Orissa High Court
Suru Kanhar vs State Of Odisha on 29 November, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.6 of 2018
Suru Kanhar .... Appellant/
Petitioner
Mr. A.K. Sahoo, Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr. Sonak Mishra
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 29.11.2023
I.A. No.156 of 2023
07. This matter is taken up through Hybrid arrangement
(video conferencing/physical mode).
Heard learned counsel for the petitioner and learned
counsel for the State.
This is an application for bail.
The appellant-petitioner has been convicted under
section 20(b)(ii)(C) of the N.D.P.S. Act and section 25 of
the Arms Act and sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine
of Rs.1,00,000/- (rupees one lakh), in default of
payment of fine, to undergo rigorous imprisonment for a
further period of one year for the offence under section
20(b)(ii)(C) of the N.D.P.S. Act and rigorous
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imprisonment for a period of three years and to pay a
fine of Rs.1,000/- (rupees one thousand), in default of
payment of fine, to undergo rigorous imprisonment for a
further period of six months for the offence under section
25 of the Arms Act and both the substantive sentences
were directed to run concurrently by the learned
Additional Sessions Judge -cum- Special Judge, Boudh
vide judgment and order dated 19.07.2017 in Special
Case (NDPS) No.40 of 2015.
Learned counsel for the petitioner submitted that
the petitioner was taken into judicial custody on
26.06.2015 and he has never been released on bail
during trial and during pendency of the appeal and as
such he has already undergone eight years and five
months of substantive sentence out of ten years imposed
by the learned trial Court. Learned counsel further
submitted that some of the co-accused persons, namely,
Sadhaba Meher and Narottam Prusty have already been
released on bail by this Court and in view of ratio laid
down by the Hon'ble Supreme Court in the case of Mohd
Muslim @ Hussain -Vrs.- State (NCT of Delhi)
reported in 2023 LiveLaw (SC) 260, the bail
application of the petitioner may be favourably
considered even though the seizure of commercial
quantity of ganja and bar under section 37 of the
N.D.P.S. Act is applicable. Learned counsel files the
copies of the bail orders in connected Jail Criminal Appeal
i.e. JCRLA No.36 of 2021.
Learned counsel for the State, on the other hand,
opposed the prayer for bail on the ground of commercial
// 3 //
quantity of ganja was seized from the petitioner and
submitted that the ratio laid down in the case of Mohd
Muslim @ Hussain (supra) is not applicable to the
petitioner in the case in hand.
In the said case Mohd Muslim @ Hussain (supra),
it is held as follows:-
<18. The conditions which courts have to be
cognizant of are that there are reasonable
grounds for believing that the accused is "not
guilty of such offence" and that he is not likely
to commit any offence while on bail. What is
meant by "not guilty" when all the evidence is
not before the court? It can only be a prima
facie determination. That places the court's
discretion within a very narrow margin. Given
the mandate of the general law on bails
(Sections 436, 437 and 439, Cr.P.C.) which
classify offences based on their gravity, and
instruct that certain serious crimes have to be
dealt with differently while considering bail
applications, the additional condition that the
court should be satisfied that the accused (who
is in law presumed to be innocent) is not guilty,
has to be interpreted reasonably. Further the
classification of offences under Special Acts
(N.D.P.S. Act, etc.), which apply over and
above the ordinary bail conditions required to
be assessed by courts, require that the court
records its satisfaction that the accused might
not be guilty of the offence and that upon
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release, they are not likely to commit any
offence. These two conditions have the effect of
overshadowing other conditions. In cases
where bail is sought, the court assesses the
material on record such as the nature of the
offence, likelihood of the accused co-operating
with the investigation, not fleeing from justice:
even in serious offences like murder,
kidnapping, rape, etc. On the other hand, the
court in these cases under such special Acts,
have to address itself principally on two facts:
likely guilt of the accused and the likelihood of
them not committing any offence upon release.
This court has generally upheld such conditions
on the ground that liberty of such citizens have
to in cases when accused of offences enacted
under special laws be balanced against the
public interest.
19. 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 face look at the material on
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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.
20. 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 Malik).
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
N.D.P.S. 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.=
Considering the submissions made by the learned
counsel for the respective parties, the sentence imposed
by the learned trial Court, the period already undergone
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by the petitioner in judicial custody, release of the co-
accused persons on bail and further taking into account
the ratio laid down by the Hon'ble Apex Court in Mohd
Muslim @ Hussain (supra), I am inclined to release the
petitioner on bail.
Let the appellant-petitioner be released on bail
pending disposal of the appeal on furnishing 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 trial Court with such terms
and conditions as the learned Court may deem just and
proper.
The I.A. is accordingly disposed of.
( S.K. Sahoo)
Judge
08. Heard.
There shall be stay of realization of fine amount
imposed by the learned trial Court on the appellant-
petitioner till disposal of the criminal appeal.
The I.A. is disposed of.
Urgent certified copy of this order be granted as per
rules.
( S.K. Sahoo)
Signed by: RABINDRA KUMAR MISHRA
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 04-Dec-2023 14:18:38
