Orissa High Court
Deba Sodi vs State Of Odisha on 13 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.4905 of 2022
Deba Sodi .... Petitioner
Mr. Asit Kumar Jena, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. P.C. Das, ASC
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 13.04.2023
04. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr. Asit Kumar Jena, learned counsel appearing for the
Petitioner and Mr. P.C. Das, learned counsel appearing for the State-
Opposite Party. Perused the materials placed before this Court.
3. The present bail application under Section 439 of Cr.P.C. has
been filed by the Petitioner for regular bail in connection with T.R.
Case No.89 of 2020, arising out of Kalimela P.S. No.107 of 2020,
pending in the Court of learned Sessions Judge-cum-Special Judge,
Malkanagiri for alleged commission of offences punishable under
Sections 20(b)(ii)(C), 27-A and 29 of the N.D.P.S. Act, 1985.
4. The factual background of the case, in a nutshell, is that on
31.08.2020 at 10.30 A.M., the Informant and other staff were
performing night patrolling duty at Kalimela, M.V.66, M.V.23,
Gomphakonda and its nearby areas. While performing such duty at
about 11.30 P.M. near M.V. 66, Kalimela, the Informant got
information from reliable sources that one car entered into
Chintalwada area for loading and transporting of Ganja. After getting
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such information, he along with patrolling staff proceeded towards
the village Chintalwada. On arrival at Chintalwada weekly market,
they found six persons were loading something in a car. On
suspicion the Informant asked them about the loaded bags, they
confessed that they were loading Ganja in the vehicle and
transporting outside of the state. On his demand they could not
produce any authorized license or documents for its possession and
transportation of Ganja. On being asked they disclosed their names
and addresses. Further, they disclosed that Hemananda Sardar, aged
about 25 years, S/o. Prem Kumar Sardar of village MV-23 of village
MV-23, P.S.-Kalimela, Dist.-Malkangiri has hired these people for
transporting of Ganja. The contraband Ganja of 257 Kgs. were
recovered and seized from the conscious possession of the accused
persons. So, the accused persons have been arrested and forwarded
to the Court.
5. It is submitted by the learned counsel for the Petitioner that the
Petitioner is in custody since 01.09.2020. He further submitted that
although charge sheet has been filed and trial has been commenced
in the meantime, no witness has yet been examined and the
Petitioner is languishing in custody for more than 2½ years. He
further contended that the Petitioner does not have similar
antecedent. He further contended that the trial has unnecessary
prolonged and the prosecution has not taking any steps for
examination of the witnesses from their side, as a result of which, the
Petitioner is in jail custody. In view of the aforesaid submission,
learned counsel for the Petitioner submits that the Petitioner be
released on bail on any terms and conditions as would be deemed fit
and proper by this Court.
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6. Learned Additional Standing Counsel appearing for the State-
Opposite Party, on the other hand, opposed the prayer for bail of the
Petitioner on the ground that 257 Kgs. of contraband Ganja have
been recovered from the vehicle from which the Petitioner was
arrested. Taking into consideration the quantity of Ganja seized,
learned Additional Standing Counsel submitted that bar under
Section 37 of the N.D.P.S. Act is attracted to the facts of the present
case. Therefore, he further contended that the Petitioner should not
be enlarged on bail. It is also contended by the learned Additional
Standing Counsel that the release of the Petitioner at this stage would
cause delay in conclusion of the trial.
7. Having heard the learned counsel for the respective parties and
upon a careful consideration of the surrounding facts and
circumstances of the case and keeping in view the fact that the
Petitioner is in custody for more than 2½ years and further the
examination of prosecution witnesses is yet to commence, this Court
is of the considered view that the delay in conclusion of the trial has
to be kept in mind while considering the bar under Section 37 of the
N.D.P.S. Act. The embargo created under Section 37 of the N.D.P.S.
Act is no doubt required to be kept in mind of the Court and the
same is required to be considered while considering the bail
application of the accused-Petitioner, however, the right of the
accused under Article 21 of the Constitution of India for an early
trial being a constitutional guarantee to every citizen is also required
to be considered while applying the bar under Section 37 of the
N.D.P.S. Act. The view of this Court gets support from the order
passed by the Hon'ble Supreme Court in the case of Dheeraj Kumar
Shukla v. The State of Uttar Pradesh (Special Leave Appeal
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No.6690 of 2022, decided on 25.01.2023) as well as by a detailed
judgment in the case of Mohd Muslim @ Hussain v. State (NCT of
Delhi) disposed of on 28.03.2023. In the case of Mohd Muslim @
Hussain (supra), the Hon'ble Supreme Court has specifically
considered the impact of bar under Section 37 of the N.D.P.S. Act
while releasing the Petitioner on regular bail. Paragraphs-19 and 20
of the said judgment, which are relevant for the purpose, are quoted
hereinbelow:-
"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 facie 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 Malik19). 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 NDPS Act
too (ref. Satender Kumar Antil supra). Having regard
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to these factors the court is of the opinion that in the
facts of this case, the appellant deserves to be
enlarged on bail."
8. In view of the aforesaid analysis of law and the authoritative
pronouncements of the Hon'ble Supreme Court, this Court is of the
considered view that the Petitioner be extended on similar benefit on
the ground of delay and, accordingly, it is directed that the Petitioner
be released on bail in the aforesaid case on furnishing bail bond of
Rs.50,000/-(Rupees fifty thousand) with two local solvent sureties
each for the like amount to the satisfaction of the Court in seisin over
the matter with further 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 fortnight 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 without prior permission of
the Court in seisin over the matter.
Violation of any of the terms and conditions shall entail
cancellation of bail.
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9. It is open for the Court in seisin over the matter to impose any
other conditions as may be deemed just and proper.
10. It is further directed that the bail granted to the Petitioner is
subject to the condition that the court below shall verify whether the
Petitioner has any criminal antecedent of similar nature. In the event
it is found that the Petitioner has any criminal antecedent, this bail
order shall automatically stand revoked.
11. 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 court below is at liberty to issue
N.B.W. against the Petitioner forthwith.
12. The BLAPL is, accordingly, disposed of.
( A.K. Mohapatra)
Judge
Debasis
