The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.12930 of 2023 Vullagulla Chiranjeevi …. Petitioner Mr. Jogi Nahak, Advocate -versus- State of Odisha …. Opposite Party Mr. A.P. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 24.01.2024 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for both the parties. Perused the case diary as well as Case Diary and the statement of the witnesses. 3. This is an application under Section 439 Cr.P.C. filed by the Petitioner for bail in connection with DRI F. No.DRI/HZU/BRU/ ENQ- 01(Int-Nil)/2019, corresponding to 2(a) CC Case No.19 of 2019-(N), pending in the court of learned 1st Additional Sessions Judge-cum- Special Judge, Berhampur, Ganjam, for commission of alleged offences under Sections 20(b)(ii)(C)/28/29 of N.D.P.S. Act. 4.
Legal Reasoning
Learned counsel for the Petitioner submits that the Petitioner is in custody since 04.09.2019. He further submits that although the trial has been commenced only two witnesses have been examined so far. Further, it is submitted by learned counsel for the petitioner that // 2 // since last one year, not a single witness has been examined in the present case and the petitioner does not have any criminal antecedents. He further submits that the petitioner is a mere driver has been falsely implicated in the present case and his family members are suffering and that the petitioner was the bread earner for his family. In such view of the matter, the petitioner is ready and willing to abide by any terms and conditions imposed by this Court and also cooperate with the trial. 5. In the aforesaid context, learned counsel for the petitioner referred to the judgment of the Hon'ble Supreme Court 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 @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. 6. Learned Additional Standing Counsel, on the other hand, opposes the release of the Petitioner on bail. He further submits that such types of crime are rampant in the State and no leniency should be shown to the petitioner or similarly situated persons. Accordingly, learned Additional Standing Counsel prays for rejection of the bail application of the Petitioner. 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 Petitioner should not be enlarged on bail. It is also contended by the learned // 3 // Additional Standing Counsel that the release of the Petitioner at this stage would cause delay in conclusion of the trial. 7. So far delay in trial of the case, it is stated by the learned counsel for the Petitioner that out of seven witnesses, two witnesses have been examined so far. Thereafter, trial has not been progressed due to non-attendance of the witnesses. 8. This Court is of the view that the trial is unnecessarily prolonged due to slackness of the court or failure of the prosecution and the police for taking into consideration to produce the witnesses in Court in any case. The entire picture of the trial is depicted its story in the state of affairs in a manner which the trial is being conducted and the petitioner is languishing in custody since 04.09.2019, i.e. for almost more than three and half years only two witnesses have been examined so far. On careful consideration of the aforesaid factual background of the case, this Court is of the considered view that the same definitely affects the right as guaranteed under Article 21 of the Constitution of India, i.e. trial to expedite as decided by the Hon'ble Supreme Court 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 @Hussain v. State (NCT of Delhi) disposed of on 28.03.2023. In the case of Mohd Muslim @ Hussain. 9. 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 Petitioner is in custody for more than three and half years and further the examination of prosecution witnesses is yet to commence, this // 4 // 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-Petitioner, 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 No.6690 of 2022, decided on 25.01.2023) as well as by a detailed judgment in the case
Decision
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 Petitioner on regular bail. Paragraphs- 19 and 20 of the said judgment, which are relevant for the purpose, are quoted hereinbelow:- literal interpretation of "19. A plain and 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 // 5 // 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 Malik). 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 facts of this case, the appellant deserves to be enlarged on bail." In view of the aforesaid analysis of law and the authoritative 10. pronouncements of the Hon'ble Supreme Court, this Court is of the considered view that the Petitioner be extended similar benefit on the ground of delay and, accordingly, 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; // 6 // (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 and shall furnish his address and mobile number to the police from time to time. Violation of any of the terms and conditions shall entail cancellation of bail. 11. It is open for the Court in seisin over the matter to impose any other conditions as may be deemed just and proper. 12. 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. 13. 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. 14. The Bail Application is accordingly disposed of. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra ) Judge RKS Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 29-Jan-2024 10:59:16