Allowed

V. Sitaya v. State of Odisha

Orissa HC19 Apr 2024BLAPL/379/2023

Case brief

AI extract

What is this about?

The Court granted regular bail to the petitioner charged under the N.D.P.S. Act, holding that Art. 21 overrides Section 37 bail restrictions due to over three years of trial delay caused by authorities failing to examine sufficient witnesses, despite commercial quantities of contraband recovered.

What did the court decide?

Petitioner released on bail bond of Rs. 50,000 with two sureties, subject to strict conditions regarding location, police reporting, passport surrender, and court appearance.

V. Sitaya Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.379 of 2023

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V. Sitaya ..... Petitioner

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Represented By Adv. - Manoranjan Padhy

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-versus-

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State Of Odisha

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..... Opposite Party

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Represented By Adv. – A.P.Das, A.S.C.

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CORAM:

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THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

Order No.

19.04.2024

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

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Heard learned counsel appearing for the Petitioner and learned Additional Standing Counsel appearing for the State-Opposite Party. Perused the materials placed before this Court.

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The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioner for regular bail in connection with Machhkund P.S. Case No.39 of 2021, corresponding to T.R. Case No.43 of 2021, pending in the Court of learned Sessions Judge-cumSpecial Judge, Dist-koraput for alleged commission of offence punishable under Sections 20(b) (ii) (c) of N.D.P.S. Act.

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It is submitted by learned counsel for the petitioner that the petitioner is in custody since 03.05.2021 i.e. almost close to 3 years the petitioner has been languishing in jail custody. In the meantime, although the charge sheet has been filed, however the trial has not

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progressed. He further contended that there is no likelihood that the trial would be concluded in the near future. Learned counsel for the petitioner further contended that as per the F.I.R. allegation, although the petitioner was arrested from the spot and contraband articles were recovered from the exclusive and concession possession of the petitioner, however the bar under Section 37 would not be attracted to the present case in view of the judgment of the Hon’ble Supreme Court in Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648 , Dhiroj Kumar Shukla vs. State of Uttar Pradesh SLP(Crl.) 6690 of 2022 , Rabi Prakash vs. State of Odisha reported in 2023 SCConline SC 1109. It was also contended that the petitioner does not have any similar criminal antecedent. On such grounds learned counsel for the petitioner submitted that the petitioner be released on bail that on any terms and conditions imposed by this Court.

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Learned counsel for the State on the other hand objected to the release of the petitioner on bail on the ground that the quantity of contraband Ganja recovered from the exclusive and concession possession of the petitioner is more than the commercial quantity, therefore, the bar under Section 37 of the N.D.P.S. Act would be attracted. He further contended that the twin conditions laid down in Section 37 of the Act is to be applied before releasing the petitioner on bail. Judging the case of the petitioner by applying the aforesaid twin conditions, learned counsel for the State submitted that the petitioner is not entitled to be enlarged on bail at this juncture. It was also contended that since the cases of illegal contraband are on a rise articles in the State, no leniency should be shown to the persons who are involved in such type of offences. He further expressed his that apprehension in the event the petitioner is released on bail there is every likelihood that the petitioner might indulge in the similar evidence and that petitioner do

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not belong to the State of Odisha. It was further contended that there is every possibility that he might abscond from justice in the same would eventually cause delay in conclusion of trial. On such ground learned counsel for the State submitted that bail application does not reserve to be considered at this juncture.

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On perusal of the record this Court observes that taking into consideration the period of detention, this Court had called for a report from the Court in seisin over the matter with regard to the progress in trial. A report was furnished to the Registry which was received from the Additional Sessions Judge-cum-special Judge, Koraput in respect of T.R. Case No.43 of 2021. The learned Special Judge, Koraput who has been entrusted with trial of the T.R. Case No.43 of 2021 corresponding to Machhkund P.S. Case No.39 of 2021 has submitted a report stating therein that out of 16 charge sheet witnesses, only one witness i.e. the informant has been examined so far up to 30.01.2024. However, the case has been further posted for trial on 03.02.2024. on a careful consideration of the report submitted by the Special Judge it appears that although the petitioner has been in custody for close to 3 years only one witness has been examined out of 16 charge sheet witnesses. This Court further observes that in cases involving the offences under the N.D.P.S. Act where the witnesses are all official witnesses, the State Government and the authorities are not taking adequate steps for examination of the official witnesses. It further appears that despite several directions no steps have been taken in this regard to ensure that official witnesses appear before the trial Court in time for recording of their deposition.

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While considering the bail application of the petitioner, this Court also perused the judgment of the Hon’ble Supreme Court in the case of Hussainara Khatoon & others vs. State of Bihar, reported in

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(1980) 1 SCC 81 , Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648 , Dhiroj Kumar Shukla vs. State of Uttar Pradesh SLP(Crl.) 6690 of 2022 , Rabi Prakash vs. State of Odisha reported in 2023 SCConline SC 1109 . In all the aforesaid cases the Hon’ble Supreme Court has laid emphasis on early conclusion of the trial. Further, the right of the accused to get bail was considered from the point of view of the provisions contained in article 21 of the Constitution of India. While considering the provisions contained in Section 37 of the N.D.P.S. Act against the Article 21 of the Constitution of India, the Hon’ble Apex Court has said the right to liberty of a citizen cannot be curtailed or set aside in view of the provision contained in Section 37 of the N.D.P.S. Act. The Apex Court has also held that a case where the trial is unnecessarily being prolonged or delayed no fault of the accused-petitioner then the liberty of the accused-petitioner is to be respected and the accused petitioner should be released on bail despite the provisions contained in Section 37 of the N.D.P.S. Act. Applying the aforesaid ratio to the facts of the present case, this Court is of the considered view that although the petitioner is in custody since 03.05.2021 and a large quantity of contraband Ganja was recovered from the possession of the petitioner, the bar under Section 37 of the N.D.P.S. Act will be attracted to the facts of the present case. However, by applying the ratio laid down by Hon’ble Supreme Court in the abovenoted judgments, this Court is of the view that considering the fact that only one witness has been examine so far, the out of the 16 charge sheet witnesses, the right of the accused petitioner under article 21 of the Constitution of India is to be protected and the petitioner be enlarged on bail. However, while doing so, this Court considering the fact that the allegations made in the F.I.R. are serious in nature and that the petitioner does not belong to the locality, is of the view that stringent conditions are to be imposed to ensure appearance of the

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accused before the Court in seisin over the matter in the course of trial.

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Considering the submissions made by learned counsels appearing for the respective parties, on a careful examination of the materials on record, further taking into consideration the report submitted by the Special Judge, Koraput, pursuant to the direction of this Court on 30.01.2024. Additionally taking into consideration that the fact that petitioner is in custody since 03.05.2021 and only one witness out of 16 charge sheet has been examined so far, this Court is inclined to release the petitioner on bail subject to petitioner furnishing a bail bond of Rs.50,000/-(Rupees Fifty Thousand only) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter. The release of the petitioner shall also be subject to the following terms condition.

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I. The petitioner shall not leave the jurisdiction of the Court in seisin over the matter without specific permission of the court;

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II. he shall appear before the jurisdictional Police Station once in a fortnight preferably on ‘Sunday’ in between 10.00 A.M. to 1.00 P.M. for period of two months and thereafter once in a month preferably on ‘Sunday’ in between 10.00 A.M. to 1.00 P.M. till conclusion of trial;

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III. he shall surrender his passport/travel documents before the court in seisin over the matter at the time of his release on bail, if does not have a passport then he has to file an affidavit in the court in seisin over the matter indicating such facts;

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IV. he shall appear before the court in seisin over the matter

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on each date of posting without fail;

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V. he shall furnish his address and mobile number to the police station from time to time;

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VI. he shall not indulge in any similar nature of offence while on bail; and

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VII. he shall furnish his address and mobile number to the jurisdictional police station regarding his whereabouts, his address, mobile number and other details and shall up-date the same at regular intervals.

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

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