Orissa High Court
Jogindra Kanhar vs State Of Odisha on 11 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.4384 of 2023
Jogindra Kanhar .... Petitioner
Mr.B.R.Tripathy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr.P.C.Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 11.05.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner as well as the learned
Additional Standing Counsel. Perused the Case Diary as well as the
documents placed before this Court for consideration.
3. This is an application under Section 439 of the Code of
Criminal Procedure filed by the Petitioner for bail in connection with
Boudh P.S.Case No.59 of 2019, corresponding to Special Case
(NDPS) No.30 of 2019, pending in the Court of the learned Sessions
Judge-cum-Special Judge, Boudh for alleged commission of offence
under sections 20(b)(ii) (C) of NDPS Act, 1985.
4. The present bail application is the second journey of the
Petitioner to this Court. Earlier bail application of the Petitioner
bearing BLAPL No.11395 of 2021 was disposed of vide order dated
13.07.2022 as the same was withdrawn with a direction to the court
below to expedite the trial and conclude the same within a period of
four months. Further, liberty was granted to the Petitioner to move
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fresh bail application, in the event trial is not concluded with the
aforesaid time. Accordingly, another bail application was filed which
was dismissed by the trial court. As against the dismissal order of the
trial court, the Petitioner approached this Court by filing the present
bail application.
5. It is submitted by the learned counsel for the Petitioner that the
Petitioner is in custody since 14.03.2019. He further submitted that
although Charge Sheet has been filed in the meantime, trial has
commenced. He also contended that although the Petitioner is in
custody for more than four months, trial was not commenced.
Pursuant to the order passed in the earlier bail application of the
Petitioner, trial has commenced, however out of 17 witnesses, 12
witnesses have been examined so far. Rest five witnesses are likely to
be examined in near future. At this juncture, learned counsel for the
Petitioner submits that there is no likelihood of the trial being
concluded in near future. He further submitted that the Petitioner
along with another person was arrested from a field, where the
contraband ganja was stacked for transpiration. Although several
persons were there, they fled away from the spot. With regard to the
Petitioner, it is submitted by the learned counsel for the Petitioner
that he is a daily labour and hired by some people. Learned counsel
for the Petitioner also contended that the Petitioner does not have
similar criminal antecedents. Accordingly, he urges that the
Petitioner be released on bail on such terms and conditions that may
be fixed by this Court.
6. Learned Additional Standing Counsel appearing for the State
on the other hand submitted that considering the nature and gravity of
the allegations made in the F.I.R. as well as taking into consideration
the quantity of ganja involved in the present crime i.e. 269 kg. of
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ganja, the Petitioner should not be released on bail. He further
contended that out of 17 witnesses, 12 witnesses have already been
examined in the meantime and rest five witnesses are yet to be
examined very soon. It is also contended by the learned Additional
Standing Counsel that in the event the Petitioner is released on bail
he might have absconded and he will not cooperate with the trial for
its early disposal.
7. Considering the submissions made by the learned counsel
appearing for the respective parties, upon a careful consideration of
the materials placed and on conspectus background facts of the
present case, further taking into consideration the period of detention
of the Petitioner in custody i.e. four years and the principle laid
down by the Hon'ble Supreme Court in the case 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 @ Hussain v. State (NCT of
Delhi) disposed of on 28.03.2023. the bar under Section would not
attract to the fact of the present case. In such view of the matter, this
Court is inclined to release the Petitioner on bail keeping in view the
fact that the Petitioner does not have similar criminal antecedents.
Let the Petitioner be released on bail in the aforesaid case on
furnishing a bail bond of Rs.50,000/- (Rupees Fifty thousand) with
two local solvent sureties each for the like amount to the satisfaction
of the learned court in seisin over the matter. Further, release of the
Petitioner is also subject to such terms and conditions as would be
deemed fit and proper by the learned court in seisin over the matter
8. Additionally, it is directed that while considering the bail
application of the Petitioner, learned court in seisin over the matter
shall examine the criminal antecedents of similar nature of the
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Petitioner. In the event it is found that the Petitioner has any criminal
antecedents of similar nature, this bail order shall automatically
stand revoked.
9. The BLAPL is accordingly disposed of.
10. Issue urgent certified copy of this order as per Rules.
RKS ( A.K. Mohapatra, )
RAMESH Digitally signed by
RAMESH KUMAR
Judge
KUMAR SINGH
Date: 2023.05.13
SINGH 17:33:56 +05'30'
