The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.14244 of 2023 Saroj Bagh @ Bag …. Petitioner Mr. S. Panda, Advocate -versus- State of Odisha …. Opp. Party Smt. Sushamarani Sahoo Addl. Standing Counsel JUSTICE S.K. SAHOO CORAM: Order No.
Decision
ORDER 15.03.2024 03. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard learned counsel for the petitioner and learned counsel for the State. This is an application under section 439 of Cr.P.C. in connection with Tarva P.S. Case No.15 of 2016 corresponding to Special G.R. Case No.04 of 2016 pending in the Court of learned Sessions Judge -cum- Special Judge, Sonepur for offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act. The petitioner moved an application for bail before the Court of learned Special Judge, Sonepur (I/c) which was rejected on 05.09.2023. Perused the status report submitted by the learned trial Court dated 09.01.2024. // 2 // It is the submission of the learned counsel for the petitioner that the petitioner was taken into judicial custody on 05.03.2016 and thereafter, he was granted interim bail by this Court on some occasion and after availing the same, he surrendered at right time and the case is still lingering in the trial Court and the prosecution has examined only seven witnesses out of eleven charge sheet witnesses. Learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain -Vrs.- State (NCT of Delhi) reported in 2023 LiveLaw (SC) 260 and submitted that in view of the period of detention of the petitioner in judicial custody and slow progress of the trial, the bail application of the petitioner may be favourably considered on merit. Learned counsel for the State opposed the prayer for bail mainly on the ground that commercial quantity of ganja has been seized and in view of the bar under section 37 of the N.D.P.S. Act, the petitioner is not entitled to be released on bail. Learned counsel submitted that there is no criminal antecedent against the petitioner. In the said case Mohd Muslim @ Hussain (supra), it is held as follows:- <18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is Page 2 of 6 // 3 // not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.P.C.) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (N.D.P.S. Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: Page 3 of 6 // 4 // likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to in cases when accused of offences enacted under special laws be balanced against the public interest. 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 face 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 Page 4 of 6 // 5 // 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 N.D.P.S. 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.= Considering the submissions made by the learned counsel for the respective parties, keeping in view the slow progress of trial, taking into account the period of detention of the petitioner in judicial custody and the ratio laid down by the Hon’ble Supreme Court in case of Mohd Muslim @ Hussain (supra), I am inclined to release the petitioner on bail. Let 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 for the Court in seisin over the matter with further terms and conditions as Page 5 of 6 // 6 // the learned Court may deem just and proper including the conditions that the petitioner shall appear before the learned trial Court on each date to which the case would be posted for trial and he shall not try to tamper with the evidence and he shall not indulge in any criminal activities in any manner. Violation of any of the conditions shall entail cancellation of bail. Accordingly, the BLAPL is disposed of. Issue urgent certified copy as per Rules. Judge ( S.K. Sahoo) RKM Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Mar-2024 16:35:36 Page 6 of 6