Dolamani Bagarti vs State Of Odisha
2023 Latest Caselaw 3393 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            BLAPL No.7565 of 2022

               Dolamani Bagarti                     ....      Petitioner

                                    Mr. A. Tripathy, Advocate

                                         -versus-

               State of Odisha                      ....     Opp. Party

                                    Mrs.Susamarani Sahoo,
                                    Addl. Standing Counsel

                                   CORAM:
                              JUSTICE S.K. SAHOO
                                     ORDER

Order No. 13.04.2023

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 Kantamal P.S. Case No.108 of 2017 corresponding to Special (NDPS) Case No.20 of 2018 pending in the Court of learned Addl. Sessions Judge - cum- Special Judge, Boudh 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 Addl. Sessions Judge -cum- Special Judge, Kantamal, Boudh which was rejected on 23.07.2022.

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Learned counsel for the petitioner submitted that the petitioner was taken into judicial custody in connection with this case on 18.09.2017 and since there was delay in commencement of the trial, the petitioner was granted interim bail for a period of three months in BLAPL No.10842 of 2021 as per the order dated 31.03.2022 and after availing the same, the petitioner surrendered at right time. Learned counsel further submitted that the petitioner is a local man and in view of inordinate delay in disposal of the trial without any fault on the part of the petitioner, the bail application may be favourably considered.

Learned counsel for the State, on the other hand, opposed the prayer for bail stating that commercial quantity of ganja has been seized in this case 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.

Perused the status report dated 23.02.2023 furnished by the learned trial Court from which it reveals that out of twenty five charge sheet witnesses, two witnesses have been examined and one Vikash Singh was granted interim bail but he did not surrender after expiry of the stipulated period of interim bail for which non-bailable warrant of arrest has been issued against him.

Learned counsel for the petitioner has relied upon

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the decision of the Hon'ble Supreme Court in case of Mohd Muslim @ Hussain -Vrs.- State (NCT of Delhi) reported in 2013 LiveLaw (SC) 260 wherein 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 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

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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: 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

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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 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,

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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 and taking into account the period of detention of the petitioner in judicial custody and the ratio laid down in the 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.2,00,000/- (rupees two lakh) with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with further terms and conditions that while on bail, the petitioner shall not try to come in contact with any of the prosecution witnesses or tamper with the evidence, he shall not indulge in any criminal activities and he shall appear before the learned trial Court on each date on which the date would be fixed for trial.

Violation of any terms and conditions shall entail cancellation of bail.

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Accordingly, the BLAPL is disposed of. Issue urgent certified copy as per Rules.

( S.K. Sahoo) Judge

Sipun