JUSTICE v. NARASINGH Order No
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 10644 of 2023 Pramod Rai …. Petitioner Mr. B. Khara, Advocate State of Odisha -versus- …. Opposite Party Mr. K.K. Gaya, ASC CORAM: JUSTICE V. NARASINGH Order No. 06. 1. Heard learned counsel for the Petitioner and learned
Decision
ORDER 16.02.2024 counsel for the State. 2. The Petitioner is an accused in connection with T.R. Case No.75 of 2021 pending on the file of learned Addl. Sessions Judge- cum-Special Judge, Jeypore, arising out of Jeypore (Sadar) P.S. Case No.211 of 2021 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 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.439 Cr.P.C. by the learned Addl. Sessions Judge-Special Judge, I/c Jeypore by order dated 25.08.2023 in the aforementioned case, the present BLAPL has been filed. 5. It is submitted by the learned counsel for the Petitioner that earlier the Petitioner had moved this Court in BLAPL No.1522 of 2023 and the same was rejected by order dated 06.03.2023 taking Page 1 of 4 into account that the quantity of contraband (ganja) seized is to the tune of 1045 kgs and the Petitioner is a flight risk and the learned Court in seisin was requested to conclude the trial within a period of four months since the Petitioner is in custody from 31.08.2021. 6. Primarily on the ground of procrastination of trial, the present bail application has been filed. 7. Taking into account grievance of the Petitioner that the trial is not progressing and that he is the first offender, a report was called for from the learned Court in seisin. In its report dated 05.02.2024, learned Court in seisin has indicated that three prosecution witnesses have been examined out of eight shortlisted witnesses and in the connected matter, this Court has granted time for conclusion of trial by the end of April, 2024 and it has been further stated that the trial is not progressing because of non- availability of the Presiding Officer after retirement of incumbent on 31.05.2023. 8. The statements of depositions P.W.1 to 3 stated to be independent witnesses have been annexed to the said report. 9. It is the submission of the learned counsel that the Petitioner ought not to suffer because of non-availability of the Presiding Officer and referring to the statements of P.Ws.1 to 3 who are the independent witness and have resiled, he submits that further continuance of the Petitioner in custody is punitive and is flagrant violation of the rights of an accused in terms of Article 21 of the Constitution of India. 10. Learned counsel for the State opposes the prayer for bail and submits that taking into account the nature of allegations and as the contraband has been seized from the vehicle which was being driven by the Petitioner and he being in a flight risk, Petitioner ought not to be released on bail. Page 2 of 4 11. And, it is his further submission that since grant of bail in the cases of this nature is an exception, as held by the Apex Court in the case of State of Madhya Pradesh vs. Kajad reported in (2001) 7 SCC 673, long continuance cannot be a ground which can be relied upon in the case at hand bereft of the factual matrix, as being done by the learned counsel for the Petitioner. 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 (ii) of clause (b) of Section 37(1)…...” (Emphasized) 12. This Court finds substance in the submission of the learned counsel for the State that in the cases under the Special Act, grant of bail is an exception which is a departure from the normal rule. 13. But at the same time, since the grant of bail is an exception, onerous duties cast upon the adjudicating machinery to ensure that the accused does not suffer for want of non-progress in trial. From the report dated 05.02.2024 of the learned Court in seisin, it is seen that the case is lingering because of non-availability of the Presiding Officer and as has been rightly submitted by the learned counsel for the Petitioner that the accused cannot be held liable for that and ought not to suffer on the said account. 14. This Court had also occasion to peruse the statement of independent witnesses P.Ws.1 to 3 who have not supported the prosecution. 15. Taking note of the long incarceration from 31.08.2021, non-progress of trial, as stated, this Court is left with no other Page 3 of 4 alternative but to direct release of the Petitioner keeping in view the judgment passed by the Apex Court in the case of Hussainara Khatoon & Others Vrs. State of Bihar, reported in (1980) 1 SCC 81 and Mohd. Muslim alias Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648 and in view the order of the Apex Court in the case of Rabi Prakash vs. The State of Odisha reported in 2023 SCC OnLine SC 1109 and it is so directed. Terms to be fixed by the learned Court in seisin. 16. Taking into account the quantity of contraband seized, this Court directs that the Petitioner shall not leave the jurisdiction of the learned Court in seisin without its express permission and intimation to the I.O. and shall appear before the jurisdictional police station once a week on such date and time to be fixed by the learned Court in seisin till conclusion of trial. Certification of such appearance shall be submitted to the Court in seisin. 17. Before releasing, learned Court in seisin is requested to verify the criminal antecedent of the Petitioner from his parent police station i.e. P.S.- Kochas, Dist-Rohatas (Bihar). If it comes to the fore that the Petitioner has any criminal antecedent, this order shall not be given effect to. 18. It is further directed that one of the family member of the Petitioner shall execute P.R bond in addition to the sureties so fixed. 19. 20. Accordingly, the BLAPL stands disposed of. In view of the disposal of the bail application, I.A. No.22 of 2024 stands disposed of. 21. Urgent certified copy of this order be granted as per rules. Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Feb-2024 10:46:31 Santoshi (V. NARASINGH) Judge Page 4 of 4