The High Court
Case Details
Order No. 03. IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.11508 of 2022 Rajendra Kumar State of Odisha …. Petitioner Mr. A.N. Pattanayak, Advocate -versus- ….
Legal Reasoning
Opp. Party Mr. P.C. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 06.07.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel appearing for the Petitioner and the learned Additional Standing Counsel appearing for the State-Opposite Party. Perused the materials placed before this Court. 3. The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection with T.R. Case No.45 of 2021, arising out of Machhakund P.S. No.45 of 2021, pending in the Court of learned Additional Sessions Judge-cum-Special Judge, Koraput for alleged commission of offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985. 4. The factual background of the case, in a nutshell, is that on 13.5.2021 the Informant-S.I. of Police, Machhkund Police Station and other staff left to the Police Station to verify the // 2 // veracity of information regarding transportation of Ganja in a truck bearing Registration No.RJ-21-GC-2957. During performing their vehicle checking at about 11.45 A.M. on that day at Badapada Ghat, the police personnel noticed the said truck coming from Sagar side. So, out of suspicion, the police team detained the vehicle along with accused persons. On verification of the truck they found 15 tinsel (jerry) bags having smell of Ganja. Informant also recovered and seized 422 Kgs. and 300 Grams of contraband Ganja from the exclusive and conscious possession of the accused persons after observing all formalities of search and seizure under N.D.P.S. Act. So, the accused persons have been arrested and send them to custody. 5. It is submitted by the learned counsel for the Petitioner that the Petitioner is in custody since 13.05.2021. He further submitted that although charge sheet has been filed since long, however, the trial has not yet commenced. He further contended that the Petitioner is a Helper of the vehicle in question and he has become victim of circumstances as contraband Ganja which was seized from his vehicle was kept by some other persons. It is further contended that the Petitioner does not have similar criminal antecedent. In such view of the matter, learned counsel for the Petitioner submitted that the Petitioner be released on bail on any terms and conditions as would be deemed fit and proper by this Court. 6. Learned Additional Standing Counsel appearing for the State-Opposite Party, on the other hand, opposed the prayer for bail of the Petitioner on the ground that 422.300 Kgs. of // 3 // contraband Ganja have been recovered from the vehicle from which the Petitioner was arrested. Taking into consideration the quantity of Ganja seized, learned Additional Standing Counsel submitted that bar under Section 37 of the N.D.P.S. Act is attracted to the facts of the present case. He further submitted that the cases of illegal transportation of contraband Ganja are on rise in State of Odisha now-a-days. However, the release of the Petitioner at this stage would create hindrance for early conclusion of the trial. Therefore, he submitted that the prayer for bail of the Petitioner be rejected at this juncture. 7. In the aforesaid background, this Court is of the considered view that the Petitioner is in custody for more than two years, however, trial has not yet been commenced. Therefore, the delay is affected the Petitioner’s right for a speedy trial as guaranteed under Article 21 of the Constitution of India. So far bar under Section 37 of the N.D.P.S. Act is concerned, the Hon’ble Supreme Court in in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023) has held that if there is unnecessary delay in trial which affecting the rights of the accused-Petitioner as guaranteed under the Constitution of India, then the bar under Section 37 of the N.D.P.S. Act is not attracted. 8. Considering the submissions made by the learned counsels for the respective parties and upon a careful examination of the surrounding facts and circumstances of the case as well as keeping in view the fact that the trial has not been commenced and the accused is in custody for more than two years, this Court // 4 // is inclined to release the Petitioner on bail subject to stringent terms and conditions. 9. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/- (Rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further conditions that :- (i) The Petitioner shall not be involved in any offence of similar nature; (ii) he shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever; (iii) he shall not make any default in attending the court during trial; (iv) he shall appear before the concerned Police Station once in a fortnight preferably on ‘Sunday’ in between 10.00 A.M. to 1.00 P.M. till conclusion of trial; and (v) he shall not leave the jurisdiction of the Court in seisin over the matter without prior permission of the Court in seisin over the matter. Violation of any of the terms and conditions shall entail cancellation of bail. 10. It is open for the Court in seisin over the matter to impose // 5 // any other conditions as may be deemed just and proper. 11. It is further directed that the bail granted to the Petitioner is subject to the condition that the court below shall verify whether the Petitioner has any criminal antecedent of similar nature. In the event it is found that the Petitioner has any criminal antecedent, this bail order shall automatically stand revoked. 12. It is made clear that if the Petitioner fails to attend the court on the date fixed on a single occasion, this order shall stand automatically revoked and the court below is at liberty to issue N.B.W. against the Petitioner forthwith. 13. The BLAPL is, accordingly, disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 08-Jul-2023 14:01:16