Orissa High Court
An Application Under Section 439 Of The ... vs State Of Odisha ...... Opp. Party on 19 February, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 1621 of 2024
An application under Section 439 of the Code of Criminal Procedure,
1973.
Milind Chikte ..... Petitioner
-versus-
State of Odisha ...... Opp. Party
BLAPL No. 1772 of 2024
Subham Sanjay Sinde ..... Petitioner
-versus-
State of Odisha ...... Opp. Party
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For Petitioner : Mr. K. A. Guru, Advocate
For Opp. Party : Mr. G. N. Rout, Addl. Standing
Counsel
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
19.02.2025
Savitri Ratho, J. This is the second bail application of the
petitioners under Section 439 of Cr.P.C. in this Court for grant of
bail in connection with Padwa P.S. Case No. 69 of 2023
corresponding to T.R. Case No. 65 of 2023 pending in the Court of
the learned Addl. Sessions Judge -cum- Special Judge, Koraput
under Sections 20(b)(ii)(C), 29 of NDPS Act.
2. BLAPL No. 11470 of 2023 filed by the petitioner Milind
Chikte and BLAPL No. 12079 of 2023 filed by the petitioner
Subham Sanjay Sinde had earlier been dismissed on 23.11.2023
granting liberty to the petitioners to approach the learned Court
below for bail afresh.
3. Thereafter the petitioners had moved the learned court
below for bail and their prayers for bail have been rejected on
19.01.2024 by the learned Special Judge, Koraput.
4. The prosecution case in brief is that when the S. I. of police
and his staff of Padwa P.S. got reliable information regarding
transportation of ganja in a Black XUV car bearing Registration
No. MH-20-CS-9800 towards from Doragua side to Padwa, they
proceeded to the spot. They detained the vehicle near Badabebata
Temple, Padwa on SH 52. But the driver of the vehicle escaped
from the spot and police detained the present two accused
persons and seized 151 kg of contraband ganja from their
exclusive and conscious possession.
5. Mr. K. A. Guru, learned counsel for the petitioner submitted
that the petitioners are in custody since 18.05.2023 and
preliminary charge sheet has been filed on 09.11.2023 keeping
the investigation open under Section 173(8) of the Cr.P.C. Charge
has not yet been framed in the case. He also submits that the
chemical examination report has not been submitted with the
preliminary charge sheet for which the petitioners are entitled to
be released on bail. He relies on the decision of the Supreme Court
in the case of Ritu Chhabaria vs. Union of India and Others,
reported in 2023 SCC OnLine SC 502, where the Supreme Court
held as follows;
"33. In view of the above mentioned discussions, the
issues framed by us stand answered as under:-
I. Without completing the investigation of a case, a
chargesheet or prosecution complaint cannot be filed by
an investigating agency only to deprive an arrested
accused of his right to default bail under Section 167(2) of
the CrPC.
II. Such a chargesheet, if filed by an investigating
authority without first completing the investigation,
would not extinguish the right to default bail under
Section 167(2) CrPC.
13 (2003) 3 SCC 641 14 (2007) 1 SCC 70 III. The trial
court, in such cases, cannot continue to remand an
arrested person beyond the maximum stipulated time
without offering the arrested person default bail.
CONCLUSION
34. In the instant case, it is clear from the facts that
during the pendency of the investigation, supplementary
chargesheets were filed by the Investigation Agency just
before the expiry of 60 days, with the purpose of scuttling
the right to default bail accrued in favour the accused.
This factual position was missed by the trial court, and
instead of offering default bail to the accused, the trial
court mechanically accepted the incomplete chargesheets
filed by the Investigating Agency, and further continued
the remand of the accused beyond the maximum period
specified. The Investigating Agency and the trial court,
thus, failed to observe the mandate of law, and acted in a
manner which was manifestly arbitrary and violative of
the fundamental rights guaranteed to the accused.
35. Even at the cost of repetition, we find it pertinent
to mention that the right of default bail under Section
167(2) of the CrPC is not merely a statutory right, but a
fundamental right that flows from Article 21 of the
Constitution of India. The reason for such importance
being given to a seemingly insignificant procedural
formality is to ensure that no accused person is subject to
unfettered and arbitrary power of the state. The process of
remand and custody, in their practical manifestations,
create a huge disparity of power between the
investigating authority and the accused. While there is no
doubt in our minds that arrest and remand are extremely
crucial for the smooth functioning of the investigation
authority for the purpose of attaining justice, however, it
is also extremely important to be cognizant of a power
imbalance. Therefore, it becomes essential to place certain
checks and balances upon the Investigation Agency in
order to prevent the harassment of accused persons at
their hands.
36. With the above findings and conclusions, the
interim order of bail passed in favor of the accused is
made absolute, and the present writ petition is,
accordingly, disposed of."
6. Mr. G. N. Rout, learned Additional Standing Counsel
appearing for the State opposes the prayer for bail stating that the
151 kg of ganja has been seized from the petitioners and for which
Section 37 of the NDPS Act will be a bar for releasing them on bail.
He further submits that investigation in the case had been kept
pending but the materials which had been submitted with the
preliminary charge sheet, clearly established a case under Section
20(b)(ii)(c) of the NDPS Act against the petitioners for which they
should not be released on bail nor is there any illegality in the
submission of the preliminary charge sheet. He also submits that
in Ritu Chhabaria (supra), is a case under Sections 7, 12 and
13(2), read with Section 13(1)(d) of the Prevention of Corruption
Act and that in a subsequent decision, the Supreme Court has held
that mere filing of preliminary charge sheet will not entitle the
accused to default bail under Section 167(2) proviso of the Cr.P.C.
and the matters are pending before the Supreme Court.
7. Considering the said submission of the counsel and the
aforesaid decisions, I am not inclined to grant regular bail to the
petitioners but in view of the fact that the petitioners are in custody for
about one year and nine months and keeping in mind the decision of the
Delhi High Court in the case of Athar Pervez vs State: 2016 SCC
OnLine Del 6662 and the Supreme Court in the case of Arvind
Kejriwal v. Directorate of Enforcement, (2024) 9 SCC 577 on grant
of interim bail, I am inclined to direct for release of the petitioners on
interim bail for a period of three months.
8. The petitioners Milind Chikte and Subham Sanjay Sinde shall
be released on interim bail for a period of three months by the learned
Court below in seisin over the matter in connection with the aforesaid
case, on such terms and conditions as deemed fit and proper, including
the following conditions:-
i) They shall each furnish cash surety of Rs 30,000/-.
ii) They shall not leave Koraput District, without permission of the
learned trial Court.
iii) They shall furnish their local address and permanent address to the
Court, which will be verified through the Police, before the petitioners
are released on bail.
iv) They shall furnish their active mobile numbers to the Court, which
shall be verified, before they are released on bail. They shall intimate
any change in their mobile number to their counsel immediately, so
that it can be intimated to the Court.
v) They shall remain personally present in the learned trial court on
each date it is fixed for trial.
vi) They shall appear before the Padwa Police Station on each
Sunday between 10.00 am to 11.00 a.m. unless they are permitted by
the learned trial court to leave Koraput District.
vii) They shall surrender before the learned trial court after expiry of
the period of three months, or by 07.06.2025 whichever is earlier.
9. Violation of any condition will entail in cancellation of bail /
recall of this order.
10. The BLAPL is accordingly disposed of.
11. The learned trial Court is requested to make an endeavour to
complete the trial within a period of six months, if there is no other
impediment.
12. It is open to the petitioners to move the learned trial Court for
bail afresh in case there is undue delay in completion of the trial.
13. Copy of this order shall be sent by Mr. Gyanalok Mohanty,
learned Standing Counsel for onward transmission to the IIC, Padwa
Police Station.
14. The IIC Padwa Police Station shall immediately bring to the
notice of the learned trial court, if the conditions imposed are violated.
15. No observation in this order should influence the learned trial
court during trial, as they have been made for the purpose of
consideration of the prayers for bail.
...........................
(Savitri Ratho, J.)
Orissa High Court, Cuttack.
The 19th February, 2025
Subhalaxmi, Jr. Steno
Signed by: SUBHALAXMI PRIYADARSHANI SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 28-Feb-2025 12:10:26
