Damodar Sahu vs State Of Odisha
2023 Latest Caselaw 12830 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLA No.602 of 2020

              Damodar Sahu                          ....       Appellant/
                                                              Petitioner

                                     Mr. R.B. Mishra, Advocate

                                        -versus-

              State of Odisha                       ....    Respondent/
                                                            Opp. Party

                                     Smt. Saswata Patnaik
                                     Addl. Government Advocate
                                   CORAM:
                              JUSTICE S.K. SAHOO
                                   ORDER

Order No.                        17.10.2023

                              I.A. No.2429 of 2023

06. 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 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 by the learned Special Judge, Khallikote vide judgment and order dated 09.11.2020 in Special G.R. Case No.01 of // 2 //

2014/Special G.R. Case No.01 of 2019.

Learned counsel for the petitioner has produced the custody certificate of the appellant Damodar Sahu granted by the Senior Superintendent, Circle Jail, Berhampur dated 11.10.2023, which indicates that the petitioner has already undergone more than seven years of substantive sentence out of ten years of sentence imposed by the learned trial Court. The custody certificate is taken on record.

Learned counsel for the petitioner submitted that during pendency of the appeal, the petitioner was directed to be released on interim bail for a period of four months as per order dated 22.11.2022 and after availing the same, he surrendered at right time. Learned counsel further submitted that 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 for the State, on the other hand, opposed the prayer for bail on the ground of commercial 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

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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 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:

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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 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

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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 by the petitioner in judicial custody and 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

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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

I.A. No.1159 of 2020

07. 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) Judge

RKM

Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Oct-2023 14:06:40