Dismissed

Bijendra Singh v. State of Odisha

Orissa HC19 Oct 2023BLAPL/7801/2023

Case brief

AI extract

What is this about?

A bail application by an accused charged under the NDPS Act was rejected. The petitioner withdrew a prior application before the same judge but re-filed here. The court found the withdrawal bars reconsideration without change in circumstances. Regarding merits, despite alleged procedural lapses, the petitioner's criminal antecedents and status as a flight risk prevented meeting the statutory thres

What did the court decide?

Bail application rejected; petitioner in custody.

Bijendra Singh 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.7801 of 2023

Bijendra Singh

…. Petitioner

-versus-

State of Odisha

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…. Opposite Party

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For Petitioner : Mr. S. Manohar, Advocate For Opposite Party : Mr. A. Pradhan, ASC

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CORAM: JUSTICE V. NARASINGH

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V. Narasingh, J.

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Date of hearing :17.10.2023 Date of judgment:19.10.2023

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Heard learned counsel for the Petitioner Mr. S. Manohar through virtual mode and Mr. A. Pradhan, learned Additional Standing Counsel for the State.

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The Petitioner is an accused in connection with Special G.R Case No.86 of 2022 pending on the file of learned Sessions Judge-cum-Special Judge, Malkangiri, arising out of Chitrakonda P.S. Case No.62 of 2022 for commission of the alleged offence under Sections 20(b)(ii)(C) & 25 of the NDPS Act.

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Being aggrieved by the rejection of his application for bail U/s. 439 Cr.P.C by the learned Sessions Judge-cum-Special Judge, Malkangiri by order dated 16.01.2023 in the aforementioned case, the present bail application has been filed. 4. This is the second journey of the Petitioner to this Court.

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Page 1 of 13

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BLAPL No.7801 of 2023

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The earlier bail application of the Petitioner in BLAPL No.1184 of 2023 assailing the very impugned order, which is at Annexure-3 passed by the learned Special Judge, Malkangiri dated 16.01.2023 in Special G.R. Case No.86 of 2022 arising out of Chitrakonda P.S. Case No.62 of 2022 dated 20.05.2022 under Sections 20(b)(ii)(C)/25 of the NDPS Act, was disposed of as withdrawn by order dated 28.03.2023.

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The order passed on 28.03.2023 for convenience of ready reference and brevity is extracted hereunder;

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“ORDER 28.03.2023 Order No. 02. 1. Learned counsel Ms. K. Pandey appearing on behalf of Mr. S. Manohar learned counsel for the petitioner seeks permission to withdraw this bail application. 2. Accordingly, the BLAPL stands disposed of withdrawn.”

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It is apt to note that learned counsel appearing in the case at hand was the learned counsel at whose behest the said withdrawal was sought.

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Maintainability

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When this matter was taken up for consideration, learned counsel for the State Mr. A. Pradhan raised primary objection regarding maintainability inasmuch as it was the contention of the learned counsel for the State that impugned order dated 16.01.2023 was already the subject matter of consideration in BLAPL No.1184 of 2023. Since the self-same order of rejection is being assailed and there being no change of circumstance, the

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BLAPL No.7801 of 2023

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present BLAPL is liable to be rejected on the said ground alone and in this context, he relies on the order of the Hon’ble High Court of Madhya Pradesh in the case of Manisha Neema vs. State of M.P, 2003 (2) M.P.L.J 587 and the judgment of Hon’ble High Court of Jammu and Kashmir and Ladakh in the case of Khursheed Ahmad Kanna vs. UT of J & K, 2021 SCC OnLine J&K 751.

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Per contra, the learned counsel for the Petitioner Mr. S. Manohar relied on the decisions of the Apex Court in the cases of

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i. Sundeep Kumar Bafna vs. State of Maharashtra and another, (2014) 16 SCC 623

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ii. Rani Dudeja vs. State of Haryana, (2017) 13 SCC 555 iii. Sharad vs. the State of Maharashtra in Criminal Appeal No.1221/2019 (Special Leave to Appeal (Crl.) No.2232/2018) disposed of on 08.08.2019

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The point for consideration in the case of Sundeep Kumar Bafna (Supra) has been set out in the very opening paragraph of the said Judgment which, is extracted hereunder for convenience of ready reference;

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“…………. The futility of the appellant's endeavours to secure anticipatory bail having attained finality, he had once again knocked at the portals of the High Court of Judicature of Bombay, this time around for regular bail under Section 439 of the Code of Criminal Procedure (CrPC), which was declined with the observations that it is the Magistrate whose jurisdiction has necessarily to be invoked and not of the High Court or even the Sessions Judge. The

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BLAPL No.7801 of 2023

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legality of this conclusion is the gravamen of the appeal before us………..”

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10.A. The Apex Court gave its finding with regard to the issue as quoted above at paragraph 24 @ page 647 and Paragraph 33 @ Page 652. The same is culled out hereunder for convenience of ready reference;

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“24. In this analysis, the opinion in the impugned judgment incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him.”

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xxx xxx xxx

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“33. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Court's custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to

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BLAPL No.7801 of 2023

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decide whether the applicant-appellant had shown sufficient reason or grounds for being enlarged on bail.”

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The issue in the case of Rani Dudeja (Supra) is set out in paragraph 2. And, in paragraph 3 thereof, the Apex Court decided the issue. It is apt to note that the same related to filing of petition for anticipatory bail under Section 438 of Cr.P.C.

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11.A. Paragraph-2 and 3 of the said judgment is extracted hereunder;

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“2. The appellant approached the High Court with a petition under Section 438 CrPC. By the impugned order dated 7-3-2017, the petition was rejected on the ground that the appellant had filed a petition earlier and the same had been withdrawn and, therefore, the appellant cannot be allowed to reagitate the matter on merits.

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We are afraid, the stand taken by the High Court cannot be appreciated. The petition was for anticipatory bail and the one which had been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits. On change of circumstances, when another application under Section 438 CrPC was filed, the High Court should have considered the same on merits. The principle of res judicata could not have operated in an application for bail.”

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In the case of Sharad (Supra) the issue involved is extracted hereunder;

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xxx xxx xxx

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“Having carefully scrutinized the material available on record, we are of the considered view that the High Court has passed the impugned order, without application of its mind, by revoking the bail granted to

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BLAPL No.7801 of 2023

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the appellant by the Additional Sessions Judge-3, Nagpur in Misc. Criminal Application No. 1847 of 2017, on the ground that the application was not maintainable before the Trial Court as the appellant previously approached the High Court for bail and subsequently withdrew the bail application.”

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12.A. On a bare perusal of the aforementioned judgment, it is manifestly clear that it does not relate to the pointing issue regarding maintaibility, as raised by the learned counsel for the State.

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The order of the Madhya Pradesh High Court in the case of Manisha Neema (Supra) relied upon by the learned counsel for the State the issue is stated in Paragraph-3 of the order and is quoted hereunder;

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“3. The contention of the learned counsel for the applicant is that section 438 of the Criminal Procedure Code provides concurrent jurisdiction and therefore, it is the choice of the applicant to approach either of the Courts. In the application, the applicant has not mentioned the facts of the case as to how and on what basis, she has an apprehension for her arrest which may facilitate this Court to apply its mind effectively while using power under section 438 of the Code of Criminal Procedure. In the application, no reasons have been assigned as to why she has not approached and what are the special circumstances under which, the applicant filed this application directly before this Court though she is not a permanent resident of Indore. She is resident of Subhash Chowk, Sanawad (District Khargone, M.P.). The applicant has even not mentioned that as to how she is connected with the firm and whether it is a partnership firm or proprietory

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BLAPL No.7801 of 2023

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firm. If it is a partnership firm, then, whether she is a working partner or sleeping partner, has also not been mentioned.”

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13.A. And, the judgment of Hon’ble High Court of Jammu and Kashmir and Ladakh in the case of Khursheed Ahmad Kanna (supra) the issue involved, stated in paragraph 12 of the judgment is extracted hereunder;

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“12. In the instant case, the petitioner has approached this Court directly without exhausting the remedy before learned Special Judge and even if petitioner did approach the said Court, yet he abandoned the application midway without actually exhausting the said remedy as the petitioner withdrew the said application. There are no exceptional circumstances in the case in hand which would entitle the petitioner to move the bail application directly before this Court.”

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The decisions relied upon by both the learned counsel for the Petitioner and the State do not lend any assistance, to decide the issue as to whether this Court can consider the bail application on merits when the earlier bail application was withdrawn, relating to the self-same impugned order, passed by the learned Special Judge.

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The submission of the learned counsel for the Petitioner that since earlier bail application in respect of the self-same impugned order was withdrawn, there is no bar to assail the very order without moving the learned Special Judge de novo militates against commonsense. Inasmuch as, it does not stand to reason as to why an accused will withdraw an application when the Court is inclined to grant him bail.

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BLAPL No.7801 of 2023

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Be that as it may, such question of maintainability is left open to be decided.

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MERIT OF THE CASE

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It is the case of the prosecution that on 20.05.2022 at about 10.30 A.M., S.I. Mr. Sarbeswar Bhoi was performing blocking duty and motor vehicle checking between Mantiriput Chowk to the road running from Balimela to Chitrakonda. Around 11 A.M. one TATA ARIA vehicle bearing Registration No.JH-05-BG-3870 was found to be coming in a high speed from Balimela side and four persons were sitting in the said Car. On seeing the police personnel, the driver and other three persons got down from the vehicle and started running towards the jungle. But they were nabbed and on interrogation they disclosed their names as Prakash Sardar, Harendra Kumar, Susil Kumar and present Petitioner Bijendra Singh.

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On checking, police found six numbers of polythene bags in the middle seat and back side of the vehicle containing suspicious materials. In the presence of the Executive Magistrate contraband to the tune of 253 kg 300 grams Ganja was recovered from the accused persons. Since the accused persons had conscious and exclusive possession of the contraband, they were forwarded to the Court and the charge sheet in the case at hand has been filed on 14.11.2022 and the present Petitioner along with co-accused are facing trial.

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It is stated by the learned counsel for the Petitioner that since the Petitioner is in custody from 20.05.2022 and there is no significant progress in trial, he ought to be released on bail and it is his further submission that it is the case of false implication

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BLAPL No.7801 of 2023

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and he also alleges noncompliance of Sections 42 and 50 of the NDPS Act.

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It is the submission of the learned counsel for the Petitioner, Mr. Manohar that the twin condition contained in Section 37(1)(b)(ii) of the NDPS Act are satisfied in the case at hand. Hence, it ought not to deter the Court from releasing the Petitioner on bail. And, it is his further submission that inference under Section 114(g) of the Evidence Act should be drawn against the prosecution and relying on the order of the Apex Court in the case of Rabi Prakash vs. The State of Odisha reported in 2023 LiveLaw (SC) 533, Petitioner seeks release, as he is in custody since 20.05.2022.

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Per contra, the learned counsel for the State, Mr. A. Pradhan opposes the prayer for bail in view of the bar contained in Section 37(1) of the NDPS Act and refutes the allegations relating to false implication and violation of statutory provision etc.

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It is the further submission of the learned counsel for the State that co-accused Harendra Kumar who is similarly placed with the present Petitioner had moved this Court in BLAPL No.1183 of 2023 and the same was withdrawn with liberty to move at later stage after examination of material witnesses.

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It is stated that the Petitioner is at all fours with said coaccused. Hence, the present BLAPL does not merit consideration. 24. To fortify his stand regarding adherence to the statutory provisions, learned counsel for the State refers to the statement of the I.O. wherein, option was given to the detainees in writing in Odia and Hindi whether they want to be searched along with the

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BLAPL No.7801 of 2023

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plastic bag by the Executive Magistrate or any Gazetted Officer and the requisition addressed to the Sub-Collector cum-S.D.M. Malkangiri to depute the Executive Magistrate to the spot to remain present during search and seizure.

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He also relies on the statements of the independent witnesses Chaitan Nag and Dambru Nag, CSW Nos.2 & 3 respectively to fortify his submission. He also draws attention of this Court to the compliance of Section 42 of the NDPS Act with reference to case diary.

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On the basis of recitals in the Case Diary, it is stated that the Petitioner has criminal antecedent.

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25.A. The criminal antecedent relating to the Petitioner as stated in the case diary is extracted hereunder;

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xxx xxx xxx

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Received the C/A verification from SHO, Daunagar PS in the name of Accused Bijendra Singh(45)S/o- Ramprasad Singh of vill-Talar PSDaunagar Dist-Aurangabad (Bihar). From the available crime records and found he was involved in the Daunagar PS Case no.24/22 Dtd.13.01.2022 U/s-Bihar Prohibition and Excise Amendment against him. The report is enclosed here with in a separate sheet.

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xxx xxx xxx

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It is the further submission of the learned counsel for the State that since the Petitioner does not ordinarily reside in the State of Odisha, he is a flight risk and bail application does not merit consideration of this Court, on this count also.

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BLAPL No.7801 of 2023

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The law governing the adherence to Section 42 of the NDPS Act is no longer res integra. Though total non-compliance of the Section 42 of NDPS Act can never be countenanced. (Ref: Boota Singh & others vs. State of Haryana; 2021 (2) Crimes 164 (SC) .).

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In the case of Karnail Singh vrs. State of Haryana : (2009) 8 SCC 539 the Apex Court has clearly laid down that aspect of compliance of Section 42 of NDPS Act has to be decided in each case on its own facts.

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27.A. In the factual background of the case at hand, as noted, this Court is of the considered view that there has been compliance of Section 42 of NDPS Act.

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As regards alleged infraction of Section 50 of the NDPS Act, the submission of the learned counsel for the Petitioner, Mr. Manohar has to be tested on the touch stone of the law laid down by the Apex Court in the case of Vijay Singh Chandubha Jadeja vs. State of Gujrat [2010 SCC Online SC 1248] wherein, it has been laid down that infraction of Section 50 of the NDPS Act “is a matter of trial”.

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In this context, paragraph 31 of the said judgment is culled out hereunder;

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“31. ………….. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.”

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BLAPL No.7801 of 2023

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On consideration of materials on record, this Court is not persuaded to hold that there is no prima facie case against the Petitioner and keeping in view the criminal antecedent of the Petitioner, as noted, in the considered opinion of this Court the Petitioner cannot cross the twin bars in terms of Section 37(1)(b)(ii) of the NDPS Act. As rightly stated by the learned counsel for the State, the Petitioner is also a flight risk and on the basis of materials the challenge to infraction of Section 42 and 50 of the NDPS Act has to be negated.

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On a conspectus of materials on record, this Court does not find any merit in the case at hand. The bail application accordingly stands rejected.

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It is needless to state here that the observations made herein are only for the purpose of consideration of the bail application of the Petitioner and ought not to be construed as expressing any opinion relating the complicity of the Petitioner which has to be adjudicated independently in the impending trial including the challenge to the infraction of statutory provisions, false implication etc.

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Since trial has already commenced, as stated by the learned counsel for the State and four witnesses stated to have been examined in the meanwhile, learned Court in seisin is requested to conclude the trial expeditiously as the Petitioner is in custody since 20.05.2022.

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Before parting with the case, it is worth stating with all humility that the Apex Court has been repeatedly reiterating not to cite judgments mechanically without reference to the factual matrix of each case. The case at hand is a glaring instance where

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BLAPL No.7801 of 2023

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plethora of judgments have been relied upon by the learned counsel for both the sides relating to maintainability and the learned counsel for the Petitioner on merits oblivious of the facts. In doing so, the judgment of the Apex Court in the Case of Haryana Financial Corporation V. Jagdamba Oil Mills reported in (2002) 3 SCC 496 evidently escaped the attention of the learned counsel.

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It is high time that lawyers who, first and foremost are officers of the Court exercise discretion in citing precedents which, would go a long way in facilitating speedy and just

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disposal of the cases.

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(V. NARASINGH)
Judge
Orissa High Court, Cuttack
Dated the 19 th of October, 2023/ Santoshi

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Signature Not Verified

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Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Oct-2023 13:54:58

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BLAPL No.7801 of 2023

Bijendra Singh v. State of Odisha

Case brief

What is this about?

What did the court decide?

Bijendra Singh v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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