The High Court
Case Details
Order No. 04. IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.11912 of 2022 Kalanga Digal @ Kulanga …. Petitioner State of Odisha Mr. S.K. Bhanjadeo, Advocate -versus- ….
Legal Reasoning
Opp. Party Mr. P.C. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 11.05.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the State-Opposite Party. Perused the case diary as well as the statement of the witnesses and other materials placed before this Court in course of hearing. 3. The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection with C.T. Case No.57 of 2021, arising out of Phiringia P.S. No.98 of 2021, pending in the Court of learned Sessions Judge-cum-Special Judge (NDPS Act), Kandhamal, Phulbani for alleged commission of offences punishable under Sections 20(b)(ii)(C) and 29 of the N.D.P.S. Act, 1985. 4. This is the second journey of the Petitioner to this Court. On the earlier occasion, the bail application of the Petitioner, i.e. BLAPL No.11089 of 2021 was disposed of as withdrawn vide order dated 13.07.2022 with liberty to the Petitioner to move a fresh bail // 2 // application in the event the trial is not concluded within a period of three months. Since the trial was not concluded within the aforesaid time, the Petitioner was moved an application for bail before the court below and the same having been rejected, the Petitioner approached this Court by filing the present bail application. 5. The factual background of the case, in a nutshell, is that on 22.08.2021 at 6.30 P.M., the Informant-S.I. of Police, Phiringia Police Station received credible information from the reliable sources that three persons are in possession of huge quantity of Ganja, i.e., flowering and fruiting tops of cannabis plant in four numbers of plastic gunny bags and they are waiting at a lonely place, i.e., on the road side near village Bhrungijodi chhack for transportation of the same. Thereafter, the Informant and their staff reached at the spot and found three persons were sitting along with a huge plastic bag and by seeing the police personnel they were trying to escape from the spot. Then the Informant and his staff apprehended them and on being asked they are unable to produce the license or any authority for the possession of the same and the police seized four number of plastic bags containing ganja total 2 quintals 800 Grams from the possession of the Petitioner and co-accused persons. 6. It is submitted by the learned counsel for the Petitioner that the Petitioner is aged about 66 years and he is a daily labourer. On 22.08.2021, the Petitioner was arrested from the public road where he was standing near four bags where contraband Ganja was kept. It is submitted by the learned counsel for the Petitioner that three persons were present nearby the bags containing contraband Ganja containing 50 Kg. 200 gms. each. So far the Petitioner is concerned, it is submitted by the learned counsel for the Petitioner that the // 3 // Petitioner does not have any criminal antecedent and that the Petitioner is earning his livelihood as a daily wages. It is also contended by the learned counsel for the Petitioner that the Petitioner has been arrested from the spot which is a public road and the prosecution has not established the exclusive and conscious possession of the Petitioner. In such view of the matter, learned counsel for the Petitioner submits that the Petitioner be released on bail on any terms and conditions as would be deemed fit and proper by this Court. 7. 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 allegations made in the F.IR. are serious in nature. He further submitted that Petitioner has been arrested from the spot and the contraband Ganja measuring 2 Quintal 800 Grams have been seized in this case. Therefore, the provision contained under Section 37 of the N.D.P.S. Act would be attracted to the facts of the present case. He further contended that the cases of illegal transportation of contraband Ganja are on rise in State of Odisha now-a-days. Therefore, no leniency should be shown to the accused persons, who are involved in such type of offences. He further submitted that release of the Petitioner would also cause delay in conclusion of the trial and that the Petitioner might involve in similar nature of offences, if he is released on bail. In such view of the matter, learned Additional Standing Counsel submitted that the bail application of the Petitioner be rejected at this stage. 8. Considering the submissions made by the learned counsels for the respective parties and upon a careful consideration of the // 4 // surrounding facts and circumstances of the case as well as the material facts and further taking into consideration the period of detention of the Petitioner in jail custody and the progress of trial, this Court is of the considered view that the bar under Section 37 of the N.D.P.S. Act is not attracted in view of the law laid down by the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023). Therefore, this Court keeping in view the fact that the Petitioner is aged about 66 years and that he is in custody since 22.08.2021 and there is no similar criminal antecedent against the Petitioner, coupled with the fact that the trial is not likely concluded in near future, is inclined to release the Petitioner on bail. 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 one local solvent surety for the like amount to the satisfaction of the Court in seisin over the matter . The release of the Petitioner shall also be subject to such terms and conditions as would be fixed by the Court in seision over the matter. 10. 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. 11. The BLAPL is, accordingly, disposed of. Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 18-May-2023 12:32:27 Debasis ( A.K. Mohapatra) Judge