Orissa High Court
Samir Majhi vs State Of Odisha on 14 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.7068 of 2022
Samir Majhi .... Petitioner
Ms. S.K.Nayak, Adv. along
with Mr.Devashis Panda, Advocate
& Ms.Ayushi Meheta, Adv.
-versus-
State of Odisha .... Opposite Party
Mr.G.R.Mohapatra,ASC
CORAM:
DR.JUSTICE S.K. PANIGRAHI
Order ORDER
No. 14.07.2023
Dated Police Case No. Sections
F.I.R.
Station and Courts'
No.
Name
38 031.05.2020 Gudari T.R. case Section 20(b)(ii)(C) of the
No.06 of N.D.P.S. Act.
2020 arising
out of
Gudari P.S.
of 2020
pending in
the court of
learned
Special
Judge-cum
Addl.
Sessions
Judge,
Gunupur
02. 1. This matter is taken up through hybrid arrangement.
Digitally Signed
Signed by: LINGARAJ BEHERA
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 17-Jul-2023 18:02:34
// 2 //
2. Heard learned counsel for the petitioner and learned counsel
for the State.
3. The petitioner being in custody in connection with Gudari
P.S.Case No.38 of 2020 corresponding to T.R.Case No.6 of 2020
pending in the court of learned Additional Sessions Judge-
cum-Special Judge, Gunupur, registered for the alleged
commission of offence under Sections 20(b)(ii)(C) of the
N.D.P.S. Act, has filed this application under Section 439 of
Cr.P.C. for his release on bail.
4. It is alleged in the FIR that on 31.05.2020 at about 9.30 A.M.
the S.I. of Police Gudari P.S. and staff were performing day
patrolling in village Kadadma and its adjoining area. On that
day at about 4.35 P.M. acting upon tip off, they conducted raid
on the spot i.e. in the jungle near Khairaguda and found the
petitioner along with others were engaged in packing and
storing contraband 'ganja' in a cashew nut field. On seeing the
police personnel, the persons engaged in packing the
contraband 'ganja' fled away from the spot. The raiding team
nabbed one of them, who is the present petitioner. On search
they recovered twelve white colour jarry bags and one green
colour jarri bag containing 'Ganja' weighing about 1164 Kg.
929 grams in toto along with motor cycles from the spot.
5. Learned counsel for the petitioner submits that the present
petitioner has already spent in custody since 31.05.2020 which
is more than three years and trial has not yet been commenced.
Further, there is less likelihood of completion of trial in the
Digitally Signed
Signed by: LINGARAJ BEHERA
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 17-Jul-2023 18:02:34
// 3 //
near future. Additionally, some of the co-accused who are
similarly situated with the petitioner have already been
released on bail by order of this Court on 08.04.2021 in BLAPL
No. 6982 of 2020, on 29.04.2022 in BLAPL No. 7032 of 2021, on
09.06.2021 in BLAPL No. 8284 of 2020 and on 09.06.2021 in
BLAPL No. 9455 of 2020.
6. Learned counsel for the State vehemently opposes the bail
prayer of the petitioner.
7. Hon'ble Supreme Court have held that right to have speedy
trial is a fundamental right of a citizen. Hence, keeping a
person in custody for such a long time without any trial is not
justified and violative of his fundamental right. The importance
of speedy trial has been emphasized in the case of Hussainara
Khatoon & Ors. vs Home Secretary, State of Bihar, wherein
the Hon'ble Supreme Court has iterated that:
"Speedy trial is, as held by us in our earlier judgment
dated 26th February, 1979, an essential ingredient of
'reasonable, fair and just" procedure guaranteed by
Article 21 and it is the constitutional obligation of the
State to device such a procedure as would ensure speedy
trial to the accused. The State cannot be permitted to
deny the constitutional right of speedy trial to the
accused on the ground that the State has no adequate
financial resources to incur the necessary expenditure
needed for improving the administrative and judicial
apparatus with a view to ensuring speedy trial."
8. He further argues that the period of long incarceration
suffered, which entitle the Petitioner for grant of bail. Right to
Speedy trial is a fundamental right of an under trial prisoner
and this observations have been resonated, time and again, in
Digitally Signed
Signed by: LINGARAJ BEHERA
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 17-Jul-2023 18:02:34
// 4 //
several judgments including that of Kadra Pahadiya & Ors. v.
State of Bihar1 wherein it has been stated that the obligation of
the State or the complainant, as the case may be, to proceed
with the case with reasonable promptitude. Particularly, in a
country like ours, where the large majority of the accused come
from poorer and weaker sections of the society and are not
versed with laws and after face the dearth of competent legal
advice, the application of the said NDPS Rule is wholly
inadvisable. Of course, in a given case, if an accused demands
speedy trial and yet he is not given one, may be a relevant
factor in his favour. But an accused cannot be disentitled from
complaining of infringement of his right to speedy trial on the
ground that he did not ask for or insist upon a speedy trial.
9. The Supreme Court has also held in Mohd. Muslim @
Hussain v. State (NCT of Delhi)2 that incarceration has further
deleterious effects where the accused belongs to the weakest
economic strata: immediate loss of livelihood, and in several
cases, scattering of families as well as loss of family bonds and
alienation from society. The courts therefore, have to be
sensitive to these aspects (because in the event of an acquittal,
the loss to the accused is irreparable), and ensure that trials -
especially in cases, where special laws enact stringent
provisions, are taken up and concluded speedily.
10. Considering the submissions made, the factum of release of
the co-accused persons and detention of the petitioner without
1981)3 SCC 671
SLP (Crl.) No. 915 of 2023
Digitally Signed
Signed by: LINGARAJ BEHERA
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 17-Jul-2023 18:02:34
// 5 //
being trial, this Court is inclined to release the Petitioner on
bail. Accordingly, it is directed that the court in seisin over the
matter shall release the Petitioner on bail in the aforesaid case
on stringent terms and conditions with further conditions that:
i. the Petitioner shall appear before the learned
trial court on each date of posting of the case,
ii he shall not indulge in any criminal offence
while on bail and
iii. he shall not tamper with the evidence of
the prosecution witnesses in any
manner.
Violation of any of the conditions shall entail cancellation of the
bail.
11. The BLAPL is, accordingly, disposed of.
(Dr. S.K. Panigrahi)
Judge
LB
Digitally Signed
Signed by: LINGARAJ BEHERA
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 17-Jul-2023 18:02:34
