Orissa High Court
Binod Kumar @ Mukesh Kumar vs State Of Odisha on 18 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.7189 of 2023
Binod Kumar @ Mukesh Kumar .... Petitioner
Mr. S. C. Mohapatra, Sr. Advocate
-versus-
State of Odisha .... Opp. Party
Mr. Iswar Mohanty, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
18.10.2023
Order No.
04. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard learned counsel for the Petitioner and learned
counsel for the State. Perused the materials on record.
3. This is an application under Section 439 of the Criminal
Procedure Code.
4. The petitioner is an accused in T.R. Case No.132 of 2020
arising out of Chitrakonda P.S. Case No.118 of 2020 pending in
the court of learned Sessions Judge-cum-Special Judge,
Malkangiri for commission of offences punishable under
Sections 20(b)(ii)C of the N.D.P.S. Act.
5. It is submitted by the learned Senior Counsel for the
Petitioner that the Petitioner is in custody since 23.10.2020. He
further submitted that in the meantime investigation has been
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concluded and charge sheet has been filed. Further, although the
trial has commenced, only three witnesses have been examined
out of total 17 charge sheeted witnesses. It is also contended that
the trial is not likely to be concluded in near future. Learned
Senior Counsel appearing for the Petitioner submitted that the
Petitioner does not have any similar criminal antecedent. In
view of the aforesaid submission, learned counsel for the
Petitioner submitted that the case of the Petitioner is covered by
the judgments of the Hon'ble Supreme Court in Mohd Muslim
@ Hussain v. State (NCT of Delhi), reported in 2023 SCC
OnLine SC 352; Dheeraj Kumar Shukla v. The State of Uttar
Pradesh (Special Leave Appeal No.6690 of 2022, decided on
25.01.2023)l; and in Rabi Prakash v. The State of Odisha
(Special Leave to Appeal (Crl.) No(s).4169/2023, decided on
13.07.2023).
6. On perusal of the above noted judgments, it appears that
the Hon'ble Supreme Court has categorically expressed that
where the incarceration is prolonged on the ground of delay in
conclusion of the trial, the same affects fundamental right of the
accused as guaranteed under Article 21 of the Constitution of
India. Therefore, the bar under Section 37 of the N.D.P.S. Act
would not attract in such cases.
7. This Court by applying the aforesaid principle to the facts
of the present case found that although the Petitioner is in
custody since 23.10.2020, i.e., almost for three years the trial
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has not been progressed substantially. It appears that only three
witnesses have been examined so far out of total 17 number of
prosecution witnesses. Therefore, the bar under Section 37 of
the N.D.P.S. Act is not be attracted to the facts of the present
case although the contraband Ganja that was seized is 120 Kg.,
which is more than commercial quantity.
8. Learned Additional Standing Counsel appearing for the
State-Opposite Parties, on the other hand, contended that the
Petitioner should not be enlarged on bail considering the
seriousness and gravity of the allegation. He further contended
that illegal trafficking of contraband Ganja is on rise in the State
of Odisha. Therefore, no leniency should be shown to the accused
persons, who are involved in such type of offences. Accordingly, it
is submitted by the learned Additional Standing Counsel that the
bail application of the Petitioner be rejected at this juncture.
9. Having heard the learned counsels appearing for the
respective parties and on a careful consideration of the
surrounding facts and circumstances as well as the materials on
record and keeping the judgments of the Hon'ble Supreme
Court with regard to applicability of bar under Section 37 of the
N.D.P.S. Act to the facts of the present case, this Court is
inclined to release the Petitioner on bail with some stringent
conditions.
10. Hence, it is directed that the Petitioner be released on bail
on furnishing a bail bond of Rs.50,000/- (rupees fifty thousand)
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with two local solvent sureties each for the like amount to the
satisfaction of the learned Court in seisin over the matter. While
releasing the petitioner on bail, the court in seisin over the
matter to impose any other conditions as would be deemed just
and proper including the conditions are as follows:-
I. The Petitioner shall not be involved in
any offence of similar nature;
II. he shall not tamper with the prosecution
evidence or try to threaten or influence the
witnesses in any manner whatsoever;
III. he shall not make any default in
attending the court during trial;
IV. he shall appear before the concerned
Police Station once in a month preferably on
'Sunday' in between 10.00 A.M. to 1.00 P.M.
till conclusion of trial; and
V. he shall not leave the jurisdiction of the
Court in seisin over the matter and shall
furnish his address and mobile number to the
police from time to time.
Violation of any of the terms and
conditions shall entail cancellation of bail.
11. It is open for the court in seisin over the matter to impose
any other conditions as may be deemed just and proper.
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12. It is further directed that the bail granted to the Petitioner
is subject to the condition that learned court below shall verify
whether the Petitioner has any criminal antecedent of similar
nature. In the event it is found that the Petitioner has any
criminal antecedent, this bail order shall automatically stand
revoked.
13. It is made clear that if the petitioner fails to attend the
court on the date fixed on a single occasion, this order shall
stand automatically revoked and the learned court below is at
liberty to issue N.B.W. against the petitioner forthwith.
14. The Bail Application is accordingly disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
Judge
Debasis
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Designation: Secretary
Reason: Authentication
Location: OHC CUTTACK
Date: 19-Oct-2023 19:57:39
