JUSTICE v. NARASINGH Date of hearing & judgment
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.14662 of 2023 Aminur Molla …. Petitioner State of Odisha -versus- …. Opposite Party BLAPL No.14667 of 2023 Sainur Molla …. Petitioner State of Odisha -versus- …. Opposite Party
Legal Reasoning
charge sheet establishes prima facie case against the Petitioners and in this context he relies on the recent exposition of law in NDPS Act in the case of State by the Inspector of Police vs. B. Ramu arising out of SLP(Crl.) No(s).8137 of 2022. 11-A. Paragraph-14 of the said order is extracted hereunder”- “The fact that after investigation, the charge-sheet has been filed against the respondent-accused along with other accused persons, fortifies the plea of the State counsel that the Court could not have recorded a satisfaction that the accused was prima facie not guilty of the offences alleged.” 12. There is no cavil about the law laid down by the recent order referred to hereinabove, at the same time seminal duty is cast on the Courts to ensure that in cases under the Special Act where the grant of bail has been recognized as an exception (Ref:- State of Madhya Pradesh vs. Kajad, (2001) 7 SCC 673) as opposed to the general perception that bail is the rule and jail is the exception, the rights of the under trials are jealously protected. 12-A. The relevant extract of the said judgment is as under:- “The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is BLAPL No.14662 of 2023 Page 4 of 8 evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub clause (ii) of clause (b) of Section 37(1)….” for a 13. Onerous duty is cast on the prosecution as well as the system of dispensation of justice to ensure that the under trials like the Petitioners who are in custody should not suffer. 14. On a bare perusal of the report submitted by the learned Court in seisin, it is clear that the case is lingering because of non- availability of the P.O. 15. Accused cannot suffer for the lacunas of the system for whatever reason that may be. 16. It is apt to note here that the Apex Court in the case of Hussainara Khatoon & others vrs. State of Bihar, (1980) 1 SCC 81 observed thus:- “……….no procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. …….” 17. And, in the case of Satender Kumar Antil vrs. Central Bureau of Investigation & another, 2022 (10) SCC 51 the Apex Court held thus: “xxx xxx xxx The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would BLAPL No.14662 of 2023 Page 5 of 8 not come in the way in such a case as we are dealing with the liberty of a person. xxx xxx xxx” 17-A. For convenience of ready reference Section 436-A of Criminal Procedure Code is culled out hereunder:- “[436-A. Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.- In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.]” 18. The observation of the Apex Court in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648 more particularly paragraph-21 thereof is extracted hereunder for convenience of ready reference; “…… laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials BLAPL No.14662 of 2023 Page 6 of 8 are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. ……….” 19. The Apex Court in the case of Rabi Prakash vrs. State of Odisha, 2023 SCC Online SC 1109 has held thus: “………….. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 20. Hence, keeping in view the time tested principles of rights of an accused for speedy trial as enunciated by the Apex Court in the case of Hussainara Khatoon (Supra) and in the case of Satender Kumar Antil (Supra) and recently reiterated by the Apex Court in the case of Mohd. Muslim @ Hussain (Supra) and in the case of Rabi Prakash (Supra), this Court directs the Petitioners to be released on bail on such terms to be fixed by the learned Court in seisin. 21. Additionally, it is directed that the Petitioners shall appear before the jurisdictional police station once every month on such date and time to be fixed by the learned Court in seisin till conclusion of trial. Certification of such appearance shall be submitted to the learned Court in seisin. 22. To allay the legitimate apprehension of the learned Public Prosecutor regarding ensuring the presence of the Petitioners during trial since they do not belong to the State of Odisha, additionally it is directed that one of the family members of the Petitioners shall BLAPL No.14662 of 2023 Page 7 of 8 execute the P.R bond in addition to the sureties in terms of the order of the learned Court in seisin and the criminal antecedent of Petitioners from P.S.-Habra-1, Dist.-North Pargana, State-West Bengal shall also be called for. 23. If it comes to fore that the Petitioners have any criminal antecedent, this order shall stand recalled. 24.
Arguments
For Petitioner : Mr. S.S. Dash, Advocate For Opposite Party : Mr. H.K. Panigrahi, ASC CORAM: JUSTICE V. NARASINGH Date of hearing & judgment:23.02.2024 V. Narasingh, J. 1. Since both the BLAPLs relate to the same P.R. Case (Cuttack P.R. Case No.237 of 2022-23) they are heard together and disposed of by this common order, on the consent of the parties. 2. Heard learned counsel for the Petitioners and learned counsel for the State. 3. The Petitioners are accused in connection with 2(a) C.C. No.47 of 2022, pending in the Court of the learned 3rd Additional BLAPL No.14662 of 2023 Page 1 of 8 Sessions Judge, Cuttack, arising out of P.R. Case No.237 of 2022- 23 for alleged commission of offences under Sections 20(b)(ii)(C) of the NDPS Act. 4. Learned counsel, on instruction, submits that except the present BLAPLs, no other bail application of the Petitioners relating to the aforementioned P.S. Case is pending in any other Court. 5. Being aggrieved by the rejection of their application for bail U/s.439 Cr.P.C. by the learned 3rd Additional Sessions Judge, Cuttack, I/c, by order dated 19.12.2023 in the aforementioned cases, the present BLAPLs have been filed. 6. Earlier the bail application of the Petitioner (Aminur Molla) in BLAPL No.14662 of 2023 and the Petitioner (Soinur Molla) was rejected by common order dated 26.06.2023 in BLAPL Nos.4908 & 4900 of 2023 respectively. 7. It is submitted by the learned counsel that the Petitioners are in custody since 24.07.2022 and there is no progress in trial. 8. Taking note of the same, a report was called for from the learned Court in seisin. The said report is extracted hereunder:- xxx xxx xxx “This is a case initiated against the accused persons namely Sainur Molla, Aminur Molla and Alam Mandal for the offence u/s 20(b)(ii)(C) of the NDPS Act. This case was instituted before the Court of Sessions Judge-cum- Special Judge, Cuttack on 24.07.22 and received on transfer by this court on 23.06.23. Charge u/s 20(b)(ii)(C) of the NDPS Act has been framed against the accused persons on 03.07.23 and the case was posted to 05.08.23 for recording of evidence. In this case, the I.I.C of Excise, EI & EB, Unit-II, Cuttack submitted final P.R and cited three witnesses including I.O. Till date, no witnesses have been examined. Now the case stands posted to BLAPL No.14662 of 2023 Page 2 of 8 06.03.2024 for recording of evidence of the prosecution witnesses. With regard to the report sought for by the Hon'ble Court concerning the non-availability of the Court in seisin, I am to intimate that presently, this Court is functioning without its Presiding Officer as the previous P.O. has been transferred since 27.09.2023 for which, the trial of the case has been stalled since then. Further resumption of the trial and its eventual completion awaits joining of the new Presiding Officer to this Court.” xxx xxx xxx 9. On the of ground of pretrial detention as an affront to Article 21 of the Constitution, learned counsel for the Petitioner seeks release. 10. While learned counsel for the State with his usual fairness does not oppose such proposition and submits that the same cannot have any universal application and more so in view of the rigors of Section 37(1)(b)(ii) of NDPS Act and the accusation against them being seizure of contraband to the tune of 104Kgs (Ganja). 10-A. Section 37(1)(b)(ii) of NDPS Act is quoted below for convenience of ready reference:- “[37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure Code, 1973 (2 of 1974) - (a) (b) every offence punishable under this Act shall be cognizable; no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and BLAPL No.14662 of 2023 Page 3 of 8 (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]” 11. It is further submitted that this Court should not also lose sight of the fact that the Petitioners are flight risk and filing of
Decision
Accordingly, the BLAPLs stand disposed of. (V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 23rd of February, 2024/ Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Feb-2024 16:43:32 BLAPL No.14662 of 2023 Page 8 of 8