Allowed

Binod Kumar @ Mukesh Kumar v. State of Odisha

Orissa HC18 Oct 2023BLAPL/7189/2023

Case brief

AI extract

What is this about?

The High Court of Orissa allowed the bail application of an accused in a Narcotic Drugs and Psychotropic Substances Act case involving commercial quantity of ganja. The Court ruled that prolonged incarceration due to trial delay over three years attracts Article 21 protection, overriding Section 37's bar. Bail was granted with stringent local conditions and the threat of automatic revocation if an

What did the court decide?

Petitioner released on bail on furnishing bond of Rupees fifty thousand with two local solvent sureties each for the like amount, subject to stringent conditions.

Binod Kumar @ Mukesh Kumar Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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BLAPL No.7189 of 2023

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Binod Kumar @ Mukesh Kumar …. Petitioner

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Mr. S. C. Mohapatra, Sr. Advocate

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-versus-

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State of Odisha

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…. Opp. Party Mr. Iswar Mohanty, A.S.C.

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CORAM:

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JUSTICE A.K. MOHAPATRA

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ORDER 18.10.2023

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Order No.

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1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the Petitioner and learned counsel for the State. Perused the materials on record.

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This is an application under Section 439 of the Criminal Procedure Code.

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The petitioner is an accused in T.R. Case No.132 of 2020 arising out of Chitrakonda P.S. Case No.118 of 2020 pending in the court of learned Sessions Judge-cum-Special Judge, Malkangiri for commission of offences punishable under Sections 20(b)(ii)C of the N.D.P.S. Act.

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It is submitted by the learned Senior Counsel for the Petitioner that the Petitioner is in custody since 23.10.2020. He further submitted that in the meantime investigation has been

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concluded and charge sheet has been filed. Further, although the trial has commenced, only three witnesses have been examined out of total 17 charge sheeted witnesses. It is also contended that the trial is not likely to be concluded in near future. Learned Senior Counsel appearing for the Petitioner submitted that the Petitioner does not have any similar criminal antecedent. In view of the aforesaid submission, learned counsel for the Petitioner submitted that the case of the Petitioner is covered by the judgments of the Hon’ble Supreme Court in Mohd Muslim @ Hussain v. State (NCT of Delhi), reported in 2023 SCC OnLine SC 352; Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave Appeal No.6690 of 2022, decided on 25.01.2023)l; and in Rabi Prakash v. The State of Odisha (Special Leave to Appeal (Crl.) No(s).4169/2023, decided on 13.07.2023).

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On perusal of the above noted judgments, it appears that the Hon’ble Supreme Court has categorically expressed that where the incarceration is prolonged on the ground of delay in conclusion of the trial, the same affects fundamental right of the accused as guaranteed under Article 21 of the Constitution of India. Therefore, the bar under Section 37 of the N.D.P.S. Act would not attract in such cases.

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This Court by applying the aforesaid principle to the facts of the present case found that although the Petitioner is in custody since 23.10.2020, i.e., almost for three years the trial

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has not been progressed substantially. It appears that only three witnesses have been examined so far out of total 17 number of prosecution witnesses. Therefore, the bar under Section 37 of the N.D.P.S. Act is not be attracted to the facts of the present case although the contraband Ganja that was seized is 120 Kg., which is more than commercial quantity.

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Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that the Petitioner should not be enlarged on bail considering the seriousness and gravity of the allegation. He further contended that illegal trafficking of contraband Ganja is on rise in the State of Odisha. Therefore, no leniency should be shown to the accused persons, who are involved in such type of offences. Accordingly, it is submitted by the learned Additional Standing Counsel that the bail application of the Petitioner be rejected at this juncture.

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Having heard the learned counsels appearing for the respective parties and on a careful consideration of the surrounding facts and circumstances as well as the materials on record and keeping the judgments of the Hon’ble Supreme Court with regard to applicability of bar under Section 37 of the N.D.P.S. Act to the facts of the present case, this Court is inclined to release the Petitioner on bail with some stringent conditions.

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Hence, it is directed that the Petitioner be released on bail on furnishing a bail bond of Rs.50,000/- (rupees fifty thousand)

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with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter. While releasing the petitioner on bail, the court in seisin over the matter to impose any other conditions as would be deemed just and proper including the conditions are as follows:-

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I. The Petitioner shall not be involved in any offence of similar nature;

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II. he shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever;

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III. he shall not make any default in attending the court during trial; IV. he shall appear before the concerned Police Station once in a month preferably on ‘Sunday’ in between 10.00 A.M. to 1.00 P.M. till conclusion of trial; and

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V. he shall not leave the jurisdiction of the Court in seisin over the matter and shall furnish his address and mobile number to the police from time to time.

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Violation of any of the terms and conditions shall entail cancellation of bail.

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It is open for the court in seisin over the matter to impose any other conditions as may be deemed just and proper.

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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 has any criminal antecedent, this bail order shall automatically stand revoked.

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It is made clear that if the petitioner fails to attend the court on the date fixed on a single occasion, this order shall stand automatically revoked and the learned court below is at liberty to issue N.B.W. against the petitioner forthwith.

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The Bail Application is accordingly disposed of.

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Debasis

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Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
Judge

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Signature Not Verified

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Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 19-Oct-2023 19:57:39

Binod Kumar @ Mukesh Kumar v. State of Odisha

Case brief

What is this about?

What did the court decide?

Binod Kumar @ Mukesh Kumar v. State of Odisha

Case brief

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What did the court decide?

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