The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 10659 of 2023 An application under Section 439 of the Criminal Procedure Code, 1973. --------------- Dhiraj Kumar ...… Petitioner -Versus- State of Odisha ...…. Opp. Party Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : M/s. A.K. Acharya, A. Acharya & S. Mishra, Advocates For Opp. Party
Legal Reasoning
: Mr. Sitikanta Mishra, Addl. Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J.
Decision
O R D E R 18th October, 2023 Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner is in custody since 25.11.2020 in connection with Similiguda P.S. Case No. 103 of 2020 Page 1 of 6 corresponding to T.R. Case No. 77 of 2020 pending in the court of learned Additional Sessions Judge-cum-Special Judge, Koraput for the alleged commission of offence under Section 20(b)(ii)(C)/29 of the NDPS Act. 3. The prosecution case is that, on 24.11.2020 at about 11.59 A.M., the IIC of Silimilguda Police Station, in the district of Koraput, received information from a reliable source regarding transportation of huge quantity of ganja i.e. the fruiting and flowering tops of cannabis plants, in a 10 wheeler Full Body Truck loaded with crystal salt. It was also learnt that the truck would be passing through Rajput Chhak on Semiliguda-Nandapur Road. The police party therefore, went to the spot and waited for the arrival of the truck. After sometime, a 10 wheeler full body truck, bearing Registration No.CG-04- FB-2582, was seen coming from Nandapur side. The truck was stopped and its contents were searched. Large number of yellow color jerry bags containing crystal salt, were found and several bundles, covered with cello tapes were kept in the middle portion of the truck in between the salt packets in a concealed manner. On further Page 2 of 6 search, the bundles were found to contain ganja. On weighment the total quantity of ganja came to 840 kgs. There were two persons in the vehicle including the present petitioner-Dhiraj Kumar. Thereafter, the required formalities of search and seizure were made and the petitioner and the other persons were arrested and since then, they are in custody. Subsequently, charge sheet was submitted including the name of one Dolphin Pangi as co- accused. 4. It is submitted by Mr. A.K.Acharya, learned counsel for the petitioner, that the co-accused-Arvind Kumar, being a Juvenile, his case was transferred to the Juvenile Justice Board after the case record was split up and was granted bail. In so far as the petitioner is concerned, despite being in custody for nearly two years, trial has not even commenced as yet. Mr. Acharya further submits that the trial court has been simply issuing summons to the witnesses but none has appeared so far. Under such circumstances, the bar under Section 37 of the NDPS Act could not apply as held by the Hon’ble Page 3 of 6 Supreme Court recently in the case of Rabi Prakash v. State of Odisha; SLP (Crl.) No. 4169 of 2023) 5. Per contra, Mr. Sitikanta Mishra, learned Additional Standing Counsel submits that the contraband seized from the exclusive and conscious possession of the petitioner is 841 kgs and the manner in which, it was concealed in the truck along with crystal salt clearly shows the culpability of the petitioner. As regards delay in conclusion of trial, Mr. Mishra argues that it cannot always be a ground to release the accused person on bail, particularly when the offence is grave. He also refers to a decision of the Supreme Court in the case of Narcotics Control Bureau v. Mohit Aggarwal, reported in 2022 SCC Online SC 891. 6. I have heard learned counsel for the parties at length and have also gone through the materials on record in detail. As submitted by the State Counsel, the manner in which huge quantity of contraband (841 kgs of ganja) was being transported in a concealed manner by itself, shows a strong prima facie case against the petitioner. It is not the case of the petitioner that he was falsely Page 4 of 6 implicated in the case or that the contraband was planted deliberately. The only ground putforth for being released on bail appears to be long detention of the petitioner. Mr.Acharya has referred to the judgment of the apex court in the case of Rabi Prakash (supra), wherein reference has been made to Section 37 to hold that the second condition, regarding formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage and the petitioner has already spent more than three and half years in custody. It was under such circumstances that the Supreme Court held that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such situation, the constitutional liberty must override the statutory embargo created under Section 37 of the NDPS Act. Be it noted that in the instant case the petitioner has been in custody for 23 months only. Moreover, in the case of Rabi Prakash (supra), it was not laid down as an inviolable proposition of law that in all cases of long incarceration, the accused person must be Page 5 of 6 released on bail but the observations were made looking into the peculiar facts and circumstances before the Supreme Court. It is also trite law that the length of the period of detention or charge sheet filed and trial having commenced or not commenced by themselves are not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act. In this regard, reference may be had to the judgment of the Supreme Court in the case of Narcotics Control Bureau v. Mohit Aggarwal, reported in 2022 SCC Online SC 891. 7. Thus, from a conspectus of the discussion made hereinbefore, this Court finds that there exists a strong prima facie case to show that the petitioner has committed the alleged offence and secondly, there is no compelling necessity to release him on bail, that too, on the ground that trial has not commenced. 8. The BLAPL is accordingly rejected. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Oct-2023 14:19:59 B.C. Tudu, Sr. Steno ……..……………………. Sashikanta Mishra, Judge Page 6 of 6