JUSTICE v. NARASINGH Date of hearing
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.14679 of 2023 Khagapati Baliputia …. Petitioner -versus- State of Odisha …. Opposite Party For Petitioner : Mr. P.V.S. Nanaji Achary & P.Sahu, (Advocates)
Legal Reasoning
the Petitioner again moved this Court in BLAPL No.8719 of 2023.
Arguments
For Opposite Party : Mr. H.K. Panigrahi, ASC, CORAM: JUSTICE V. NARASINGH Date of hearing : 29.01.2024 Date of Order : 29.01.2024 V. Narasingh, J. 1. Heard learned counsel for the Petitioner and learned counsel for the State. 2. The Petitioner is an accused in connection with T.R.Case No.27 of 2020 pending on the file of learned Addl. Sessions Judge- Cum-Special Judge under NDPS Act, Koraput, arising out of Boipariguda P.S. Case No.80 of 2020 for commission of offence alleged under Sections 20(b)(ii)(c) of NDPS Act. 3. Learned counsel, on instruction, submits that except the present BLAPL, no other bail application of the Petitioner relating to the aforementioned P.S. case is pending in any other Court. BLAPL No.14679 of 2023 Page 1 of 5 4. Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Addl. Sessions Judge-Spl, Judge, Jeypore, I/c by order dated 22.09.2023 in the aforementioned case, the present BLAPL has been filed. 5. It is submitted by the learned counsel that the Petitioner is in custody since 14.06.2020 on the allegation that he along with co-accused involved in transportation of contraband (ganja) to the tune of 1000 kgs. 6. Taking into account the period of custody, this Court by order dated 13.03.2023 in BLAPL No.12239 of 2022 called upon the learned Court in seisin to conclude the trial within the period of four months. Since the trial was not concluded within the time stipulated
Decision
The same was disposed of by order dated 15.09.2023 taking note of the report submitted by the learned Court in seisin that the time limit fixed by this Court was not placed before it till 29.08.2023. And learned Court in seisin was requested to conclude the trial by the end of November,2023. 6A. Since the trial was lingering because of non-availability of P.O., on the Administrative side, the trial record was transferred to the Court of learned Sessions Judge with the kind permission of the Hon’ble Administrative Judge. 7. It is submitted by the learned counsel that though the petitioner is in custody since for almost 3 years 7months, there is no progress in trial. Considering the same, Registrar(Judicial) was BLAPL No.14679 of 2023 Page 2 of 5 requested to place on record further report regarding the present status in the case at hand(T.R. Case No.27 of 2020). 8. Status of the case at hand as borne out from the report submitted by the learned Registrar(Judicial) on the basis of communication of the learned Dist. Judge is culled out hereunder for ready reference: xxx xxx xxx Judge, Koraput Judge-cum-Special “The case was withdrawn from the Court of Additional Sessions Judge-cum-Special Judge, Jeypore to the Court of on Sessions 02.01.2024. So far three (3) witnesses have been examined by the learned Additional Sessions Judge-cum-Special thirteen (13) charge sheeted Judge, Jeypore out of witnesses. Now the case stands posted to 21.02.2024 for trial and summonses have been issued to charge sheeted witnesses for their examination. The Public Prosecutor has been asked to submit a list of witnesses whom the prosecution wishes to examine on priority basis, so that the trial can be expedited. xxx xxx xxx” 9. Learned counsel for the State opposes the prayer for bail in view of bar under Section-37(1)(b)(ii) of the NDPS Act. 10. It is no doubt true that, prima facie, Section-37(1)(b)(ii) of the NDPS Act is a bar in the case at hand but at the same time this Court cannot be oblivious to the plight of the accused, who is facing trial for more than 3 and half years and in the factual matrix of the case at hand, no fault can be attributed to the Petitioner-accused, who is stated to be the first offender. 11. In this context it is apt to quote from the recent judgment of the Apex Court in the case of Mohd. Muslim @ Hussain Vs. BLAPL No.14679 of 2023 Page 3 of 5 State(NCT of Delhi) reported in 2023 SCC Online SC 352 and the observation of Court referring to the decision in the case of Union of India V. K.A. Najeeb reported in (2021)3 SCC 713. “xxx xxx xxx The Court concluded that “statutory restrictions like Section 43-D(5) of the UAPA, cannot fetter a constitutional court’s ability to grant bail on ground of violation of fundamental rights.” xxx xxx xxx” 12. Keeping in view the factual matrix of the case at hand it is also apposite to quote the decision of the Apex Court in the case of Rabi Prakash vs. The State of Odisha reported in 2023 SCC OnLine SC 1109. The prolonged “xxx xxx xxx 4. 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 statutory embargo created under Section the 37(1)(B)(ii) of the NDPS Act. xxx xxx xxx” 13. Considering in the light of the aforementioned judgments taking into account that the Petitioner is the first offender and he is in custody since 14.06.2020 and trial is lingering for which no fault can be attributed to the Petitioner as noted, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned Court in seisin. 14. Before releasing, learned Court in seisin is requested to verify the criminal antecedent of the Petitioner. If it comes to fore BLAPL No.14679 of 2023 Page 4 of 5 that the Petitioner has criminal antecedent of any nature, this order shall not be given effect to. 15. Additionally, it is directed that the Petitioner shall appear before the jurisdictional police station once every week 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 Court in seisin. 16. 17. Accordingly, the BLAPL stands disposed of. Urgent certified copy of this order be granted as per rules. (V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 29th January, 2024/ Soumya Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Reason: Authentication Location: High Court of Orissa Date: 31-Jan-2024 20:11:11 BLAPL No.14679 of 2023 Page 5 of 5