The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.11654 of 2023 Bapi @ Mahendra Behera … Petitioner Mr. B.P.Pradhan, Advocate State of Orissa -versus- … Opposite Party Mr. P.K.Maharaj, ASC CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 04.04.2024 Order No. 10. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. This is a bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with Special Task Force P.S. Case No. 02 of 2022 corresponding to T.R. Case No.43 of 2022 pending in the file of learned 5th Addl. District & Sessions Judge, Bhubaneswar for commission of offences punishable under Sections 20(b)(ii)(C)/29 of the NDPS Act r/w Sec. 353 of IPC, on the allegation of transporting 169Kgs and 900 Grams of Contraband Ganja in a Maruti Dezire car. 3.
Legal Reasoning
In the course of hearing, Mr.B.P.Pradhan, learned counsel appearing for the petitioner by referring to the affidavit stated to be sworn in by the mother of the petitioner which is filed today in the Court along with some documents, submits that this is the third bail application of the petitioner, but no bail application of Page 1 of 4 the petitioner is pending before any other forum. Mr.Pradhan further submits that although the petitioner has been detained in custody for more than two years and two months, but trial is yet to be concluded and 05 out of 18 charge sheeted witnesses have been examined till today and the petitioner was once granted with interim bail, but he has not misused the liberty so granted to him and therefore, the insistence of conditions of Section 37 of NDPS Act may be dispensed with at this stage, when the trial is not concluded even after two years and two months of the custody of the petitioner. 4. On the contrary, Mr.P.K.Maharaj, learned ASC, however, strongly opposes the bail application of the petitioner and he inter alia contends that there cannot be any relaxation in insistence of conditions of Section 37 of NDPS Act to the petitioner who has been arrested for commission of offence under the NDPS Act involving commercial quantity of Contraband Ganja. Mr.Maharaj, learned ASC accordingly prays to reject the bail application of the petitioner. 5. It is brought to the notice of the Court that the petitioner was arrested on 02.02.2022 and in the meanwhile, more than two years and two months has elapsed, but only 05 out of 18 charge sheeted witnesses have been examined till today. It is not disputed that there is allegation against the petitioner for transporting Page 2 of 5 169Kgs of Contraband Ganja which is coming under commercial quantity and normally the conditions of Section 37 of NDPS Act would be attracted in such situation, but the trial in this case is not continuing for want of Presiding Officer in the said Court as reported by the in-charge Presiding Officer in his report dated 03.04.2024. In such situation, when the trial would be concluded is eventually a guess, but Article 21 of the Constitution of India preserves a right for the person accused of an offence to have right of speedy trial, but such right of the petitioner has been seriously curtailed for not being provided with speedy trial. Further, the petitioner was granted interim bail by this Court on 05.12.2023 in I.A. No. 1587 of 2023 and the petitioner has voluntarily surrendered to custody after expiry of the interim bail. The prolong custody of the petitioner militates the fundamental right guaranteed under Article 21 of the Constitution of India. In such situation, especially when the petitioner is in custody for a prolong period, the conditions of Section 37 of NDPS Act may not be insisted upon the petitioner at this stage since this Court is prima facie satisfied that conditions of Section 37 of NDPS Act may be dispensed with at this stage, especially when the trial is not concluded even after two years and two months of the custody of the petitioner. 6. For the reasons stated hereinabove and taking into consideration the pretrial detention of the petitioner Page 3 of 5 in custody vis-a-vis the right of the petitioner to speedy trial as guaranteed under Article 21 of the Constitution of India, this Court directs for release of the petitioner on bail. 7. Hence, the bail application of the petitioner stands allowed and the petitioner is allowed to go on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh) only with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following conditions:- (i) the petitioner shall not commit any offence while on bail, (ii) the petitioner in the course of trial shall attend the trial Court on each date of posting without fail unless his attendance is dispensed with. In case the Petitioner fails without sufficient cause to appear in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioner for offence U/S.229-A of IPC in accordance with law, in the Court (iii) the petitioner shall not leave the territorial jurisdiction of the trial Court without prior permission till disposal of the case by intimating his present address of stay, (iv) the petitioner shall report attendance before the Jurisdictional Police Station once in a fortnight preferably on 2nd Page 4 of 5 Sunday of each month in between 10 A.M. to 12 Noon for three (03) months from the actual date of release from the custody. The I.I.C. of Jurisdictional Police Station shall not detain the petitioner unnecessarily after recording his attendance beyond the time as stipulated. It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the petitioner without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. In the wake of aforesaid, the subsequent involvement of the petitioner in future any offence under NDPS Act on prima facie accusations may be treated as a ground for cancellation of bail in this case. 8.
Decision
Accordingly, the BLAPL stands disposed of. 9. Issue urgent certified copy of the order as per Rules. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 05-Apr-2024 10:41:54 kishore Page 5 of 5