Orissa High Court
Bhushana Gamparai @ vs State Of Odisha .... Opposite Party on 12 December, 2023
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 9052 of 2022
Bhushana Gamparai @ .... Petitioner
Bhusana Gamphahrai
Mr. D.R. Bhokta, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. H.K. Panigrahi, ASC
CORAM: JUSTICE V. NARASINGH
ORDER
12.12.2023
Order No.
03. 1. Heard learned counsel for the Petitioner and learned
counsel for the State.
2. The Petitioner is an accused in connection with T.R. Case
No.113 of 2021, pending before the Court of the learned Addl.
Sessions Judge-Cum-Special Judge, Koraput, arising out of
Nandapur P.S. Case No.133 of 2021, for alleged commission of
offences under Sections-20(b)(ii)C of NDPS Act.
3. Learned counsel, on instruction, submits that except the
present BLAPL, no other bail application of the Petitioner relating
to the aforementioned P.S. Case is pending in any other Court.
4. Being aggrieved by the rejection of his application for bail
U/s.439 Cr.P.C. by the learned Addl. S.J.-cum-Spl. Judge, Koraput
by order dated 02.08.2022 in the aforementioned case, the present
BLAPL has been filed.
5. It is submitted by the learned counsel that the Petitioner is
in custody since 28.12.2021. The allegation against the present
petitioner is that he along with co-accused are involved in
transportation of ganja to the tune of 205 kg 200 grams.
6. On the ground of long incarceration and alleging violation
of the fundamental right of the Petitioner for speedy trial, the
Petitioner seeks release.
7. In this context the learned counsel for the Petitioner relies
on the celebrated judgment of the Apex Court in the case of
Hussainara Khatoon & others vrs. State of Bihar, reported in (1980) 1
SCC 81.
8. Learned counsel for the State opposes the prayer and
submits that in view of the bar contained in Section 37(1)(b)(ii),
since there is no materials on record which unerringly points to the
complicity of the Petitioner merely because of long incarceration,
the Petitioner cannot be released on bail more so in an accusation
under the NDPS Act where the grant of bail is an exception
unlacing other offences.(Ref: State of Madhya Pradesh vs. Kajad
reported in (2001) 7 SCC 673).
9. Learned counsel for the State also submits that since the
bail application of the co-accused was rejected by this Court by
order dated 06.02.2023 in BLAPL No.9772 of 2022, the present bail
application does not merit consideration.
10. It is apt to note here that what weighed with this Court in
rejecting the bail application of the co-accused has been stated in
paragraph-5 of the order dated 06.02.2023 in BLAPL No.9772 of
2022 and the same is extracted hereunder:
"xxx xxx xxx
Learned counsel for the State, on instruction,
submits that the petitioner is accused of committing
an offence of similar nature being cited as an
accused in Sadar P.S. Case No.535 of 2021 under
Sections 18 & 15 of NDPS Act (District-Bundi,
State-Rajasthan)
xxx xxx xxx"
11. To test the veracity of the submission of the learned
counsel for the Petitioner regarding tardy progress in trial, a report
was called for from the learned Court in seisin and the report
submitted by the learned Addl. S.J.-cum-Spl. Judge, Koraput is
reproduced hereunder.
"xxx xxx xxx
In compliance of the order of Hon'ble Court vide Order
No. 02 dated: 23.11.2023 passed in BLAPL No. 9052 of 2022
(Bhusan Gamparai @Bhusan Gamphahrai -Vrs- State of
Odisha), arising out of T.R. case No. 113/2021 corresponding
to Nandapur P.S. case No 133 dated 28.12.2021, this is to
submit that no charge sheeted witness has been examined till
today. Now the case stands posted to 19.12.2023 for trial.
It is humbly submitted that this Court remained vacant
for about one month after the superannuation of the Ex-
Additional Sessions Judge - cum- Special Judge, under the
NDPS Act, Koraput, Mr. Mahalat Sa, for which no substantial
progress in trial has been made in the mean time. The
undersigned shall strive hard to dispose of the case in one year.
xxx xxx xxx"
12. It indeed sad that though the accused in custody since
28.12.2021, no charge sheet witnesses have been examined till date.
While being conscious of the fact that the before releasing an
accused, this Court has to be satisfied on the twin ground as
enjoined upon it under Section-37(1)(b)(ii) of the NDPS Act. But at
the same time, this Court cannot be oblivious of the right of the
accused to a speedy trial which has been left to be a fact of the
fundamental right.
13. It is on record, as stated by the learned counsel for the State
that the prosecution seeks to rely on 15 witnesses.
14. On instruction, learned counsel for the Petitioner submits
he is the first offender and he is a local and resides within the
territorial jurisdiction of this Court.
15. On a conspectus of materials on record and keeping in
view the dictum of the Apex Court in the case of Rabi Prakash vs.
The State of Odisha reported in 2023 SCC online SC 1109, this
Court directs the petitioner to be released on bail on such terms to
be fixed by the learned Court in seisin subject to verification of
criminal antecedent.
16. If it comes to fore that the Petitioner has any criminal
antecedent, this order shall not be given effect to.
17. Additionally, It is directed that the Petitioner shall appear
before the jurisdictional police station twice every week on such
date and time to be fixed by the learned Court in seisin till
conclusion of trial. Certification of such appearance shall be
submitted to the Court in seisin.
18. It is further directed that one of the family members of the
Petitioner shall execute a P.R bond in addition to the sureties in
terms of the order of the learned Court in seisin. The Petitioner shall
not leave the jurisdiction of the learned Court in seisin without its
express permission and intimation to I.O.
19. Accordingly, the BLAPL and I.A. stands disposed of.
20. Urgent certified copy of this order be granted as per the
rules.
(V. NARASINGH)
Judge
Soumya
Signed by: SOUMYA RANJAN SAMAL
Location: High Court of Orissa
Date: 13-Dec-2023 20:18:10
