Kapilesh @ Kapilasa vs State Of Odisha
2023 Latest Caselaw 9732 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.202 of 2023

              Kapilesh @ Kapilasa              ....   Appellant/
              Mallick                               Petitioner

                                 Mr.P.C. Sejpada, Advocate

                                    -versus-

              State of Odisha                  ....   Respondent/
                                                    Opp.Party

                                 Mr. Priyabrata Tripathy
                                 Addl. Standing Counsel

                                  CORAM:
                            JUSTICE S.K. SAHOO

                                  ORDER

Order No.                       22.08.2023
                           I.A. No. 429 of 2023

05. This matter is taken up through Hybrid Arrangement (Video Conferencing/Physical Mode).

This is an application for bail.

The appellant-petitioner has been convicted under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo rigorous imprisonment for a further period of two years by the learned Judge, Special Court Kandhamal, Phulbani vide judgment and order dated 16.11.2018 in C.T. Case No.122 of 2016.

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Learned counsel for the petitioner submits that the petitioner is in judicial custody since 17.09.2016 and thus, out of ten years of substantive sentence imposed on him by the learned trial Court, he has already undergone seven years of sentence and he is a local man and there is no chance of absconding. 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 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

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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 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,

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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 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

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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, 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 sentence imposed by the learned trial Court, the period already undergone by the petitioner in judicial custody and keeping in view the ratio laid down by the Hon'ble Apex Court in Mohd Muslim @ Hussain (supra), I am inclined to release the

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petitioner on bail.

Let the appellant-petitioner be released on bail pending disposal of the appeal on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) with two solvent sureties each for the like amount to the satisfaction of the learned trial Court with such terms and conditions as the learned Court may deem just and proper. Violation of any of the conditions shall entail cancellation of bail.

The I.A. is disposed of.

( S.K. Sahoo) Judge

I.A. No. 428 of 2023

06. This is an application for stay of realization of fine.

Heard.

There shall be stay of realization of fine amount imposed on the appellant-petitioner pursuant to the order dated 16.11.2018 passed by the learned Judge, Special Court Kandhamal, Phulbani in C.T. Case No.122 of 2016 pending disposal of the criminal appeal.

The I.A. is disposed of.

Issue certified copy as per rules.

( S.K. Sahoo) Judge Signature PKSahoo Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 23-Aug-2023 10:28:19