Orissa High Court
Narayan Bishnoi vs State Of Odisha on 18 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.4758 of 2023
Narayan Bishnoi .... Petitioner
Mr. M. Padhy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. P.K. Maharaj, ASC
CORAM: JUSTICE V. NARASINGH
ORDER
18.09.2023
Order No.
04. 1. Heard learned counsel for the Petitioner and learned
counsel for the State.
2. The Petitioner is an accused in T.R. Case No.22 of 2022
pending on the file of learned Sessions Judge-cum-Special Judge,
Koraput at Jeypore, arising out of Baipariguda P.S. Case No.108 of
2022 for commission of the offence under Sections 20(b)(ii)C of the
N.D.P.S Act.
3. Being aggrieved by the rejection of his application for bail
U/s. 439 Cr.P.C by the learned Sessions Judge-cum-Special Judge,
Koraput-Jeypore, by order dated 26.09.2023 in the aforementioned
case, the present BLAPL has been filed.
4. It is submitted by the learned counsel that the Petitioner is
in custody since 6.5.2023 on the accusation that he and co-accused
are involved in transportation of contraband (ganja) to the tune of
100 Kg. 700 grams being carried in a Bolero in which the Petitioner
was travelling.
5. It is further submitted that the case is lingering because of
prosecution is not able to furnish Chemical Examination Report and
the case is still at the stage of framing of charge. In this context, he
relies on the order no.32 dated 9.8.2023 passed by the learned Addl.
Sessions Judge-cum-Special Judge, Jeypore I/c, which is extracted
hereunder:
"xxx xxx xxx
32. 09.08.2023 The record is posted today awaiting for
C.E report and for framing of charge.
Accused Narayana Bishnoi is not produced from Sub-Jail,
Kotpad. Material object & Chemical Examination report
not received from the I.I.C., Boiparguda P.S. Put up on
09.08.2023 for awaiting M.O & C.E report. Now the case
stands posted to 26.09.2023 for framing of charge. No P.O
has joined since 01.06.2023.
Accused persons be produced on the date fixed.
xxx xxx xxx"
6. Learned counsel for the State submits that merely because
C.A Report has not been submitted that does not entitle the
Petitioner to be released on bail in view of Section 37(1) of the
N.D.P.S Act and also relies on the judgment of this Court in the
case of Sarukh @ Sarukh Alli Khan vrs. State of Odisha (BLAPL
No.2617 of 2023 disposed of on 08.09.2023).
7. Referring to the said judgment, learned counsel for the
Petitioner submits that this Court was not inclined to exercise the
discretion in the said case since during pendency of the case CE
Report was filed before the learned Court in seisin. Hence, ex facie
the ratio of the said case is not attracted in the present case.
8. It bears no repetition that under the N.D.P.S Act, the
provisions are rigorous so far as grant of bail is concerned. It is apt
to note here that in the case of Special Act, negation of bail is the
rule and grant of bail is an exception, as stated by the apex Court in
the case of State of M.P vrs. Kajad reported in (2001) 7 SCC 673
and even in a given case there is a presumption of guilt. But at the
same time this Court cannot be oblivious to the sacred right of the
accused for speedy trial which has been treated as a facet of Article
21 of the Constitution of India.
9. Admittedly in the case at hand, as has been noted in the
order sheet of the learned Court in seisin, extracted hereinabove, the
CE Report has not been submitted and the Petitioner is in custody
for more than a year and charge is yet to be framed.
10. Taking note of the lackadaisical manner in which the
prosecution has failed to furnish CE Report, this Court, keeping in
view the dictum of the apex Court in the case of Hussainara
Khatoon & Others Vrs. State of Bihar, reported in (1980) 1 SCC
81, directs the Petitioner to be released on bail on such terms to be
fixed by the learned Court in seisin.
11. Before releasing, learned Court in seisin is called upon to
verify the criminal antecedent of similar nature. If it comes to the
fore that the Petitioner has any such criminal antecedent, this order
shall stand recalled.
12. Photostat copy of the order sheet no.1 to 32 of the learned
Addl. Sessions Judge-cum-Special Judge, Jeypore I/c filed by the
learned counsel for the Petitioner in Court today is taken on record.
13. Accordingly, the BLAPL stands disposed of.
14. Urgent certified copy of this order be granted as per rule.
(V. NARASINGH)
Judge
PKS
Signature Not Verified
Digitally Signed
Signed by: PRADEEP KUMAR SWAIN
Designation: A.R.-cum-Sr. Secy.
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 18-Sep-2023 19:08:47
