Orissa High Court
Prasanta Kumar vs State Of Odisha on 14 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.516 of 2015
Prasanta Kumar .... Appellant/
Samantaray Petitioner
Mr. M.R. Das, Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr.P.B. Tripathy
Addl.Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 14.08.2023
Misc. Case No.1399 of 2015
30. This matter is taken up through Hybrid
arrangement (video conferencing/physical Mode).
This is an application for grant of bail.
Learned counsel for the petitioner does not want to
press this interim bail application.
Accordingly, the Misc. Case is disposed of as not
pressed.
( S.K. Sahoo)
Judge
I.A. No.1508 of 2023
31. This is an application for grant of bail.
Heard the learned counsel for the appellant-
petitioner and learned counsel for the State.
The appellant-petitioner Prasanta Kumar
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Samantaray has been convicted for the offence
punishable under section 20(b)(ii)(C) of the N.D.P.S. Act
and section 47(a) of the Bihar and Orissa Excise Act and
sentenced to undergo R.I. for a period of ten years and to
pay a fine of Rs.1,00,000/- (rupees one lakh), in default,
to undergo R.I. for a further period of two years for the
offence under section 20(b)(ii)(C) of the N.D.P.S. Act and
sentenced to undergo R.I. for a period of three years and
to pay a fine of Rs.20,000/- (rupees twenty thousand), in
default, to undergo R.I. for a further period of six months
for the offence under section 47(a) of the Bihar and
Orissa Excise Act and both the sentences were directed to
run concurrently by the learned 2nd Addl. Sessions Judge,
Khurda in T.R. No.07 of 2014.
Learned counsel for the State has produced the
custody certificate received from the Superintendent,
Sub-Jail, Khordha which indicates that the petitioner has
already undergone substantive sentence of eight years
and eight months. The said certificate is taken on record.
Learned counsel for the petitioner submitted that the
petitioner was granted interim bail by this Court on five
occasions for eighteen days, twenty days each on twice,
ten days and four months and the last interim bail order
was extended for another one month and after availing
the same, he surrendered at right time. Learned counsel
has relied upon the decision of the Hon'ble Supreme
Court in the case of Mohd Muslim @ Hussain -Vrs.-
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State (NCT of Delhi) reported in 2023 LiveLaw (SC)
260 and contended that in spite of the bar under section
37 of the N.D.P.S. Act, since the petitioner is in judicial
custody for more than eight years and eight months out
of ten years of substantive sentence and there is no
likelihood of the appeal being taken up for hearing,
therefore, the bail application may be favourably
considered.
Learned counsel for the State, on the other hand,
opposed the prayer for bail and submitted that the ratio
laid down in the case of Mohd Muslim @ Hussain
(supra) is not applicable to the petitioner in the case in
hand.
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
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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
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
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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 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
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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, 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, the substantive
sentence imposed by the learned trial Court, the period
already undergone by the petitioner in judicial custody,
the conduct of the petitioner in complying with the earlier
interim bail orders passed by this Court from time to time,
absence of any chance of early hearing of the appeal in
the near future and the ratio laid down by the Hon'ble
Supreme Court in the case of Mohd Muslim @ Hussain
(supra), I am inclined to release the petitioner on bail.
Let the petitioner be released on bail pending
disposal of the appeal on furnishing bail bond of
Rs.50,000/- (rupees fifty thousand) with two local solvent
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sureties each for the like amount to the satisfaction of the
learned trial Court on such other conditions as the learned
trial Court may deem just and proper.
The I.A. is accordingly disposed of.
Issue urgent certified copy as per Rules.
( S.K. Sahoo)
Judge
sipun
Signature Not Verified
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Aug-2023 11:15:37
