Banturam Sahu vs Unknown
2023 Latest Caselaw 3395 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                          BLAPL No. 3713 of 2022

              Banturam Sahu                     ....   Petitioner

                                Mr. Julu Khansama, Advocate

                                     -versus-

              State of Odisha                   .... Opp.Party

                                Mrs. Susamarani Sahoo,
                                Addl. Standing Counsel

                                 CORAM:
                            JUSTICE S.K. SAHOO

                                  ORDER

Order No. 13.04.2023

05. 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 Sonepur P.S. Case No.240 of 2016 corresponding to Special G.R. Case No.34 of 2016 pending in the Court of learned Addl. 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 Addl. Sessions Judge -cum- Special Judge, Sonepur which was rejected on 16.04.2022.

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Learned counsel for the petitioner submitted that the petitioner was taken into judicial custody in connection with this case on 19.12.2016 and when he approached this Court first time in BLAPL No.4928 of 2017 as per order dated 29.06.2018, taking into account the period of detention of the petitioner in judicial custody, the learned trial Court was directed to frame charge and to conclude the trial by end of December 2018. Learned counsel further submitted that the petitioner approached this Court second time in BLAPL No.8038 of 2019 and taking into account the delay disposal of the trial, he was granted interim bail for a period of four months as per order dated 22.01.2021.

Perused the status report furnished by the learned trial Court dated 30.09.2022 which indicates that out of twenty two charge sheet witnesses, eight witnesses have been examined. Learned counsel for the petitioner submitted that the same position is still continued.

Learned counsel for the State was asked to obtain instruction as to whether the address furnished by the petitioner in the cause title is a correct one or not since the petitioner is a man from State of Chhatisgarh.

Learned counsel for the State has produced the written instruction dated 22.11.2022 received from the Superintendent of Police, Subarnapur from which it

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appears that even though the petitioner has shown that he belongs to Janjgir district but the said district has been divided and at present, the residence of the petitioner is in Shakti district (Chhatisgarh). The said instruction is taken on record.

As per the order of this Court, learned counsel for the petitioner supplied the names and addresses of the two local sureties along with their documents to the learned counsel for the State, who was directed to verify the same.

Today, learned counsel for the State has produced the written instruction dated 04.02.2023 received from the Inspector in-charge of Sonepur Police Station which indicates that the local sureties, namely, 1) Sudam Tandi (29), S/o- Lt. Raghunath Tandi of village Lakarma, P.S. Sonepur, District-Subarnapur and 2) Sagar Suna (48), S/o- Lt. Budu Suna of village balijuri, P.S. Sonepur, District-Subarnapur are genuine and their documents are also genuine and they are having no criminal antecedent and they expressed their willingness to be the sureties of the petitioner. The written instruction is taken on record.

Learned counsel for the petitioner has relied upon 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 and submitted that in view of the period of detention of the petitioner in

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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, 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.

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 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

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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: 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.

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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 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

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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.2,00,000/- (rupees two lakh) with two local solvent sureties namely, 1) Sudam Tandi (29), S/o- Lt. Raghunath Tandi of village Lakarma, P.S. Sonepur, District-Subarnapur and 2) Sagar Suna (48), S/o- Lt. Budu Suna of village

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balijuri, P.S. Sonepur, District-Subarnapur each for the like amount to the satisfaction of the learned Court in seisin over the matter with further terms and conditions as 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 is posted for trial, shall not try to tamper with the prosecution evidence and he shall not indulge in any criminal activities.

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

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

( S.K. Sahoo) Judge Sipun