Allowed

Ashok Yadav v. State of Odisha

Orissa HC3 Nov 2021CRLMC/1277/2021

Case brief

AI extract

What is this about?

High Court set aside orders rejecting default bail application in an NDPS case, holding that the trial court erred in allowing prosecution to extend investigation time without hearing accused or serving notice, thereby violating statutory rights to bail.

What did the court decide?

Impugned orders dated 12th April, 2021 and 16th April, 2021 set aside; Petitioners directed to be released on bail by the trial court.

Ashok Yadav Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No.1277 of 2021

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Ashok Yadav and another

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…. Petitioners

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Mr. Amit Prasad Bose, Advocate

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-versus-

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….
State of Odisha Opposite Party
Mr.S.K.Mishra,
Addl. Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
03.11.2021.

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Order No.

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This matter is taken up through hybrid mode.

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In the present application filed under Section 482 of Cr.P.C., the Petitioners seek to challenge the order dated 12^th April, 2021 passed by the learned Addl. Sessions Judge-cum-Special Judge, Gunupur in T.R. Case No.20 of 2020 whereby their prayer for being released on default bail was rejected.

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Heard Mr. Amit Prasad Bose, learned counsel for the Petitioner, and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.

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The Petitioners are implicated in the above mentioned case arising out of Bissam Cuttack P.S. Case No.126/2020 for the alleged commission of offence under Sections 20(b)(ii)(C)/27A/29 of the N.D.P.S. Act.

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The prosecution story is that on 16^th October, 2020 at about 11.45 A.M. while the S.I. of Bissam Cuttack P.S. was performing patrolling duty along with his staff, he received information about illegal transportation of huge quantity of ganja in a vehicle from Ramanguda side. Accordingly, the Police personnel proceeded to the spot near Markamma Temple Chhaka where they found a Tata Sumo vehicle coming in a very high speed. The vehicle was stopped and on verification, it was found that some plastic bags containing ganja weighing 53 kgs. 620 grams were kept in the vehicle. As such, the case was registered and the accused persons were arrested and forwarded to the learned Addl. Sessions Judgecum-Special Judge on 17^th October, 2020.

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It is submitted by Mr.A.P.Bose that the date of first remand of the accused persons being 17^th October, 2020, 180 days expired on 15^th April, 2021. However, just prior to that date, the I.O. submitted an application on 08^th April, 2021 for extension of time to complete the investigation, but a copy of the such

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petition was not served upon the accused persons or their counsel. The petition was heard by learned Addl. Sessions Judge-cum-Special Judge on 12^th April, 2021 and without hearing the accused persons, the same was allowed. Subsequently, on 16^th April, 2021, the accused persons filed a petition under Section 167(2) of Cr.P.C. read with Section 36A(4) of the NDPS Act prayer to release them on bail. The Addl. Sessions Judge-cum-Special Judge, however, rejected such application on the same day by holding that the period of completion of investigation had been extended by order dated 12^th April, 2021 as the application for extension was filed prior to completion of the statutory period of 180 days.

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On the above facts, it is forcefully argued by Sri Bose that the statutory provisions have been violated and the law laid down in the case of Lambodar Bag v. State of Orissa ; (2018) 71 OCR-31 has also been violated, inasmuch as the order of extension of time to complete investigation was passed without hearing the accused persons and without intimating them of their entitlement to be released on default bail.

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Shri S.K.Mishra, learned Addl. Standing Counsel for the State, argues that as per usual practice a copy of the petition filed by Special P.P. was attached to the petition filed by him and, therefore, it cannot be said that the defense had no knowledge of filing of the said petition.

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The certified copies of the relevant orders passed by the learned Addl. Sessions Judge-cum-Special Judge have been enclosed as Annexure-1 to the CRLMC. A perusal of the same reveals that the accused persons were forwarded to the court of learned Addl. Sessions Judge-cum-Special Judge for the first time on 17^th October, 2020 and on the same day they were remanded to judicial custody. As such the period of 180 days was due to expire on 15^th April, 2021. It further appears that on 8^th April, 2021, a petition was filed by the I.O. though Special P.P. praying for extension of time for completion of investigation. Learned Addl. Sessions Judge-cum-Special Judge passed the following order:-

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“The case record is put up today on filing of a petition by the I.O. through the learned Special S.P. praying for extension of time for completion of investigation. Perused the same. Copy not served on the adversary, but copy attached. The I.O. though prayed for time for extension of time for completion of investigation, but not a single scrap of paper relating to progress of investigation including the C.D. is filed along with his prayer or any such documents available in the case record. So, the I.O. is directed to submit the up-to-date C.D. and other relevant documents by 09.4.2021.Learned counsel for the accused persons may receive the copy of petition attached with the petition. (emphasis supplied).

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The petition was considered on 12^th April, 2021 after going through the up-to-date case diary and connected papers and having regard to the fact that commercial quantity of

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contraband ganja had been seized form the possession of the accused persons, learned Addl. Sessions Judge-cum-Special Judge allowed the prayer of the I.O. by extending the period of investigation by 60 days. Significantly, the order dated 12^th April, 2021 is entirely silent as to if the copy of the petition was actually received by the accused persons or their counsel and further, nothing is forthcoming as to if the accused persons were heard before passing such order.

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It has been held time and again by the Apex Court as well as this Court that the right of the accused to be released on bail upon expiry of the stipulated period (180 days) for nonsubmission of charge sheet is indefeasible and cannot be denied under any circumstances. Further, as held in the case of Lambodar Bag v. State of Orissa (supra), if an application for extension is filed then it is the bounden duty of the court to bring the same to the notice of the accused so as to enable him to submit his objections, if any, to the petition. It has been held that though the provision under Section 36-A(4) of the Act does not specifically provide so, yet the accused person has a right to be heard when the petition for extension is taken up and his entitlement to be released on bail under the provisions of Section 167(2) of Cr.P.C. must also be brought to his notice.

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It is true that in the instant case, the application was filed before expiry of 180 days, but then the learned Addl. Sessions Judge-cum-Special Judge should have heard the accused

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persons before disposing of the same. Learned Addl. Sessions Judge-cum-Special Judge should have taken pain to consider the fact that the application was filed at the fag end of the 180 day period, which makes it all the more necessary for the court to hear the accused persons since their right under Section 167(2) of Cr.P.C. read with Section 36-A (4) of the N.D.P.S. Act is involved. It is also observed that the learned Addl. Sessions Judge-cum-Special Judge has not recorded the progress of investigation and the specific reasons for which the period of investigation was required to be extended by detaining the accused persons in custody. On the contrary, a bare reading of order dated 12^th April, 2021 suggests that learned Addl. Sessions Judge-cum-Special Judge was apparently swayed away by consideration of the quantity of contraband allegedly seized. All these facts go to suggest that the prayer made by the I.O. was simply forwarded by the Special P.P. and learned Addl. Sessions Judge-cum-Special Judge, without proper application of mind mechanically allowed the same. It goes without saying that when the matter of personal liberty of a person is involved, the court must be extra careful and cautious so as to ensure that the fundamental right of such person is not violated.

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It is further seen that immediately upon expiry of 180 days the accused persons filed a petition under Section 167(2) of Cr.P.C. read with Section 36-A(4) of the N.D.P.S. Act on 181^st day, i.e. on 16^th April 2021, seeking their release on bail. Filing

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of this petition by itself shows that they were not aware of the order passed on 12^th April, 2021 extending the period of investigation. When, for the reasons indicated herein before, the order extending the period of completion of investigation itself cannot be sustained in the eye of law, the subsequent order passed on 16^th April, 2021 rejecting the prayer of the Petitioners for bail on the ground that the prayer for extension of investigation had already been allowed, cannot also be sustained in the law.

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For the foregoing reasons, therefore, this Court is constrained to observe that the learned Addl. Sessions Judgecum-Special Judge was evidently not conscious of the legal requirement as indicated herein before and the responsibility cast by the statutory provisions, for which the impugned orders are liable to be interfered with and the invaluable right of the accused persons needs to be restored.

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In the above circumstances, the CRLMC is allowed. The impugned order dated 12^th April, 2021 passed by learned Addl. Sessions Judge-cum-Special Judge is set aside. Consequently, the order dated 16^th April, 2021 is also set aside. It is directed that the Petitioners shall be released on bail by the learned Addl. Sessions Judge-cum-Special Judge in the aforesaid case on such terms and conditions as it may deem fit and proper including the condition that they shall appear personally before the trial court on each date of posting of the case without fail.

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Urgent certified copy of this order be granted on proper application.

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(Sashikanta Mishra) Judge

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A.K.Behera

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Ashok Yadav v. State of Odisha

Case brief

What is this about?

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Ashok Yadav v. State of Odisha

Case brief

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