Budu Sisa State of Odisha … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 9590 of 2024 Budu Sisa State of Odisha ….. Vs. ….. Petitioner Mr. Sabyasachi Mishra, Advocate Opp. Party Ms. Gayatri Patra, A.S.C. CORAM: JUSTICE SAVITRI RATHO ORDER 29.11.2024 (Through hybrid mode) Order No. 02. 1. This is the second application of the petitioner filed under Section 439 of Cr.P.C. in connection with Inspector of Excise, DFS Koraput P.R. No. 45 of 2022-23 corresponding to T.R. Case No. 16 of 2023 in the Court of the learned Additional Sessions Judge-cum- Special Judge, Koraput under Section 20 (b) (ii) (c) of the NDPS Act 2. BLAPL No. 13378 of 2023 filed earlier by the petitioner had been dismissed on 12.12.2023 by this Court. 3. Thereafter, the petitioner had moved the learned Court below for bail and his prayer has been rejected by the learned Addl. Sessions Judge -cum- Special Judge, Koraput on 10.09.2024. 4. The prosecution allegation in brief is that on 05.02.2023, in the evening hour, while Inspector of Excise, District Flying Squad, Page 1 of 8 Koraput along with his staff were performing patrolling duty, received reliable information regarding storage of contraband ganja by the side of the road to transport the same to the outside of the State. To verify the veracity of such information, the excise team rushed to the spot and found the accused standing there with five white colour jari bags. During search, 125 kgs. of contraband ganja was seized from the exclusive possession of the petitioner. As the petitioner could not produce any authority for possession of the said ganja, the ganja was seized and he was arrested.
Legal Reasoning
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). 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 (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.” In the case of Sahendra Majhi (supra), the prayer for bail of the petitioner had been rejected by this Court in BLAPL No. 13378 Page 6 of 8 of 2023. As he had remained in custody for two years who was in custody on the allegation of prosecution of 355 kgs. of ganja which he had kept under a tree and only four, out of eight witnesses had been examined, the Supreme Court had allowed his prayer for bail. 8. Considering the nature of allegations against the petitioner, the circumstances in which the ganja has been seized, the period, the petitioner has spent in custody and the submission that the petitioner does not have any antecedents under the NDPS Act and the decisions of the Supreme Court referred to above, I am inclined to allow the prayer for bail as I am of the view that the bar Section 37 of the NDPS Act will not be attracted. 9. The petitioner- Budu Sisa shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter, after verifying that the petitioner does not have any antecedents under the NDPS Act or under Section 274 and 275 of the IPC, including the following conditions: (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 remain present in the learned Court below on each date fixed for trial. Page 7 of 8 (iv) He will not leave District- Koraput without prior permission of the learned Additional Sessions Judge -cum- Special Judge, Koraput / Trial Court till the end of trial. (v) He will report before the Machhkund Police Station once a week on every Sunday between 10.00 a.m. to 11.00 a.m. till conclusion of the trial. 10. Violation of any condition will entail in cancellation of bail. 11. The BLAPL is accordingly allowed. 12. The observations in this order have been made for the purpose of consideration of the prayer for bail and should not influence the learned trial court. 13. Copy of this order be sent to Ms. Gayatri Patra, learned Additional Standing Counsel for onward transmission to the I.I.C., Machhkund Police Station. Sukanta (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Jan-2025 16:10:09 Page 8 of 8
Arguments
5. Mr. Sabyasachi Mishra, learned counsel for the petitioner submits that the petitioner is in custody since 05.02.2023 (more than one year and nine months). He is a local resident under Machkund Police Station in the district of Koraput and he has no antecedent under the NDPS Act. He further submits that there are four prosecution witnesses in the case out of whom two are independent witnesses and they have been examined in the trial and have not supported the prosecution case. He also submits that in the PR itself, it is stated that the petitioner is a Adibasi and a labourer and he was standing with the five bags of ganja by the side of the road in his village. He further submits that the allegations are unbelievable as it is not possible that one person could carry five bags weighing more Page 2 of 8 than 100 kgs. and that he has been falsely implicated as he was available in the area which is natural as he is a resident of the same village. He also submits that the petitioner is in custody since almost two years for which there has been violation of Article 21 of the Constitution of India for which his prayer for bail should be allowed. In support of his submission, he relies on the decisions of the Supreme Court in the case- (i) Mohd Muslim @ Hussain vs. State (NCT of Delhi) : 2023 LiveLaw (SC) 260. (ii) Sahendra Majhi vs. The State of Orissa (Criminal Appeal No. 4465 of 2024) (SLP (CRL.) No. 12249 of 2024 decided on 05.11.2024). 6. Ms. Gayatri Patra, learned Additional Standing Counsel for the State opposes the prayer for bail stating that in view of the quantity of ganja seized, Section 37 of the NDPS Act will be a bar for releasing the petitioner on bail. But she does not dispute the submission that the petitioner does not have any criminal antecedents and is a resident of the same village. She also submits that in the case of Mohd Muslim @ Hussain (supra) the accused was in custody for more than seven years and 34 witnesses remained to be examined and the ganja had been seized from the co-accused. Page 3 of 8 7. In the case of Mohd Muslim @ Hussain (supra), the Supreme Court has held as follows: 16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply: “We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.” XXX XXX XXX 18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the Page 4 of 8 accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest. 19. A plain and literal interpretation of the conditions Page 5 of 8 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