The High Court, noting the petitioner's custody exceeding three years without trial commencing and citing co-accused bail releases, allowed the bail application based on the fundamental right to speedy trial.
Release of the petitioner on bail with conditions to appear on dates, not commit offences, and not tamper with evidence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.5157 of 2023
Brijesh Kumar …. Petitioner Mr.D.R.Mishra, Adv.
-versus-
…. State of Odisha Opposite Party Mr.G.R.Mohapatra,ASC
CORAM:
DR.JUSTICE S.K. PANIGRAHI
Order ORDER
No. 13.07.2023
Dated Police Case No. Sections
F.I.R.
Station and Courts’
No.
Name
61 17.03.2021 Binika Special G.R. Section 20(b)(ii)(C) of the
Case No.07 N.D.P.S. Act.
of 2020
arising out
of Binika
P.S. Case
No.61 of
2020
pending in
the Court of
learned
Addl.
Sessions
Judge-cum-
Special
Judge,
Sonepur
Signature No t Verified
Page 1 of 6
Digitally Signed Signed by: LINGARAJ BEHERA Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Jul-2023 18:54:56
// 2 //
3 . The petitioner being in custody in connection with Binika P.S. Case No. 61 of 2020 corresponding to Special G.R. Case No. 7 of 2020 pending in the court of learned Special Judge, Sonepur registered for the alleged commission of offence under Sections Section 20(b)(ii)(C) of the NDPS Act has filed this petition for his release on bail.
Signature Not Verified
Page 2 of 6
Digitally Signed Signed by: LINGARAJ BEHERA Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Jul-2023 18:54:56
// 3 //
5 . Learned counsel for the petitioner submits that the petitioner has been implicated in this case based on the statement of the co-accused. Nothing has been seized from his conscious possession. He is the sole earning member of his family. In the event of his release on bail, he shall abide by any terms and conditions as fixed by the Court..
6. Learned counsel for the petitioner further submits that the present petitioner has already spent in custody since 18.03.2020 which is more than three years. The trial of the case has not been commenced. Further, there is less likelihood of completion of trial in the near future. Additionally, two co-accused who are similarly situated with the petitioner have already been released on bail by orders of this Court on 11.11.2021 and 10.02.2022 in BLAPL Nos. 6851 of 2021 and 6884 of 2021 respectively.
7 . Learned counsel for the State vehemently opposes the bail prayer of the petitioner.
8. Learned counsel for the petitioner submits that the Hon'ble Supreme Court have held that right to have speedy trial is a fundamental right of a citizen. Hence, keeping a person in custody for such a long time without any trial is not justified and violative of his fundamental right. The importance of speedy trial has been emphasized
Signature Not Verified
Page 3 of 6
Digitally Signed Signed by: LINGARAJ BEHERA Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Jul-2023 18:54:56
// 4 //
in the case of Hussainara Khatoon & Ors. vs Home Secretary, State of Bihar, wherein the Hon'ble Supreme Court has iterated that:
"Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just" procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial."
9. He further argues that the period of long incarceration suffered, which entitle the Petitioner for grant of bail. Right to Speedy trial is a fundamental right of an under trial prisoner and this observations have been resonated, time and again, in several judgments including that of Kadra Pahadiya & Ors. v. State of Bihar1 wherein it has been stated that the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in a country like ours, where the large majority of the accused come from poorer and weaker sections of the society and are not
1 1981)3 SCC 671 Signature Not Verified
Page 4 of 6
Digitally Signed Signed by: LINGARAJ BEHERA Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Jul-2023 18:54:56
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versed with laws and after face the dearth of competent legal advice, the application of the said NDPS Rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But an accused cannot be disentitled from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial.
10 . The Supreme Court has also held in Mohd. Muslim @ Hussain v. State (NCT of Delhi)2 that incarceration has further deleterious effects where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.
11 . Considering the submissions made and the factum of release of the co-accused person, this Court is inclined to release the Petitioner on bail. Accordingly, it is directed
2 SLP (Crl.) No. 915 of 2023 Signature Not Verified
Page 5 of 6
Digitally Signed Signed by: LINGARAJ BEHERA Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Jul-2023 18:54:56
// 6 //
that the court in seisin over the matter shall release the Petitioner on bail in the aforesaid case on stringent terms and conditions with further conditions that:
iii . he shall not tamper with the evidence of the prosecution witnesses in any manner.
Violation of any of the conditions shall entail cancellation of the bail.
12. The BLAPL is, accordingly, disposed of.
(Dr. S.K. Panigrahi)
Judge
LB
Signature Not Verified
Page 6 of 6
Digitally Signed Signed by: LINGARAJ BEHERA Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Jul-2023 18:54:56
2 issues framed by the court
Whether an accused in custody for over three years without trial under the NDPS Act is entitled to bail.
Whether the delay in commencement of the trial violates the fundamental right to a speedy trial under Article 21.
Colour shows how this judgement treated each authority
Hussainara Khatoon & Ors. vs Home Secretary, State of BiharRelied on¶28
Hussainara Khatoon & Ors. vs Home Secretary, State of Bihar
Kadra Pahadiya & Ors. v. State of BiharRelied on¶30
Kadra Pahadiya & Ors. v. State of Bihar
Mohd. Muslim @ Hussain v. State (NCT of Delhi)Relied on¶36
Mohd. Muslim @ Hussain v. State (NCT of Delhi)
2 provisions across 2 enactments
Brijesh Kumar
State of Odisha
S.K. Panigrahi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
