Orissa High Court
Sk. Gulsar @ Gulsaruddin vs State Of Odisha ..... Opposite Parties on 5 November, 2024
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6641 of 2023
Sk. Gulsar @ Gulsaruddin ..... Petitioner
Represented By Adv. -
Puspamitra Mohapatra
-versus-
State Of Odisha ..... Opposite Parties
Represented By Adv. -
Mr.S.J.Mohanty, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
Order No. 05.11.2024
11. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. On perusal of the record, it appears that a prison petition
has been received in the present bail application dated
09.10.2024. On perusal of the contents of the said Petition, the
same is on printed format. The contents of the prison petition
reveal that the earlier conducting counsel, namely Ramesh
Maharana is not conducting the case properly. Therefore, the
UTP has requested for a change of his counsel. He has also
suggested the name of Mr.Biswabhusan Das as the new
counsel. On perusal of the record, it appears that the matter
was listed on several dates before this Bench starting from
03.08.2023. Initially the matter was adjourned as relevant
information and case diary were sought for consideration of the
bail application. IO some occasions, learned State counsel has
sought for time either to obtain case diary or to obtain
instruction in the matter. During pendency of the present bail
application, an Interlocutory Application was filed seeking
release of the Petitioner on interim bail on the ground of illness
of his wife. The said Interlocutory Application was taken up on
21.05.2024 and a report was called for from the treating Doctor
of SCB Medical College & Hospital, Cuttack. Thereafter, the
matter was listed twice on 26.06.2024 and 27.06.2024. On
both the occasions the matter was adjourned on different
grounds attributable to the earlier counsel for the Petitioner. On
a consideration of the entire order sheet, as a whole, this Court
is of the view that the learned counsel appearing for the
Petitioner has taken all possible care for listing and hearing of
the matter and that the delay in consideration of the application
cannot be attributable to the learned counsel appearing earlier
for the Petitioner. At this juncture, this Court likes to observe
that this has become somewhat of a trend, where a prisoner,
to change the counsel, puts the entirety of the blame on the
counsel engaged earlier, who had earlier filed the bail
application. In most of the cases, it is found that the allegations
made against the engaged counsel earlier are baseless. This
trend has to be cured and brought to an end in the larger
interests of justice. While making the above observation, this
Court refrains himself from making any comment on the role of
the counsel in the preparation and forwarding of such prison
petition. That said, this Court would like to observe that the
same is a very unhealthy trend and does not bear well in a
noble profession like advocacy.
3. Keeping in view the above observation, this Court is not
inclined to permit the UTP to change the lawyer. Since
Mr.Maharana, who happens to be the filing advocate, who is
present in court is given an opportunity by this Court to
address this Court.
4. Heard learned counsels appearing for the Petitioner and
learned Additional Standing Counsel appearing for the State-
Opposite Party. Perused the materials placed before this
Court.
3. The abovenoted bail application under Section 439
Cr.P.C. has been filed by the Petitioners for regular bail in
connection with G.R.(Spl.)Case No.14 of 2021 arising out of
Madhupatna P.S.Case No.123 of 2021 pending in the Court
of learned Additional District & Sessions Judge, Cuttack, for
alleged commission of offences punishable under Sections
21(C) of N.D.P.S.Act.
4. It is submitted by the learned counsel for the Petitioner
that earlier this matter was not before any other Bench of this
Court. It was further submitted that the Petitioners have been
in custody since 02.06.2021. He further contended that
although the investigation has been concluded in the
meantime and the final Charge Sheet has been filed, however,
the trial is progressing at snail's pace. Learned counsels for
the Petitioners contended that out of the 33 (Thirty Three)
Charge Sheeted witnesses, only four witnesses have been
examined so far i.e., after expiry of three and half years since
the date of arrest of the Petitioners.
5. So far as the factual background of the present case is
concerned, the F.I.R. reveals that the S.I. of Police, namely
Saraswati Sahoo, lodged a written report before the I.I.C.,
Madhupatna P.S. alleging therein that on 02.06.2021 at about
2.07 P.M. upon receiving information regarding sale of
contraband articles, the Police team proceeded to the spot
and found the present Petitioners and on search they
recovered from the possession of the Petitioners 303 grams
and 405 grams of brown sugar by following the due procedure.
Thereafter the Petitioners were taken into custody and they
have been languishing in custody since 02.06.2021.
6. Learned counsels for the Petitioner at the outset
contended that although the Petitioner has been languishing in
custody since 02.06.2021 and investigation has been
concluded in the meantime and the trial has commenced,
however only four witnesses have been examined so far out of
33 Charge Sheeted witnesses. He further contended that
considering the speed with which the trial is progressing, it
appears that the trial will eventually be concluded after several
decades. It was further submitted that the Petitioners, at this
point, have been in custody for almost three and half years. In
course of his submission, learned counsels for the Petitioner
referred to the judgment of the Hon'ble Supreme Court in
Mohd. Muslim @ Hussain v. State (NCT of Delhi): 2023(1)
OLR ( SC) 959, 23023 SCC Online 352 and submitted before
this Court that a valuable right has accrued in favour of the
Petitioner to be released on bail in view of Article 21 of the
Constitution of India as has been observed by the Hon'ble
Supreme Court of India in the aforesaid judgment.
7. He would further argue that in a case where the trial is
unnecessarily delayed, mostly due to the failure on the part of
the prosecution to procure the attendance of the witnesses,
especially where the witnesses are mostly official witnesses,
the petitioner is to be enlarged on bail in view of the
constitutional guarantee under Article 21 of the Constitution of
India. Additionally, it was submitted that the constitutional
provision under Article 21 guarantees along with liberty to
every citizen a right to fair and speedy trial, and the same
definitely overrides the bar under section 37 of the NDPS Act.,
particularly in such cases where the trial is getting
unnecessarily delayed due to non-attendance of the official
witnesses. In the present case, considering the fact that
despite expiry of three and half years from the date of the
Petitioner being taken into custody only four witnesses have
been examined, and the same confirms the allegation that the
trial is progressing at a snail's pace. In the course of his
submission, reliance was also placed on the judgment of the
Hon'ble Supreme Court in the case of Dheeraj Kumar Shukla
v. The State of Uttar Pradesh (Special Leave Appeal
No.6690 of 2022 dated 25.01.2023) as well as Rabi Prakash
v. The State of Odisha (Special Leave to Appeal (Crl.)
No.(s) 4169/2023 decided on 13.07.2023).
8. Learned counsels for the Petitioners, further drawing
attention of this Court to the order passed earlier by this Court
on 11.01.2024, contended that while considering the bail
application of the Petitioner, this Court had specifically referred
to the judgments of the Hon'ble Supreme Court referred to
hereinabove. Additionally, learned trial court was directed to
conclude the trial as expeditiously as possible preferably
within a period of six months from the date of communication
of order dated 11.01.2024.
9. The record further reveals that a status report has been
submitted by the 1st Additional District & Sessions Judge vide
letter dated 03.07.2024. On perusal of the status report dated
03.07.2024, this Court observes that out of a total of 33
prosecution witnesses, so far only four witnesses have been
examined. Therefore, it stands established that only four
witnesses have been examined within a span of three and half
years' time.
10. Considering the status report of the learned 1st Additional
District & Sessions Judge, Cuttack, this Court is of the view
that the same is a glaring example of the fact as to how the
case has been handled by the prosecution. In a case under
the provision of N.D.P.S. Act most of the witnesses are official
witnesses and in the present case only four witnesses have
been examined within a span of three and half years. Such
fact reveals a lack of sincerity on the part of the prosecution to
take the trial to its logical conclusion by producing the official
witnesses for their examination in this case. This Court is also
of the view that it is high time that the State Government
considers the matter with utmost seriousness and ensures that
the appearance of official witnesses is secured before the trial
court on the basis of the summons issued by the court in these
types of cases. Moreover, in the State of Odisha, official
witnesses are being permitted to appear through virtual mode.
Therefore, a stand cannot be taken by the State that the
official witnesses are busy in some other work or are out of
station or have been transferred in the meanwhile. On an
overall consideration of the present scenario, this Court is of
the view that issue of non-appearance of the official witnesses
before the trial court in these types of cases is a serious one,
and needs to be addressed promptly. Keeping in view the fact
that the cases of illegal drug trafficking is on the rise in the
State of Odisha,
11. Coming back to the facts of the present case, it appears
that the Petitioner in BLAPL No.7445 of 2024, namely Lipu
Behera, and the Petitioner in BLAPL No 7510 of 2024, namely
Papu @ Soubhgya Ranjan Singh, were arrested on
02.06.2021 and, a total quantity of 303 grams and 405 grams
of brown sugar, respectively, has been recovered from the
possession of said petitioners. Although allegation contained
in the F.I.R. is serious in nature however the same is to be
considered keeping in view the constitutional right of the
accused persons guaranteed under Article 21 of the
Constitution of India and as has been observed by the Hon'ble
Supreme Court in the aforesaid two judgments.
12. Learned Additional Standing counsel appearing for the
State on the other hand objected to the release of the
Petitioners on bail on the ground that the Petitioners were
arrested at the spot with the allegation of possession of
contraband article which is more than the commercial quantity.
As such, the bar under section 37 of the N.D.P.S. Act would
be squarely applicable to the facts of the present case.
Furthermore, since the trial is on-going, release of the
petitioner at this stage might cause further delay in conclusion
of trial. On such grounds, learned Additional Standing Counsel
submitted that the bail application of the Petitioner be rejected
at this juncture with further direction to the trial court to
expedite the trial as expeditiously as possible.
13. On a careful analysis of the factual background of the
present case and taking note of the fact that the Petitioner has
been languishing in custody since 02.06.2021 and, only four
witnesses have been examined out of 33 Charge Sheeted
Witnesses, and by applying the principles laid down by the
Hon'ble Supreme Court in the aforesaid judgments in Mohd.
Muslim @ Hussain v. Statte (NCT of Delhi): 2023(1) OLR (
SC) 959, 23023 SCC Online 352 and Dheeraj Kumar
Shukla v. The State of Uttar Pradesh ( Special Leave
Appeal No.6690 of 2022 dated 25.01.2023) as well as Rabi
Prakash v. The State of Odisha (Special Leave to Appeal
(Crl.) No.(s) 4169/2023 decided on 13.07.2023) this Court is
inclined to release the Petitioner on bail on certain stringent
conditions.
14. Hence, it is directed that each of the Petitioner be
released on bail in the aforesaid case 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
Court in seisin over the matter. Release of the Petitioner shall
also be subject to the following conditions:
i. shall not indulge in similar nature of offence while
on bail;
ii. shall appear before the trial court on each and
every date fixed without fail;
iii. shall appear before the local P.S. once in a
fortnight, preferably on a Sunday between 10 A.M.
to 1 P.M. for a period of six months or till conclusion
of trial;
iv. shall not leave the State of Odisha without the
permission of the court in seisin over the matter.
Violation of the conditions shall entail automatic
cancellation of bail granted to the Petitioner vide the present
order.
15. 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 is having any
criminal antecedent of similar nature involving offense under
the NDPS Act, then this bail order shall automatically stand
revoked.
16. The Bail Applications are accordingly disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
RKS
Judge
Location: High Court of Orissa
