Orissa High Court
Mahamad Sakib @ Shakib vs State Of Odisha on 23 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.1687 of 2021
Mahamad Sakib @ Shakib .... Petitioner
Mr. S.K. Mishra, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. P.C. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 23.08.2022
08. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner and learned counsel
for the State. Perused the F.I.R., case diary and other relevant
documents as well as statement of the witnesses.
3. This is an application under Section 439 of the Criminal
Procedure Code.
4. The petitioner is an accused in G.R. Case No.38 of 2020
arising out of Mohana P.S. Case No.124 2020 pending in the court of
learned Special Judge-cum-Sessions Judge, Gajapati,
Paralakhemundi for commission of offence punishable under
Sections 20(b)(ii)(C)/25/29 of the N.D.P.S. Act.
5. The prosecution allegation in the F.I.R. in brief is that on
10.08.2020 at about 7.00 A.M., the informant along with other police
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staff while conducting patrolling duty at Raising Chhak on NH 326
road, detained a white colour swift desire car. On being asked, the
driver disclosed his identity. During patrolling the police party
observed that one white colour Bolero pick up was coming in high
speed. The said vehicle stopped by the police. When they searched
the Bolero, they found five number of white colour plastic jerry bag
packets and on further search of the packets, 102 Kgs. 600 grams
(without bag) contraband ganja was found. On further interrogation
the driver of the vehicle and inmates of the Bolero, the driver
confessed that he along with the other inmates of his vehicle as well
as the inmates of the swift desire procured the same from Kenduguda
area of Rayagada and were transporting the same towards their
village to sell the same at a higher price.
6. It is submitted by Mr. S.K. Mishra, learned counsel for the
petitioner that the petitioner is languishing in jail custody since
10.08.2020. He further submits that investigation of the case has
been completed and charge-sheet has been submitted in the case.
However, learned counsel for the petitioner further contends that
although charge-sheet has been submitted, trial of the case has not
commenced as of now. Mr. Mishra, learned counsel for the petitioner
relying on the judgment rendered in the case of Hussainara Khatoon
vrs. State of Bihar: reported in AIR 1979 S.C. 1819 wherein it has
been held by Hon'ble Supreme Court that right to speedy trial is a
fundamental right of every citizen which has been guaranteed under
the Constitution of India. In such view of the matter, learned counsel
for the petitioner submits that since there is no scope of absconding or
fleeing away from justice, the bail application of the petitioner may be
considered and allowed.
7. Further, it is submitted by learned counsel for the petitioner
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that co-accused persons, who are on similar footing with the present
petitioner, namely, Sabir Ahamad has already been released on bail
in BLAPL No.9179 of 2020 vide order dated 29.07.2021 and two
other co-accused persons, namely, Mubbarak Ansari and Jamluddin
Mamin @ Jamil have been released on bail by this Court in BLAPL
No.7273 of 2020 vide order dated 12.04.2021. It is also submitted
by learned counsel for the petitioner that the petitioner was only
occupant of the Bolero vehicle and he did not have any knowledge
about fact that contraband ganja were kept in the said vehicle.
8. Mr. Das, leaned Additional Standing Counsel for the State
vehemently opposes the prayer for bail of the Petitioner and submits
that the petitioner was arrested at the spot along with two other co-
accused persons. He does not dispute the fact that two other co-
accused persons as has been described in the previous para have
already released on bail. However, learned counsel for the State
submits that the number of such cases are increasing day-by-day in
the State of Odisha and therefore, no leniency should be shown to the
petitioner or similarly situated other persons. He further contends that
the petitioner belongs to the State of Jharkhand and as such, he may
not be participated in trial once he is released on bail.
9. Having heard learned counsel for the parties and upon a
careful consideration of all the materials placed before this Court,
this Court is of the considered view that the present petitioner stands
on similar footing with the accused Sabir Ahamad, Mubbarak Ansari
and Jamluddin Mamin @ Jamil, who have already been released on
bail by this Court in BLAPL No.9179 of 2020 vide order dated
29.07.2021 and BLAPL No.7273 of 2020 vide order dated
12.04.2021. Further on perusal of the sequence of the facts of the
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case, this Court thinks that the present petitioner stands on similar
footing with the other co-accused persons, who have already been
released on bail. Therefore, this Court is of the considered opinion
that parity should be maintained by this Court while releasing the
accused persons on bail in the larger interest of the justice.
10. Taking into consideration the aforesaid facts, it is directed that
let the petitioner be released on bail on furnishing a bail bond of
Rs.50,000/- (rupees fifty thousand) with two local solvent sureties
each for the like amount to the satisfaction of the learned court in
seisin over the matter subject to 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 month 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 and shall furnish his
address and mobile number to the police and up-
date the same from time to time.
Violation of any of the terms and conditions shall entail
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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 learned court below shall verify whether
the petitioner has any criminal antecedents of similar nature. In the
event it is found that the petitioner has similar criminal antecedents,
this bail order shall not be given effect to.
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 learned 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
Jagabandhu
