The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 10908 of 2024 Ankush Bhagat @ Babu State of Orissa ….. Vs. Petitioner Ms. M. S. Sahoo, Advocate Opp. Party Ms. Sarita Maharana, A.S.C. CORAM: ….. JUSTICE SAVITRI RATHO ORDER 24.12.2024 (Through hybrid mode) This is the second application of the petitioner filed Order No. 03. 1. under Section 439 of Cr.P.C. in connection with Jharsuguda P.S. Case No. 473 of 2023 corresponding to Crl. T. (Special) Case No. 42 of 2023 pending in the Court of the learned Addl. District Judge -cum- Special Judge, Jharsuguda, under Sections 21(b), 29 of NDPS Act and Section 25(1-B) of the Arms Act. 2. BLAPL No. 12829 of 2023 filed earlier by the petitioner had been dismissed on 07.05.2024 by this Court as it was alleged that the petitioner has two criminal antecedents under Section 21(b) of the NDPS Act and two antecedents under Sections 274 and 275 of the IPC, but liberty had been granted Page1 of 7 to the petitioner to move for bail afresh if there is delay in commencement of the trial. 3. Thereafter, the prayer for bail of the petitioner has been rejected on 05.10.2024 by the learned Addl. District Judge- cum-Special Judge, Jharsuguda. 4. Perused the report dated 17.12.2024 of the learned Additional Sessions Judge-cum-Special Judge, Jharsuguda :- “1. The IO after completion of investigation submitted charge sheet on 30.11.2023 U/s 21 (b)/29 of NDPS Act / Sec- 25(1-B) of Arms Act before the Court of Sessions Judge-cum- Special Judge, Jharsuguda against the accused persons namely 1. Rakesh Sindhi @ Lidi, 2. Ankush @ Babu Bhagat, 3. Irshad Khan, 4. Irfan Ali @ IIu, 5. Roshan Kumura and 6. Soubhagya Seth. 2. Two accused persons namely Roshan Kumura and Soubhagya Seth have been released on bail on the strength of the order dtd.30.11.2023 passed by the Sessions Judge-cum- Special Judge, Jharsuguda under section 167(2) proviso of the Cr.P.C. Three accused persons namely Irfan Ali @ Ilu, Irshad Khan and Rakesh Sindhi @ Lidi have been granted bail vide BLAPL No 298/24, BLAPL No 279/23 and BLAPL No 2770/24 of the Hon’ble Court respectively. The bail petition of the accused namely Ankush @ Babu Bhagat has been rejected by this court vide order dtd.05.10.2024 and presently he is in custody. 3. On 27.06.2024, this Court received the case record from Page2 of 7 the Court of Sessions Judge-cum-Special Judge, Jharsuguda with a direction for disposal of the case in accordance with law. 4. Chemical examination report was not received from the State Forensic Laboratory, Rasulgarh, Bhubaneswar. Hence, communication was made to the IIC, Jharsuguda PS vide Letter No 1129 dtd. 24.07.2024 of this court and copy communicated to the Director, State Forensic Laboratory, Rasulgarh, Bhubaneswar vide memo No 1130(3) dtd. 24.07.2024 of this court for early submission of chemical examination report. Thereafter chemical examination report was received on dtd.30.09.2024 from the State Forensic Laboratory, Rasulgarh, Bhubaneswar. 5. After receipt of the C.E report, the case record was posted on dated 04.10.2024 for hearing on point of charge. 6. When the record was posted for hearing on point of charge, one adjournment was given at the behest of the counsel for the accused person namely Ankush @ Babu Bhagat. On the same day, the counsel for the accused Ankush @ Babu Bhagat filed a bail petition which was rejected on 05.10.2024. Then the case record was posted to 22.10.2024 for hearing on point of charge. 10. Out of 32 nos of charge sheeted witnesses, no witness has been examined till date. Now the case record is posted to 19.12.2024 for examination of witnesses. All effective steps have already been taken to procure the attendance of witnesses for their examination. The prosecution has also been directed to ensure the attendance of the witnesses for recording of their evidence on the date fixed for hearing. 11. It is humbly submitted that, delay for commencement of Page3 of 7 trial is due to non submission of the C.E. report and for one adjournment sought by the counsel for the accused for hearing on point of charge and due to non production of UTP on the date fixed for hearing on point of charge.” 5. The prosecution allegation in brief is that on 27.09.2023 at about 6.30 p.m. when the informant - S.I. of Police, Jharsuguda Police Station on instruction of the IIC, Jharsuguda Police Station had gone to the garden locality known as Jain Garden behind Man Mohan field, Jharsuguda and found five to six persons dealing with contraband articles like brown sugar. On being asked 6 persons disclosed their names and also confessed that they were smuggling brown sugar in the locality and were sitting there to divide the brown sugar into small packets of 0.5mg each to sell the same to customers. After following the mandatory procedure of the NDPS Act, the brown sugar was seized, and the accused persons were arrested.
Legal Reasoning
6. Ms. M. Sahoo, learned counsel for the petitioner submits that the petitioner is in custody since 27.09.2023 and in view of the quantity of brown sugar seized, Section 37 of the NDPS Act will not be a bar for releasing the petitioner on bail. She further submits that referring to the affidavit filed in BLAPL Page4 of 7 No. 12829 of 2023 by Ankur Bhagat, elder brother of the petitioner, the petitioner has 8 criminal antecedents but he has been released on bail in all the cases. (i) Jharsuguda PS Case No. 506/2021, U/s-274/275/120-B of IPC, (ii) Thelkoloi PS Case No. 140/2020, U/s-380 of IPC, (iii) Jharsuguda PS Case No. 153/2021, U/s-21-B/29 of NDPS Act, (iv) Jharsuguda PS Case No. 434/2011, U/s- 457/380 of IPC, (v) Dhanupali PS Case No. 379/2019, U/s- 274/275/120-B of IPC, (vi) Jharsuguda PS Case No. 475/2022, U/s-399/402 of IPC, (vii) Jharsuguda PS Case No. 771/2022, U/s- 392/34 of IPC, (viii) Rourkela Excise Case No. 103/2023, U/s- 21(b) of NDPS Act. She also submits that since the delay in commencement of trial cannot be attributable to the petitioner, his prayer for bail may be sympathetically considered. 7. Ms. S. Maharana, learned Additional Standing Counsel opposes the prayer for bail stating that in view of the antecedents of the petitioner, he should not be released on bail as he is likely to commit similar offence. Page5 of 7 8. In view of the quantity of brown sugar seized, Section 37 of the NDPS Act is not attracted. In view of his criminal antecedents, his prayer for bail had earlier been rejected in BLAPL No. 12829 of 2023 and granting him liberty to move for bail afresh in case there is delay in commencement of the trial. Co-accused persons have been released on bail. The report of the learned trial Court indicates that there has been delay in commencement of trial on account of non-submission of the chemical examination report. 9. I am therefore inclined to allow the prayer for bail of the petitioner, but subject to stringent conditions. 10. The petitioner Ankush Bhagat @ Babu 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 he does not have any other antecedents under the NDPS Act, including the following conditions: (i) He will furnish cash surety of Rs.20,000/-. (ii) He will not indulge in any criminal activity while on bail. (iii) He will not threaten or try to influence prosecution witnesses while on bail. (iv) He will report before the IIC, Jharsuguda Police Station, Page6 of 7 once a week preferably on a Sunday between 2.00 p.m. to 3.00 p.m. for a period of 6 months or till conclusion of trail whichever is earlier. (v) He will remain present in the Court on each date fixed for trial. 10. Violation of any condition will entail in cancellation of bail/recall of this order. 11. The BLAPL is accordingly allowed. 12. A copy of this order be handed over to Ms. S. Maharana, learned Additional Standing Counsel for onward transmission to the IIC, Jharsuguda Police Station. Subhalaxmi (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Dec-2024 19:29:03 Page7 of 7