The High Court
Case Details
Order No. 04. IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.13043 of 2022 Ashok Kumar State of Odisha …. Petitioner Mr. A.N. Pattanayak, Advocate -versus- ….
Legal Reasoning
Opp. Party Mr. M.K. Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 04.05.2023 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 materials placed before this Court. 3. The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection with T.R. Case No.22 of 2019, arising out of Semilliguda P.S. No.85 of 2019, pending in the Court of learned Additional Sessions Judge-cum- Special Judge, Koraput for alleged commission of offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985. 4. The factual background of the case, in a nutshell, is that on 13.5.2021 the Informant-S.I. of Police, Semiliguda Police Station along with other staff left to the Police Station for performing patrolling. While performing patrolling in Janiguda, Charagaon and Khoraguda area found one full bodies Eicher Truck bearing Registered No.HR-69C-9920 coming from Nandapur side and // 2 // overtook the police vehicle in high speed at Rajput Chhak. The police team chased the vehicle and could able to stop the alleged vehicle at Bodenga Chhak with four occupants therein including the driver. On verification of the vehicle, the Informant and staff found some jerry packets in concealing manner in between two tarpaulins from which acute smell of Ganja was coming out. After observing all formalities of search and seizure as enshrined in N.D.P.S. Act, 378 Kgs. and 400 Grams of contraband Ganja was recovered and seized from the exclusive and conscious possession of the accused persons. So, the accused persons have been arrested and forwarded to the Court. 5. It is submitted by the learned counsel for the Petitioner that the Petitioner is in custody since 17.09.2019. He further submitted that although charge sheet has been filed and trial has commenced, however, the trial is progressing at very slow stage. Learned counsel for the Petitioner emphasis that the Petitioner is in custody for more than 3½ years. It is also contended that the Petitioner is a poor driver and in the absence of the Petitioner his family is suffering a lot. It is also submitted before this Court that the Petitioner does not have any similar criminal antecedent and he has a victim of circumstances. 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. 6. 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 378.400 Kgs. of contraband Ganja have been recovered from the vehicle from which the Petitioner was arrested. Taking into consideration the quantity of Ganja seized, learned Additional Standing Counsel submitted that bar under // 3 // Section 37 of the N.D.P.S. Act is attracted to the facts of the present case. He further submitted that the cases of illegal transportation of contraband Ganja are on rise in State of Odisha now-a-days. However, the release of the Petitioner at this stage would create hindrance for early conclusion of the trial. Therefore, he submitted that the prayer for bail of the Petitioner be rejected at this juncture. 7. So far delay in trial is concerned, this Court called for a report from the learned Additional Sessions Judge-cum-Special Judge, Koraput. A report dated 21.04.2023 has been forwarded by the Court in seisin over the matter in this case to this Court, which is on record. On perusal of the same, it appears that out of 17 witnesses, only four witnesses have been examined so far. Further, the report indicates that the Informant is dead in the meantime and that the case has been posted to 11.05.2023 for further trial. 8. In view of the aforesaid background, this Court is of the considered view that there is unnecessary delay of trial, which affects the right of the Petitioner for an expeditious trial as has been guaranteed under Article 21 of the Constitution of India. So far bar under Section 37 of the N.D.P.S. Act is concerned, the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023) has held that if there is unnecessary delay in trial which affecting the rights of the accused- Petitioner as guaranteed under the Constitution of India, then the bar under Section 37 of the N.D.P.S. Act is not attracted. 9. Considering the submissions made by the learned counsels for the respective parties and upon a careful examination of the surrounding facts and circumstances of the case as well as keeping in view the fact that only four witnesses have been examined out of seventeen witnesses after almost four years from the date of // 4 // occurrence and the Petitioner is languishing 3½ years in custody, this Court is inclined to release the Petitioner on bail subject to stringent terms and conditions. 10. 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 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; (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. 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. // 5 // 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 BLAPL is, accordingly, disposed of. ( A.K. Mohapatra) Judge DEBASIS AECH Digitally signed by DEBASIS AECH Date: 2023.05.05 18:38:01 +05'30'