Bikash Digal Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2024)

Bikash Digal Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2024)

What the court decided

AI extract

Outcome

Release of the Petitioner on bail on terms to be fixed by the learned court in seisin, conditional upon verification of criminal antecedents (order inoperative if any antecedent found) and fortnightly reporting to the jurisdictional police station until conclusion of trial with certification of appearances to the court in seisin.

Issue for consideration

Whether the Petitioner may be released on bail notwithstanding the objection of the State invoking the statutory bar contained in Section 37(1)(b)(ii) of the NDPS Act. +1 more

Court's answer

Bail is granted: this Court directs that the Petitioner be released on bail on terms to be fixed by the court in seisin, notwithstanding the Section 37 NDPS Act bar raised by the State.

Ratio / Principle

Grounds relied upon by this Court for directing release: the Petitioner is a first offender; prosecution must examine 16 further witnesses; the trial is therefore likely to linger; and the Petitioner resides within the territorial jurisdiction of the court in seisin.

Key takeaways

Condition precedent to release: before releasing, the court in seisin is to verify the Petitioner's criminal antecedents; if any criminal antecedent comes to light, this bail order shall not be given effect to.ratio¶12
Additional post-release condition: the Petitioner shall appear before the jurisdictional police station once every fifteen days (date/time fixed by the court in seisin) until conclusion of trial, and certification of such appearances shall be submitted to the court in seisin.ratio¶13

Detailed headnote1 paragraphs

Orissa High Court at Cuttack, single-judge order of Justice V. Narasingh dated 28.08.2024 in BLAPL No.7660 of 2024 (petitioner Bikash Digal v. State of Odisha): the Court disposes of the bail petition by directing the release on bail of the petitioner, an accused in C.T. Case No.54 of 2023 (arising out of Phulbani Town P.S. Case No.70 of 2023) alleging offences under Sections 20(b)(ii)(C)/29 of the NDPS Act, despite the State opposing bail on account of the bar in Section 37(1)(b)(ii) of the N.D.P.S Act. The Court rests its direction on the petitioner being a first offender in custody since 13.03.2023, the prosecution having examined only 5 of 21 cited witnesses (16 remaining) so that the trial is likely to linger, and the petitioner residing within the territorial jurisdiction of the court in seisin. Release is made conditional: the court in seisin must first verify criminal antecedents, and if any criminal antecedent emerges the order shall not be given effect to; additionally the petitioner must report to the jurisdictional police station once every fifteen days until the conclusion of the trial, with certification of attendance submitted to the court in seisin. Background: an earlier bail application under U/s.439 Cr.P.C. was rejected by the Addl. Sessions Judge-cum-Special Judge, Phulbani by order dated 24.06.2024, and counsel noted this was the petitioner's third journey to this Court. Counsel for the petitioner had relied on depositions showing independent seizure witnesses P.Ws.3 and 5 resiled, invoking Ankur Chaudhary vrs. State of Madhya Pradesh, SLP (Crl.) No.4648 of 2024 dated 28.05.2024 (Apex Court), contending continued custody was unwarranted; the present Court is not shown expressly engaging with or endorsing that citation in its operative directions.

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No.7660 of 2024

Bikash Digal

…. Petitioner

Mrs. Sujata Jena, Advocate

-versus-

State of Odisha

…. Opposite Party

Mr. P.K. Maharaj, ASC

CORAM: JUSTICE V. NARASINGH

ORDER

28.08.2024

Order No.

01.

Heard learned counsel for the Petitioner and learned counsel for the State.

The Petitioner is an accused in connection with C.T. Case No.54 of 2023 pending on the file of learned Addl. Sessions Judge-cum-Special Judge, Phulbani, arising out of Phulbani Town P.S. Case No.70 of 2023 for commission of offence alleged under Sections 20(b)(ii)(C)/29 of the NDPS Act.

Learned counsel, on instruction, submits that except the present BLAPL, no other bail application of the Petitioner relating to the aforementioned P.S. case is pending in any other Court.

Page 1 of 4

Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Addl. Sessions Judge-cum-Special Judge, Phulbani by order dated 24.06.2024 in the aforementioned case, the present BLAPL has been filed.

This is the third journey of the Petitioner to this Court.

It is stated by the learned counsel that the Petitioner is the first offender and he is in custody since 13.03.2023 and the prosecution has cited 21 witnesses out of whom only 5 have been examined. Hence, on the ground of pre-trial detention, the Petitioner seeks release.

Learned counsel for the State opposes the prayer for bail in view of the bar contained in Section 37(1)(b)(ii) of the N.D.P.S Act.

Copies of the deposition of the witnesses of P.Ws.1 to 5 are on record.

Inviting the attention of this Court to such depositions it is submitted by the learned counsel for the Petitioner that P.Ws.3 and 5 who are the independent witnesses to seizure have resiled and submits that in view of the decision of the judgment of the Apex Court in the case of Ankur Chaudhary

Page 2 of 4

vrs. State of Madhya Pradesh in SLP (Crl.) No.4648 of 2024 dated 28.05.2024, further continuance of the Petitioner in custody is not warranted.

Learned counsel for the State submits that during currency of ongoing trial, this Court is not to make microscopic examination of the evidence on record.

Considering that the Petitioner is the first offender and since the prosecution has to examine further 16 witnesses, the trial is likely to linger and that the Petitioner resides within the territorial jurisdiction of the learned Court in seisin, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned Court in seisin.

Before releasing, learned Court in seisin is requested to verify the criminal antecedent of the Petitioner. If it comes to the fore that the Petitioner has any criminal antecedent , this order shall not be given effect to.

Additionally, it is directed that the Petitioner shall appear before the jurisdictional police station once every fifteen days on such date and time to be fixed by the learned Court in seisin till conclusion of

Page 3 of 4

PKS

trial. Certification of such appearance shall be submitted to the Court in seisin.

Accordingly, the BLAPL stands disposed of.

Urgent certified copy of this order be granted as per rules.

(V. NARASINGH) Judge

Signature Not Verified

Digitally Signed Signed by: PRADEEP KUMAR SWAIN Reason: Authentication Location: Orissa High Court, Cutt ack Date: 29-Aug-2024 17:26:57

Page 4 of 4