Orissa High Court
Unknown vs State Of Orissa on 17 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
Anup Kumar Majumdar
(In CRLA No.417 of 2023)
Mira @ Meera Biswas
(In CRLA No.289 of 2023) ... Appellants
Mr. S. Manohar, Advocate
(in CRLA No.417 of 2023)
Mr. P.K. Patro, Advocate
(in CRLA No.289 of 2023)
-versus-
State of Orissa ... Respondent
Mr. M.K. Mohanty, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING:06.03.2025
DATE OF ORDER :17.03.2025
Order No.
16. I.A. Nos. 905 & 625 of 2023
1. These two Interlocutory Applications are filed
U/S. 389(1) of CrPC by the Appellants-Petitioners Anup
Kumar Majumdar in IA No. 905 of 2023 and Mira @
Meera Biswas in IA No. 625 of 2023 for grant of bail to
them pending further execution of their sentence till
disposal of the appeals.
2. Heard, Mr. Shyam Manohar, learned counsel
for the Appellant-Anup Kumar Majumdar in CRLA No.
417 of 2023, Mr. P.K. Patro, learned counsel for the
Appellant- Mira @ Meera Biswas in CRLA No. 289 of
2023 and Mr. M.K. Mohanty, learned Additional Public
Prosecutor in the matter and perused the record.
3. Rival submissions has made it very clear that
the Appellant-Petitioners seek for bail and suspension
of their sentence mainly on the grounds of detention in
custody for three years; no Gazetted Officer was
involved in the search and seizure of Contraband
articles; violation of mandatory provisions such as 52-A
of the NDPS Act; no male officer was involved in search
of female convict; raiding officer, Complainant and IO
being one and same person and lastly, the convicts
were mere passenger of the Car. In addition, for grant
of bail to Appellants-Petitioners Anup Kumkar
Majumdar, Mr. Shyam Manohar has relied upon the
case laws in (i) Order dated 22.10.2024 passed in
Writ Petition Civil No. 406 of 2013(Re-inhuman
Conditions in 1382 Prisons vrs. ....& others), (ii)
Ashim @ Asim Kumar Haranath Bhattacharya @
Asim Harinath Bhattacharya @ Aseem Kumar
Bhattacharya vrs. National Investigation Agency;
Criminal Appeal No(s) 1525 of 2021(Arising out
of SLP(Criminal) No(s). 6858 of 2021 disposed of
on 01.12.2021, (iii) Nanhe Lal Verma vrs. State of
Madhya Pradesh; Criminal Appeal No. 4763 of
2024 (Arising out of SLP(Criminal) No. 14769 of
2024) disposed of on 25.11.2024, (iv) Vishnubhai
Ganpatbhai Patel & another vrs. State of Gujarat;
Criminal Appeal No(s) 3415 of 2023 (Arising out
of SLP(Criminal) No(s) 12853 of 2023 disposed of
on 03.11.2023,(v) Bhupatji Sartajji Jabraji Thakor
vrs. the State of Gujarat; (2024) SCC Online
3320,(vi) Narcotic Control Bureau vrs.
Lakhwinder Singh; (2025) SCC Online SC 366 and
(vii) Satender Kumar Antil vrs. Central Bureau of
Investigation & another; 2022 LiveLaw (SC) 577.
4. Admittedly, the Appellants-Petitioners have
been convicted for offences punishable under Sec.
20(b)(ii)(C) of the NDPS Act which prescribes
punishment for commission of the offence under the
said Section involving commercial quantity of
Contraband Articles, but grant or refusal of bail for
offences under NDPS Act involving commercial quantity
of Contraband Articles is further dependent on the
satisfaction of conditions enumerated in Sec.37(b)(ii) of
the NDPS Act which lays down that where the Public
Prosecutor opposes the application for bail for offences
involving commercial quantity, the Court is to be
satisfied that there are reasonable grounds for
believing that the accused is not guilty of such offence
and that he is not likely to commit any offence while on
bail. In a given situation like this, especially when the
Appellants-Petitioners have been convicted for
commission of offences under Sec. 20(b)(ii)(C) of the
NDPS Act, it is to be seen whether the rigors of Sec.37
of the NDPS Act can be diluted on the basis of decisions
relied on by the Appellants-Petitioners in the given facts
and evidence on record.
5. In coming to the decisions relied on by the
Appellants-Petitioners, it appears that the Appellants-
Petitioners has relied upon Paragraphs-2 to 4 in Re-
inhuman Conditions in 1382 Prisons(supra) which
reads as under:
"2.On 23.08.2024, when this case was last
listed. Mr. Gaurav Agrawal, learned Amicus
Curiae submitted that with effect from
01.07.2024 Section 479 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS) has
replaced the similar provision under Section
436A of the CrPC. This provides for a measure
of relief for the undertrial prisoners, who have
undergone long incarceration.
3.The Section 479 of the BNSS makes
separate provisions for those undertrials who
are first time offenders (who have not been
convicted of any offence) and those who are
outside of that category. The benefit under
the provision is inapplicable for those
charged under heinous offence for which
death or life imprisonment is specified as
one of the punishment under law.
4.For the first time offenders, the proviso to
Section 479 of the BNSS requires that such
undertrials be released on bond if he has
undergone detention for the period extending
up to one-third of maximum imprisonment
specified for such offence."
On a bare reading of the aforesaid observation
of the Apex Court, it appears that it is wholly meant for
under trial prisoners.
6. Similarly, the following paragraph in Ashim @
Asim Kumar Haranath Bhattacharya (supra) has
been relied on by the Appellants-Petitioners:
"13.Deprivation of personal liberty without
ensuring speedy trial is not consistent with
Article 21 of the Constitution of India. While
deprivation of personal liberty for some period
may not be avoidable, period of deprivation
pending trial/appeal cannot be unduly
long. At the same time, timely delivery of
justice is part of human rights and denial of
speedy justice is a threat to public confidence
in the administration of justice."
7. The Appellants-Petitioners have also relied on
the decision in Nanhe Lal Verma (supra) wherein the
Apex Court has held as under:
"We may also note here that the High
Court has not correctly read the order of this
Court in the case of Atul alias Ashutosh v.
State of Madhya Pradesh [(2024) 3 SCC 663].
In the facts of the case, the accused had
undergone half of the sentence. However, this
Court has not laid down that the case for bail
can be considered only after undergoing half
of the sentence. What is material is paragraph
4 of the said order which reads thus:
4.Before parting with order, we must
note here that notwithstanding several
decisions of this Court holding that
when there is a fixed term
sentence and especially when the
appeal is not likely to be heard
before completing entire period of
sentence, normally suspension of
sentence and bail should be granted,
we find that in several deserving
cases, bail is being denied. Such cases
should never be required to be
brought before this Court."
8. The Appellants-Petitioners have also relied on
the decision in Vishnubhai Ganpatbhai Patel(supra)
wherein the Apex Court has held as under:-
"We may note here something about
the approach of the High Court while dealing
with the application for suspension of
sentence. Before the High Court, surprisingly,
a submission was made on behalf of the State
that sentence undergone only post conviction
should be considered and therefore, a
submission was made that the appellants had
undergone only 05 months and 27 days. The
High Court has accepted the said submission
by recording that the appellants have not even
completed 01 year of sentence. Apart from the
fact that the said approach is incorrect, we
may note here that there is no hard and fast
rule which requires an accused to undergo
sentence for a particular period before his
prayer for suspension of sentence is
considered."
9. The Appellants-Petitioners have also relied on
the decision in Bhupatji Sartajji Jabraji Thakor
(supra) wherein the Apex Court has held as under:-
"7.There is a fine distinction between
a sentence imposed by the trial court for a
fixed term and sentence life imprisonment. If a
sentence is for a fixed term, ordinarily, the
appellate court may exercise its discretion to
suspend the operation of the same liberally
unless there are any exceptional
circumstances emerging from the record
to decline xxx xxx xxx."
10. The Appellants-Petitioners have also relied on
the decision in Lakhwinder Singh (supra) wherein
the Apex Court at paragraph-7 of the judgment has
held thus:-
"7. At this stage, the learned ASG
appearing for the petitioner submitted that the
power of the Court was constrained by Section
37 of the NDPS Act, which is applicable even
at the stage of an appeal. He relies upon a
decision of this Court in the case of Dadu vs.
State of Maharashtra. There is no dispute
about the fact that the Appellate Court is
bound by constraints of Section 37 of the
NDPS Act while considering the prayer for the
grant of bail during the pendency of an appeal.
However, if, in the facts of the case, an
accused has undergone a substantial part
of the substantive sentence and,
considering the pendency of criminal
appeals, his appeal is not likely to be
heard before the accused undergoes the
entire sentence, the Appellate Court can
exercise the power of releasing the accused on
bail pending the appeal. If the relief of bail is
denied in such a factual situation only on the
grounds of Section 37 of the NDPS Act, it will
amount to the violation of the rights of the
accused under Article 21 of the Constitution of
India."
11. The Appellants-Petitioners have also put much
emphasis on paragraph-7 of the decision in Satender
Kumar Antil (supra) to consider an appeal or revision
to be as a facet of trial when it comes into the
consideration of bail on suspension of sentence.
However, the Apex Court in paragraphs-42, 43 and 64
has held as under:-
"42. Section 389 of the Code concerns
itself with circumstances pending appeal
leading to the release of the appellant on bail.
The power exercisable under Section 389 is
different from that of the one either under
Section 437 or under Section 439 of the Code,
pending trial. This is for the reason that
"presumption of innocence" and "bail is the
rule and jail is the exception" may not be
available to the appellant who has
suffered a conviction. A mere pendency of
an appeal per se would not be a factor.
43. A suspension of sentence is an act
of keeping the sentence in abeyance, pending
the final adjudication. Though delay in taking
up the main appeal would certainly be a factor
and the benefit available under Section 436A
would also be considered, the Courts will have
to see the relevant factors including the
conviction rendered by the trial court. When it
is so apparent that the appeals are not
likely to be taken up and disposed of,
then the delay would certainly be a factor
in favour of the appellant.
SPECIAL ACTS (CATEGORY C)
64. Now we shall come to category
(C). We do not wish to deal with individual
enactments as each special Act has got an
objective behind it, followed by the rigor
imposed. The general principle governing
delay would apply to these categories also. To
make it clear, the provision contained in
Section 436A of the Code would apply to the
Special Acts also in the absence of any specific
provision. For example, the rigor as
provided under Section 37 of the NDPS
Act would not come in the way in such a
case as we are dealing with the liberty of
a person. We do feel that more the rigor, the
quicker the adjudication ought to be. After all,
in these types of cases number of witnesses
would be very less and there may not be any
justification for prolonging the trial. Perhaps
there is a need to comply with the directions
of this Court to expedite the process and also
a stricter compliance of Section 309 of the
Code."
12. A careful and respectable consideration of the
law laid down in the decisions referred to above makes
it very clear that that the interdict provided in Sec. 37
of NDPS Act is not an absolute bar for release of the
accused on bail for commission of offence under NDPS
Act involving commercial quantity, provided the
accused persons satisfy that there are reasonable
grounds for believing that the accused is not guilty of
the offence and he is unlikely to commit offence while
on bail, but the aforesaid conditions become more
stringent after conviction of the accused for commission
of the offence under the said provision of NDPS Act
involving commercial quantity of Contraband because in
that event, there would be a remote/faint chance to
presume that the accused is not guilty of the offence.
In the aforesaid situation, this Court considers it useful
to refer to the following paragraphs of the decision in
State (NCT of Delhi) Narcotics Control Bureau vs.
Lokesh Chadha; (2021) 5 SCC 724, wherein the
Apex Court has held thus;-
"9. Xx xx xx where the trial has ended up in
an order of conviction, the High Court, when a
suspension of sentence is sought U/S.389(1)
of CrPC, must be duly cognizant of the
fact that a finding of guilt has been
arrived at by the learned trial Judge at
the conclusion of the trial. This is not to say
that the High Court is deprived of its power to
suspend the sentence U/S. 389(1) CrPC. The
High Court may do so for sufficient
reasons which must have a bearing on
the public policy underlying the
incorporation of Section 37 of NDPS Act.
10. At this stage, we will refer to the decision
of a two-Judge Bench of this Court in Preet Pal
Singh -Vrs.- State of U.P. where Indira
Banerjee, J. speaking for the Court, observed
as follows: (SCC) p. 655, para- "35).
"35. There is a difference between
grant of bail under Section 439 Cr.P.C.
in case of pre-trial arrest and suspension
of sentence under Section 389 CrPC and
grant of bail, post conviction. In the
earlier case, there may be presumption
of innocence, which is a fundamental
postulate of criminal jurisprudence, and
the courts may be liberal, depending on
the facts and circumstances of the case,
on the principle that bail is the rule and
jail is an exception, as held by this Court
in Dataram Singh v. State of UP; (2018)
1 SCC (Cri) 675. However, in case of
post-conviction bail, by suspension
of operation of the sentence, there
is a finding of guilt and the question
of presumption of innocence does
not arise. Nor is the principle of bail
being the rule and jail an exception
attracted, once there is conviction upon
trial. Rather, the court considering an
application for suspension of sentence
and grant of bail, is to consider the
prima facie merits of the appeal, coupled
with other factors. There should be
strong compelling reasons for grant of
bail, notwithstanding an order of
conviction, by suspension of sentence,
and this strong and compelling reason
must be recorded in the order granting
bail, as mandated in Section 389(1)
CrPC."
13. Further, in Dadu Vrs. State of Maharashtra;
(2000) 8 SCC 437 wherein in a matter relating to
suspension of sentence under NDPS Act, while holding
that a sentence awarded under NDPS Act can be
suspended by the Appellate Court only and strictly
subject to the conditions spelt out in Sec. 37 of NDPS
Act, the Apex Court has further held in Paragraph-27
that:-
"holding Sec. 32-A as void in so
far as it takes away the right of the
Courts to suspend the sentence awarded
to a convict under the NDPS Act, would
neither entitle such convict to ask or
suspension of sentence as a matter of
right in all cases nor would it absolve the
Courts of their legal obligation to
exercise the power of suspension of
sentence within the parameters
prescribed U/S. 37 of the NDPS Act".
14. This Court firmly believes that in case an
appellant has undergone a substantial part of the
substantive sentence and, considering the pendency of
criminal appeals, his appeal is not likely to be heard
before the appellant undergoes the entire sentence; the
Appellate Court can exercise the power to release the
appellant on bail pending the appeal and if the relief of
bail is denied in such a factual situation only on the
ground of Sec. 37 of NDPS Act, it would amount to
violation of the rights of the appellant under Article 21
of the Constitution of India. However, applying the
principles of bail on the backdrop of Sec. 37 of NDPS
Act in the given case, it appears that the Appellants-
Petitioners are in custody for near about three and half
years as on the date, but they have been convicted for
offence punishable U/S. 20(b)(ii)(C) of the NDPS Act on
proof of transporting 72Kgs. of Contraband Ganja and
right now the appeals are ready for final hearing and on
some occasions, the Appellants have taken
adjournment in the matter. It is undoubtedly true that
the Appellants-Petitioners have taken the plea of
violation of Sec. 52-A of the NDPS Act, so also non-
involvement of Gazetted Officer in search and seizure,
no male officer being involved for search of female
convict and raiding officer, complainant and IO being
one and same and lastly, the convicts were mere
passengers, but such pleas can be adjudicated at the
time of final hearing of the matter. However, at present
after going through the evidence on record, it cannot
be said that there are reasonable grounds for believing
that the convicts-appellants are not guilty of the
offences, especially when the presumption of innocence
of the appellants no more exists, inasmuch as their
guilt has said to have been proved by the learned trial
Court and there is no reason to indicate that the
convicts are not guilty of the offence at this stage. It
cannot also be said that the appeals are unlikely to be
heard before the convicts undergo the entire sentence,
provided the Appellants cooperate for hearing of the
appeal.
15. Besides, in recent years there is considerable
rise in commission offences under Narcotic Drugs &
Psychotropic Substance Act and Drugs Menace has kept
the youth in ransom and these problems pose serious
challenge to the Nation and it is a worldwide syndrome
and, therefore, strict provisions like Sec. 37 of the
NDPS Act have been incorporated in the NDPS Act to
check the Drug Menace and illicit Drug Trafficking.
Since the object of the NDPS Act is to prevent illicit
Drugs Trafficking and its abuses, Sec. 37 of NDPS Act
should not be considered lightly. Further, Sec. 54 of the
NDPS Act provides reverse presumption that unless and
until contrary is proved, it may be presumed that the
accused has committed the offence under the Act in
respect of any Narcotic Drugs or Psychotropic
Substance or Controlled Substance for the possession
thereof which he fails to account satisfactorily.
16. In view of the aforesaid facts and circumstance
and taking into consideration the evidence on record
which primafacie discloses seizure of commercial
quantity of Contraband Ganja from the vehicle in
occupation of the convicts and taking into account the
law laid down by Apex Court in Lakhwinder
Singh(supra), Dadu(supra) and Lokesh
Chadha(supra) together with the presumption U/S.
54 of the NDPS Act, this Court is of the considered
opinion that at this stage the Appellants-Petitioners do
not satisfy the Sec. 37 of NDPS Act so as to grant them
the benefit of bail in these appeals.
17. Hence, the applications by the Appellants-
petitioners seeking for bail and suspension of sentence
are hereby rejected.
Accordingly, both the IAs stand rejected.
CRLA Nos. 417 & 289 of 2023
18. Since paper books are ready and the matter is
already ripened for hearing, list this matter on 10th
April, 2025 for final hearing and disposal of the case.
(G. Satapathy)
Judge
kishore
Signed by: KISHORE KUMAR SAHOO
Location: High Court of Orissa
Date: 17-Mar-2025 14:33:57
