The High Court
Case Details
` IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.12718 of 2022 Babula Khosla and another …. Petitioners State of Odisha …. Opposite Party Mr. N. Banerjee, Advocate -versus- Mr. S. Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 26.04.2023 08. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioners and learned counsel for the State. Perused the F.I.R., case diary and other relevant documents as well as statement of the witnesses. 3. This is an application under Section 439 of the Criminal Procedure Code. 4. The Petitioners are accused in Special Case No.40 of 2021 of
Legal Reasoning
NDPS arising out of Khantapata P.S. Case No.43 of 2021 pending in the court of learned 3rd Additional Sessions Judge-cum-Special Judge, Balasore for commission of offence punishable under Sections 20(b)(ii)(C)/29 of the N.D.P.S. Act. 5. As per the F.I.R., it is alleged that on 28.02.2021 at about 3.30 P.M. one Krushna Pengua S.I. of Khantapada P.S. lodged a // 2 // complaint before the IIC, Khantapada P.S. alleging therein that he has received information from the reliable sources about the illegal transportation of contraband Ganja in a white coloured Maruti Swift Dezire Car bearing Registration Number OD-10-P-4664 from Koraput to Musidabad (West Bengal) through Seragada Check Post,
Legal Reasoning
hence the S.I. Khantapada along with one Srikanta Sarangi and Ramesh Pradhan proceeded to spot and started checking. During the time of checking the alleged vehicle bearing the Registration Number OD-10-P 4664 was checked and found some contraband Ganja were seized along with four persons. Out of which two accused persons are the drivers. The Police made seizure in presence of the witnesses and during the search the police found 114 Kgs. 770 grams of contraband ganja and after all the formalities of NDPS Act and seized the contraband articles and drew the F.I.R. 6. It is submitted by learned counsel for the Petitioners that the petitioners are in custody since 08.02.2021 and they have been falsely implicated in the present case. He further submits that the investigation in the case has been concluded and charge-sheet has already been submitted. Further, he submits that the petitioners undertake not to tamper with the prosecution evidence and not to make any attempt to threaten the witnesses, in the event they are released on bail. Hence, they may be released on bail. Further, it is submitted by learned counsel for the petitioners that the S.I. of Police, who is the official witnesses is to be examined in this case, has been taken E.L. and other witnesses perhaps examined. 7. On the question of delay in conclusion of the trial, this Court was called for a report from the 3rd Additional Sessions Judge-cum- Special Judge, Balasore. Accordingly, on 24.03.2023 learned 3rd // 3 // Additional Sessions Judge-cum-Special Judge, Balasore has submitted a report. On perusal of the said report, it appears that eight witnesses have been examined and further it has been stated that the case is lingering for examination of the I.O., namely, Banita Nayak, S.I. of Khantapada P.S. It has also been stated that the case was posted to 18.03.2023 for examination of the said I.O., a message was received from the IIC. Basta has taken E.L. for a period of 20 days. It has also not known where the I.O. has been examined in the case or not. 8. It is submitted by learned counsel for the petitioner that on a careful scrutiny of the record as well as submissions made, the case is unnecessarily delayed due to non-examination of official witnesses and non-cooperation in the case. It is further seen from the record that the petitioners languishing in custody for more than two years. Learned counsel for the petitioner also contended that the petitioners are drivers and in the absence of them, their families are suffering due to financial crisis. 9. In the aforesaid context, learned counsel for the petitioners referred to the judgment of the Hon’ble Supreme Court in the case in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal No.6690 of 2022, decided on 25.01.2023) as well as by a detailed judgment in the case of Mohd Muslim @
Decision
Hussain v. State (NCT of Delhi) disposed of on 28.03.2023. In the case of Mohd Muslim @ Hussain. Referring to the aforesaid two judgments, learned counsel for the petitioners submitted that delay in conclusion of trial affects the valuable rights of the petitioners in the Constitution of India. 10. Learned Additional Government Advocate, on the other hand, // 4 // opposes the release of the Petitioners on bail. He further submits that such types of crime are rampant in the State and no leniency should be shown to the petitioners or similarly situated persons. Accordingly, learned Additional Government Advocate prays for rejection of the bail application of the Petitioners. 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. Therefore, he further contended that the Petitioners should not be enlarged on bail. It is also contended by the learned Additional Standing Counsel that the release of the Petitioners at this stage would cause delay in conclusion of the trial. 11. Having heard the learned counsel for the respective parties and upon a careful consideration of the surrounding facts and circumstances of the case and keeping in view the fact that the Petitioners are in custody for more than 2 years and further the examination of prosecution witnesses is yet to commence, this Court is of the considered view that the delay in conclusion of the trial has to be kept in mind while considering the bar under Section 37 of the N.D.P.S. Act. The embargo created under Section 37 of the N.D.P.S. Act is no doubt required to be kept in mind of the Court and the same is required to be considered while considering the bail application of the accused-Petitioners, however, the right of the accused under Article 21 of the Constitution of India for an early trial being a constitutional guarantee to every citizen is also required to be considered while applying the bar under Section 37 of the N.D.P.S. Act. The view of this Court gets support from the order passed by the Hon’ble Supreme Court in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal // 5 // No.6690 of 2022, decided on 25.01.2023) as well as by a detailed judgment in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023. In the case of Mohd Muslim @ Hussain (supra), the Hon’ble Supreme Court has specifically considered the impact of bar under Section 37 of the N.D.P.S. Act while releasing the Petitioners on regular bail. Paragraphs-19 and 20 of the said judgment, which are relevant for the purpose, are quoted hereinbelow:- “19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. 20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the // 6 // facts of this case, the appellant deserves to be enlarged on bail.” 12. In view of the aforesaid analysis of law and the authoritative pronouncements of the Hon’ble Supreme Court, this Court is of the considered view that the Petitioner be extended on similar benefit on the ground of delay and, accordingly, it is directed that the Petitioners be released on bail in the aforesaid case on furnishing bail bond of Rs.40,000/-(Rupees forty thousand) each 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 Petitioners shall not be involved in any offence of similar nature; (ii) they shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever; (iii) they shall not make any default in attending the court during trial; (iv) they 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) they 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. 13. It is open for the Court in seisin over the matter to impose any // 7 // other conditions as may be deemed just and proper. 14. 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. 15. 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. 16. The Bail Application is accordingly disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra ) Judge