Orissa High Court
Chandan Ram @ Channa vs State Of Odisha on 14 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.460 of 2016
Chandan Ram @ Channa .... Appellant/
Ram Petitioner
Mr.K.K. Rout, 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
I.A. No.1686 of 2023
18. This matter is taken up through Hybrid
arrangement (video conferencing/physical Mode).
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 Chandan Ram @ Channa
Ram has been convicted for the offence punishable under
section 20(b)(ii)(C) of the N.D.P.S. 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 period of one year by the learned Special Judge,
Athgarh in Special Case No.03 of 2015.
Learned counsel for the petitioner submitted that the
petitioner was granted interim bail for a period of three
months as per the order dated 17.10.2022 passed in I.A.
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No.493 of 2022 and after availing the same, he
surrendered at right time and he has already undergone
seven years and four months of substantive sentence out
of ten years of substantive sentence imposed on him by
the learned trial Court. Learned counsel has relied upon
the decision of the Hon'ble Supreme Court in the case of
Mohd Muslim @ Hussain -Vrs.- 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 seven years and four months 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
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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
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:
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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 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
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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, 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,
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
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Rs.50,000/- (rupees fifty thousand) with two local solvent
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
I.A. No.1687 of 2023
19. This is an application for early hearing of the appeal.
Since the paper book has not been prepared, the
matter shall be considered after preparation of the paper
book.
( 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
