for bail. 9. The Supreme Court in the case of Rabi Prakash (supra) allowed the prayer for bail of the petitioner who had remained in custody for more than three and half years and only one out of Page 4 of 8 nineteen witnesses had been examined, holding that “prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act”. In the case of Dheeraj Kumar Shukla (supra), the petitioner therein had remained in custody for two and half years and the Court released him on bail holding that the conditions of Section 37 of the Act can be dispensed with at that stage, more so when the trial was yet commence though the charges had been framed. In the case of Mohit Agarwal (supra), the Supreme Court has held that “the length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act”. In the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260 : 2023 SCC Online SC 352, the Supreme Court while discussing the requirements in Section 37 of the NDPS Act , has held as follows : Page 5 of 8 “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 Malik : (2009) 2 SCC 624). 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 Page 6 of 8 Act 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. 21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country (National Crime Records Bureau). Of these 122,852 were convicts; the rest 4,27,165 were under trials.” 10. Considering the nature of allegations against the petitioner, the period spent by him in custody, the decisions of the Supreme Court referred to above and as some witness still remain to the examined, I am of the view that Section 37 of the NDPS Act will not be a bar to grant bail to the petitioner. It is therefore ordered. 11. The petitioner- Bata Chinabai shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter, including the following conditions: Page 7 of 8 (i) He will not indulge in any criminal activity while on bail. (ii) He will not threaten or try to influence prosecution witnesses while on bail. (iii) He will report before the Chitrokonda Police Station once in a week on every Sunday between 4.00 p.m. to 6.00 p.m. for a period of six months or till completion of trial, which is earlier. (iv) He will remain present on each date fixed for trial subject to any order passed by the learned trial Court passed under Section 317 Crl.P.C. (v) He will not leave Malkangiri district without prior permission to the learned trial Court. 12. Violation of any condition will entail in cancellation of bail. 13. The BLAPL is accordingly disposed of. 14. Urgent certified copy of this order be granted on proper application. 15. A copy of this order be supplied to Mr. S.S. Pradhan, learned Addl. Government Advocate for onward transmission to the Chitrokonda Police Station. Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Apr-2024 21:22:22 (Savitri Ratho) Judge Page 8 of 8