The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.12929 of 2023 Lalu Kumar Yadav …. Petitioner Mr.D.Sahoo, Advocate State of Odisha -versus- CORAM: …. Opposite Party Mr. D.Nayak, A.G.A. JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 14.03.2024 05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State. 3. This is an application under Section 439 of the Code of Criminal Procedure filed by the Petitioner for bail in connection with Mohana P.S. Case No.32 of 2021 dated 29.01.2021 corresponding to G.R.Case No.33 of 2021 pending in the Court of the learned Additional Sessions Judge-cum-Special Judge, Paralakhemundi, Gajapati for alleged commission of offence under Sections 20(b)(ii)C/25/29 of the N.D.P.S. Act. 4. It is submitted by learned counsel for the petitioner that the petitioner is in custody since 29.01.2021. Learned counsel for the // 2 // petitioner further contended that in the meantime investigation has been concluded and the charge sheet has been field. So far the present petitioner is concerned. It is further stated that the petitioner is young boy aged about 23 years, he was the driver of the vehicle transporting the seized contraband. Although the learned counsel for the petitioner submitted such contraband article was transported without knowledge of the concerned of the petitioner, however the same is not acceptable at the stage. It was also contended that the petitioner does not have any similar criminal antecedents. In such view of the matter, learned counsel for the petitioner submitted that the petitioner be released on bail on any terms and conditions that is deemed proper by this Court. 5. Learned Additional Government Advocate on the other hand contended that the allegations made against the petitioner in the F.I.R. are very serious in nature. He further contended that taking into consideration the quantity of the alleged contraband seized, i.e. 548kgs, the bar under Section 37 would be attracted in the present case. Learned Additional Government Advocate also expressed concern that in the event the petitioner is released on bail there is a possibility that he may not appear before the learned Court below, as a result of the which trial will be unnecessarily be delayed. In such view of the matter, learned Additional Government Advocate submitted that the bail application is devoid of merit and accordingly the same should be dismissed. 6. This Court on a careful examination of the materials on record as well as factual background of the present case, observes that the trial is not progressing at the desired pace. On the basis of the report submitted by the presiding officer pursuant to order passed by this Court it appears that the report dated 31.01.2024 reveals that only 8 // 3 // out of the 20 witnesses have been examined. Therefore, there is no possibility of early conclusion of the trial. This Court also considered the period of detention of the petitioner who is in custody since 29.01.2021 i.e. for more than 3 years. Learned counsel for the petitioner by referring to the judgments of the Hon’ble Supreme Court in Rabi Prakash vs. State of Odisha in Special Leave to Appeal (Crl.) No.4169 of 2023 as well as Mohd. Muslim vs. State(NCT of Delhi) in Criminal Appeal No.943 of 2023 submitted before this Court that the provisions contained in Article 21 of Constitution overwrite the bar contained under Section 37 of NDPS Act. Therefore, following the law laid down in the aforesaid two judgments of the Hon’ble Supreme Court the accused person be released on bail specially taking into consideration the age of the petitioner and in view of the fact that he is the only bread-earner of the family. 7. Having heard learned counsel appearing for the respective parties on a careful examination of the surrounding facts as well as keeping in view the age of the petitioner and the fact that the petitioner does not have any criminal antecedent, further keeping in view the delay in conclusion of trial and the period of custody of the petitioner, this Court is of the considered view that the bar under Section 37 would not be strictly applicable to the present case in view of the law laid down by the Hon’ble Supreme Court in the abovementioned judgments. However, while releasing the petitioner this Court is required to ensure that the petitioner while on bail does not abscond justice and certain stringent conditions are to be imposed to ensure that the petitioner is present before the Court below during trial. In such view of the matter, this Court directs the petitioner to be released on bail subject to the petitioner furnishing // 4 // two local solvent sureties of like amount to the tune of Rs.50,000/- each to the satisfaction of the Court in seisin over the matter. Further, release of the petitioner shall also be following terms and conditions. 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 to make any default in attending the court during trial on each date without fail; IV. They shall appear before the concerned Police Station once in a week 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 and shall furnish his address and mobile number to the police from time to time. Violation of any of the terms and conditions shall cancellation of bail. 8. Further, release of the petitioner shall also be subject to verification of similar criminal antecedents. In the event it is found that the petitioner is having any similar criminal antecedent, this order shall not be given effect to. 9. BLAPL is accordingly disposed of. 10. Issue urgent certified copy as per Rules. Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 27-Mar-2024 12:14:27 ( A.K. Mohapatra ) Judge