Bishnu Prasad Sahu vs State Of Odisha
2023 Latest Caselaw 7522 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   BLAPL No.555 of 2023

                 Bishnu Prasad Sahu                  ....          Petitioner
                                         Mr. Bigyan Kumar Sharma, Advocate
                                          -versus-
                 State of Odisha                     ....         Opp. Party
                                                         Mr. P.C. Das, ASC

                            CORAM:
                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              13.07.2023
    04.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard Sri B.K. Sharma, 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 Spl. G.R. Case No.08 of 2021, arising out of Badagada P.S. No.61 of 2021, pending in the Court of learned Additional Sessions Judge- cum-Special Judge, Bhanjanagar for alleged commission of offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985.

4. The factual background of the case, in a nutshell, is that on 09.03.2021 at about 6.00 A.M. in the morning while the informant and other staff were performing patrol duty, they received reliable information regarding illegal transportation of contraband Ganja. Accordingly, the informant detained one Pick-up van bearing Registration No.OD-07Z-4327. On seeing the police signal, the vehicle stopped and on checking of the vehicle, the police personnel // 2 //

found bags were loaded in the vehicle and three persons including the driver and owner were present in the vehicle. On search of the vehicle, the informant found bags containing Ganja weighing 144 Kilo 0.30 Gram of Ganja. Thereafter, other formalities were conducted and the accused persons were forwarded to the Court.

5. Mr. B.K. Sharma, learned counsel appearing for the Petitioner submitted that the Petitioner is in custody since 9.3.2021. He further submitted that although the trial has commenced, however, the same is progressing very slow stage and not likely to be concluded in near future. He further submitted that one co-accused, namely, Tukuna Barik has already been released on bail vide order dated 22.12.2022 passed by this Court in BLAPL No.7470 of 2022. He further contended that the Petitioner stand in similar footing with the co- accused who has already been released on bail by this Court. In course of argument, Mr. Sharma submitted that the Petitioner is in custody for more than three years, however, the trial could not be concluded. Referring to the judgment of the Hon'ble Apex Court in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal No.6690 of 2022, decided on 25.01.2023) as well as by a detailed judgment in the case of Mohd. Muslim alias Hussain v. State (NCT of Delhi), reported in 2023 SCC OnLine SC 352, submitted that since there is a delay in conclusion of the trial, the bar under Section 37 of the N.D.P.S. Act is not attracted to the facts of the present case, as has been held by the Hon'ble Supreme Court in the aforesaid judgment.

6. Learned Additional Standing Counsel appearing for the State- Opposite Party, on the other hand, submits that upon getting credible information, the police officers, who were on patrolling duty, // 3 //

stopped the vehicle and the Petitioner and others were arrested from the spot. He further contended that on search, contraband articles were found from the truck in question. Therefore, it was argued that the bail application is liable to be rejected on the ground that the Petitioner was arrested from the spot along with contraband articles. He further contended that the case of the illegal transportation of contraband Ganja is on the rise in the State of Odisha now-a-days. Therefore, no leniency should be shown to the Petitioner. He further argued that in view of the bar contained under Section 37 of the N.D.P.S. Act, the bail application of the Petitioner is liable to be rejected.

7. Having heard the learned counsels appearing 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 3 years and further the trial of the case is progressing very slow, 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's case (supra) as well as in Mohd. Muslim alias Hussain's case (supra). In Mohd Muslim @ Hussain's case (supra), the Hon'ble Supreme Court has // 4 //

specifically considered the impact of bar under Section 37 of the N.D.P.S. Act while releasing the Petitioner on regular bail. Paragraphs-20 and 21 of the said judgment, which are relevant for the purpose, are quoted herein below:-

"20. 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.

21. 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 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 // 5 //

inclined to release the Petitioner on bail.

9. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.30,000/-(Rupees thirty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter.

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. The release of the Petitioner shall also subject to such terms and conditions as would be fixed by the Court in seisin over the matter which shall be subject to the condition that in the event of violation of such conditions, the bail of the Petitioner shall be cancelled/recalled by the Court in seisin over the matter.

12. With the aforesaid observations and directions, the BLAPL is disposed of.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra) Judge

Debasis

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 15-Jul-2023 15:07:48