Pradhani Jani vs State Of Orissa
2023 Latest Caselaw 6816 Ori

                                             IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                              BLAPL No.11629 of 2022

                                     (In the matter of an application under Section 439 of the Code of
                                     Criminal Procedure)

                                      Pradhani Jani                           ....                    Petitioner


                                                                            Versus


                                      State of Orissa                         ....              Opposite Party



                                     Advocate(s) appeared in this case:-

                                           For Petitioner           :   Mr. S.G. Das, Advocate

                                           For Opposite Party       :   Mr. K. Gaya, A.S.C.


                                                   CORAM: JUSTICE B.P. ROUTRAY

                                                                   JUDGMENT

1st June, 2023

B.P. Routray, J.

1. Present Petitioner is in custody for alleged commission of

offences under Sections 20(b)(ii)C, 25, 27A and 29 of the Narcotic

Drugs and Psychotropic Substances Act in connection with K.

Nuagaon P.S. Case No.53 dated 15th September, 2020 corresponding to

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 C.T. Case No. 48/2020 pending before the learned Special Judge - cum

- Addl. Sessions Judge, Baliguda for possession and transportation of

contraband Ganja weighing 113Kg. 540grams in an Ashok Leyland

Pick-up vehicle escorted by one Bajaj Pulsar Motorcycle and one Tata

Indica Car. The Charge-sheet dated 10th March 2021 has been

submitted in the meantime indicting offences under Sections

20(b)(ii)C, 25 and 29 of the Narcotic Drugs and Psychotropic

Substances Act. Seven accused persons including present Petitioner

were arrested.

2. All the accused persons moved for bail under Section 439

Cr.P.C before this Court in different bail applications at different points

of time. The bail applications were dealt by different Benches of this

Court. Co-accused persons namely, Simanchal Gouda, Banabas Jena,

Situnu Swain and Gopabandhu Digal have been released on bail by

order dated 16th August 2021, 9th August 2021, 27th April 2022 and 4th

May 2022 in BLAPL No. 7306/2020, 8040/2020, 8220/2020 and

8511/2020 respectively. In respect of co-accused Santosh Gouda, his

prayer for bail was rejected initially on 11th January 2022 in BLAPL

No. 8291/2020, but subsequently he is released on bail in BLAPL

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 No.3935/2022 by order dated 4th August 2022. The prayer for bail by

the present Petitioner (Pradhani Jani) and another co-accused namely,

Ranjan Jani@Tuna Jani was dealt by this Bench earlier. The prayer for

bail of Ranjan Jani@Tuna Jani, the co-accused, was rejected by this

Bench on 14th July 2021 in BLAPL No. 7144/2020, on 27th August

2021 in BLAPL No. 6351/2021 and on 13th July 2022 in BLAPL No.

9826/2021, though he was granted interim bail for a period of three

months for delay in completion of trial.

The prayer for bail of the Petitioner was earlier rejected on 14th

July 2021 in BLAPL No. 7149/2020, on 19th May 2022 in BLAPL No.

6352/2021 (though he was granted interim bail for a period of three

months for delay in completion of trial), and on 9th November 2022 in

BLAPL No.8474 of 2022.

While considering the prayer for bail of the Petitioner in BLAPL

No.8474 of 2022, a submission was made claiming parity as some of

the co-accused persons have been released on bail. This Court,

considering the effects of orders passed in BLAPL No.7306 of 2020,

8220 of 2020, 8040 of 2020 and 8511 of 2020 in favour of co-accused

persons, rejected such contention of the petitioner by order dated 9th

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 November 2022 stating that none of the bail orders of co-accused

persons deal with the provisions contained in Section 37 of the

N.D.P.S. Act and as such, those orders cannot be considered as the

ground of parity in respect of the present Petitioner. The Petitioner did

not choose to challenge said order dated 9th November 2022.

3. Subsequently, the Petitioner filed the present bail application on

22nd November 2022 and this Court by order dated 31st March 2023

rejected his prayer for bail keeping in view the embargo contained in

Section 37(1)(b) of the N.D.P.S. Act.

4. Against the rejection of his prayer for bail passed in order dated

31st January 2023, the Petitioner approached Hon'ble Supreme Court in

Criminal Appeal No.1503/2023 (arising out of SLP (Crl)

No.3241/2023). The Supreme Court by order dated 15th May 2023

remanded the matter back to this Court with directions to pass fresh

order. The relevant portion of the order of Supreme Court is

reproduced below:

"3. The perusal of the paper books would reveal that various applications filed by various accused have been entertained by different learned Single Judges of the same High Court. In many of the High Courts, the practice followed is that the applications arising out of the same FIR should be placed before one Judge. However, it appears that it is not the practice in Orissa High Court. In the present case, we have

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 come across orders passed by at least three different Judges in the applications of various accused arising out of same FIR.

4. Such a practice leads to anomalous situation. Certain accused are granted bail whereas certain accused for the very same crime having similar role are refused bail.

5. We, therefore, quash and set aside the impugned order dated 31.01.2023 and remand the matter back to the High Court. The High Court is requested to consider the effect of the orders passed by the other coordinate Benches and pass orders afresh. The same shall be done within a period of one month from today.

6. The Registrar (Judicial) of the Registry of this Court is directed to forward a copy of this order to the Registrar General of the Orissa High Court, who is requested to take note of the aforesaid and consider passing appropriate orders so that contrary orders in the same crime are avoided."

5. It is true that none of the orders, passed in BLAPL No.7306 of

2020, 8220 of 2020, 8040 of 2020, 8511 of 2020 and BLAPL No.3935

of 2022 granting bail to the co-accused persons are dealing with the

provisions contained in Section 37(1) of the N.D.P.S. Act. The Hon'ble

Supreme Court in Union of India v. Md. Nawaj Khan, (2021) 10 SCC

100, while dealing with the prayer of cancellation of bail of the

Respondent who was accused of the offences under the N.D.P.S Act

for allegedly possessing / transporting 3 kg. 300 gram Morphine, have

stated that the test which the High Court is required to apply while

granting bail is whether there are reasonable grounds to believe that the

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 accused has not committed an offence and whether he is likely to

commit any offence while on bail (see para 23).

In Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC

624, the Supreme Court have observed that the impugned bail order is

unsustainable having been passed ignoring mandatory requirements of

Section 37 of the N.D.P.S. Act. The relevant observations are

reproduced below:-

"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".

13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798). Thus, recording of

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

xx xx xx xx xx xx xxxxx

17. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained. Accordingly, the appeal is allowed and the matter is remitted back to the High Court for fresh consideration of the application filed by the respondent for suspension of sentence and for granting of bail, keeping in view the parameters of Section 37 of the NDPS Act, enumerated above. xxxx"

6. Further though in order dated 4th August 2022, passed in BLAPL

No.3935 of 2022 in respect of accused Santosh Gouda, it was

submitted that trial has not yet commenced, but the fact remains that

P.W.1 and 2 were examined on 11th July 2022, and P.W. 3, 4 and 5

were examined on 29th July 2022. Therefore, the orders passed in

respect of other co-accused persons releasing them on bail involving

offences relating to commercial quantity and punishable under Section

20(b)(ii)C of the N.D.P.S. Act cannot be taken in favour of the

Petitioner on the ground of parity.

7. It is submitted on behalf of the Petitioner that he is inside

custody since 15th September 2020 and in the meantime only six

witnesses have been examined in course of trial. The copies of

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 depositions of such witnesses have been produced for perusal of this

Court. It is seen that P.W.1, 2 and 6, independent witnesses of seizure,

did not support prosecution case and have turned hostile.

8. Mr. Gaya, learned ASC submits upon instructions that the

Petitioner is not involved in any other case except the present one. In

other words the Petitioner has no criminal antecedent. The Supreme

Court in a recent case in SLP (Crl.) No.6690 of 2022 (Dheeraj Kumar

Shukla v. The State of Uttar Pradesh), involving seizure of 92 Kgs

and 65 Kgs of Ganja from two vehicles and the accused was in custody

since 24th June 2020, have held that in absence of criminal antecedents

and the fact that the Petitioner was in custody for 2½ years, the

conditions of Section 37 of the NDPS Act can be dispensed with. The

relevant observations are reproduced below:-

"3. It appears that some of the occupants of the 'Honda City' car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52

4. For the reasons stated above but without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds of the satisfaction of the Trial Court."

9. In the instant case, this court by order dated 9th November, 2022

passed in BLAPL No.8474 of 2022 had directed to complete the trial

expeditiously, preferably by end of April 2023. As submitted on behalf

of the Petitioner, the trial is still pending at the stage of examination of

further prosecution witnesses. Considering the statements of the

witnesses so far examined i.e. P.W.1 to 6, as per the copies produced,

the period of custody of the Petitioner and delay in completion of trial,

and the direction of the Supreme Court dated 15th May, 2023 passed in

Criminal Appeal No.1503/2023 (arising out of SLP (Crl.)

No.3241/2023) and the observations made in the case of Dheeraj

Kumar Shukla (supra), I am inclined to release the Petitioner on bail

with satisfaction that the rigour of Section 37 of the NDPS Act can be

dispensed with at this stage, particularly when the trial is not completed

within the time stipulated by this court earlier.

10. Accordingly, it is directed to release the Petitioner on bail in

connection with K.Nuagaon P.S. Case No.53 dated 15th September,

2020 corresponding to C.T. Case No. 48/2020 on such terms and

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52 conditions to be fixed by the learned trial court including the condition

that the Petitioner shall not be involved in any other offence while on

bail and shall attend the trial court on each date fixed.

11. The BLAPL is disposed of.

(B.P. Routray) Judge

C.R.Biswal, Secy.

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: authentication Location: High Court of Orissa, Cuttack Date: 01-Jun-2023 21:21:52