Orissa High Court
Sandeep Kumar vs State Of Odisha on 18 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.1075 of 2023
Sandeep Kumar .... Petitioner
Mr. N.N. Mohapatra, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. P.C. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
18.10.2023
Order No.
03. 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 F.I.R., case diary and other
relevant documents as well as statement of the witnesses.
3. This is an application under Section 439 of the Criminal
Procedure Code.
4. The petitioner is an accused in G.R. Case No.95 of 2021
arising out of Adava P.S. Case No.93 of 2021 pending in the
court of learned Additional Sessions Judge-cum-Special Judge,
Gajapati at Paralakhemundi for commission of offences
punishable under Sections 20(b)(ii)C/25 /29 of the N.D.P.S. Act.
5. The prosecution case, in a nutshell, is that on 02.09.2021
at around 9.31 A.M., while the officials of Adava Police Station
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were conducting their patrolling duty, they got credible
information from reliable sources that the contraband Ganja is
being loaded at near Village Balibandha Chhak in a Truck by
the drug peddlers. After getting such information from that
reliable source the raiding staffs proceeded to the spot to verify
the veracity of the information. It is respectfully submitted that
after reaching at the spot at about 11.00 A.M., they saw that one
white colour Truck is in starting position and about to proceed
and one Motor cycle was there. Seeing the truck, the raiding
party suddenly arrived there and rebelled the vehicle. On
verification of the Truck bearing Registration Number-HR-56-
B-9002 and one H.G. Deluxe Motor Cycle bearing Registration
Number-OD-20-B-2486 and they found four persons in the
driver chamber and one person on the dala of the truck. On
being asked by the police, they disclosed their names. However,
the informant and his staffs were not able to apprehend the
accused persons from the spot. Upon the search of the vehicle,
they found huge quantity of ganja. During the search the police
officials found 315 Kgs. 100 grams of contraband ganja and
after observing all the formalities of NDPS Act and seized the
contraband articles and drew the F.I.R.
6. It is submitted by learned counsel for the petitioner that
the petitioner is in custody since 02.09.2021 on being arrested at
the spot by the raiding party. He further submitted that the
petitioner is in no way involved and he has been falsely
implicated in the present case. He has also contended that the
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petitioner does not have any criminal antecedents and he is in
custody for almost two years and that the trial has not yet
commenced. It is also contended that out of sixteen witnesses,
none of them have been examined so far. Therefore, there is no
possibility of the trial being concluded in near future.
7. Referring to the judgment of the Hon'ble Supreme Court
in Mohd Muslim @ Hussain v. State (NCT of Delhi), reported
in 2023 SCC OnLine SC 352 and in Rabi Prakash v. The State
of Odisha (Special Leave to Appeal (Crl.) No(s).4169/2023,
decided on 13.07.2023), learned counsel for the Petitioner
submitted that the Apex Court has held that if there is
unnecessary delay in trial which affects the rights of the
accused-Petitioner as guaranteed under the Constitution of
India, then the bar under Section 37 of the N.D.P.S. Act is not
attracted. Further, referring to the facts of the present case,
learned counsel for the petitioner submitted that although the
petitioner is in custody for more than two years and the
witnesses have not been examined as of now. Therefore, the
case of the petitioner also falls under the similar parameter as
has been laid down in the aforesaid judgment. In addition to the
development, learned counsel for the petitioner submitted that
the petitioner belongs to the locality and there is no scope of
absconding or fleeing away from the hands of justice and that
the bail application of the petitioner may be considered.
8. Leaned Additional Standing Counsel for the State
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vehemently opposes the prayer for bail of the Petitioner and
submits that the quantity involved in the present case is more
than the commercial quantity, which has been illegally
transported. He further submits that a number of such cases are
increasing day-by-day and no leniency should be shown to the
Petitioner or similarly situated persons. There is possibility that
the petitioner might indulge in similar nature of offence while
on bail and the bail application of the petitioner should be
rejected at this juncture.
9. Having heard the learned counsels for the respective
parties, upon conspectus of surrounding facts and circumstances
of the present case, keeping in view the law laid down by the
Hon'ble Supreme Court in Mohd Muslim @ Hussain's case
(supra) and in Rabi Prakash's case (supra), and considering the
period of custodial detention of the petitioner, it is directed that
the petitioner be released on bail on furnishing a bail bond of
Rs.50,000/- (rupees fifty thousand) with two local solvent
sureties each for the like amount and an additional bailer who
shall be a family member of the Petitioner, 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;
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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.
10. It is open for the court in seisin over the matter to impose
any other conditions as may be deemed just and proper.
11. 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.
12. It is made clear that if the petitioner fails to attend the
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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.
13. 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
