Babula Phalam vs State Of Orissa

V. Narasingh, J

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

The Petitioner is an accused in connection with Spl. G.R. Case No.39 of 2021, pending before the Court of the learned Sessions Judge-cum-Special Judge, Malkangiri, arising out of Mathili P.S. Case No.43 of 2021, for commission of alleged offences under Section 20(b)(ii)(C) of 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.

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 12.01.2024 in the aforementioned case, the present BLAPL has been filed.

This is the fifth journey of the Petitioner to this Court. The earlier bail application of the Petitioner were rejected by orders dated 28.06.2022, 17.03.2023, 23.08.2023 & 20.12.2023 in BLAPL No.3727 of 2021, 10542 of 2022, 3649 of 2023 13058 of 2023.

It is submitted by the learned Senior Counsel that the Petitioner is in custody since 12.03.2021 and the bail application is being moved primarily on the ground that because of long incarceration, the Petitioner is entitled to be released on bail.

It is the case of the Prosecution that one unregistered Mahindra Bolero pick up vehicle bearing engine No.GHH1A10557 and Chasis No.MA1ZU2GHKH1A14925 and one Mahindra Bolero pick up vehicle registration No.OD-10-N-6322 and one Honda Unicorn red colour motor cycle bearing registration No.OD-10-Q-3991 are involved were used by the Petitioner along with the co-accused in the transportation of contraband to the tune of 879Kgs (Ganja).

Learned Senior Counsel for the State, on instruction, submits that the case of the Petitioner is that he was the rider of the Honda Unicorn Motor cycle and the seizure of the said vehicle which has been marked as Ext.25 indicates that the contraband, is to the tune of 34.5 Kgs.

Learned Senior Counsel further submits that the Petitioner is the first offender, hence his further continuance in custody is unwarranted.

Learned counsel for the State opposes the prayer for bail and submits that since the seizure is a joint one it is not permissible for the Petitioner to segregate the same at this stage in the manner as pleaded.

It is his further submission that since all the vehicles were going in tandem, it cannot be said that the present Petitioner did not have conscious possession of contraband and referring to the order of the Apex Court in the case of State by the Inspector of Police vs. B. Ramu in SLP(Crl.) No(s).8137 of 2022 dated 12.02.2024 submits that since charge sheet has been filed, prima facie case is well made out. Hence, in view of the bar contained in Section 37(1)(b)(ii) of NDPS Act, the Petitioner ought not to be released on bail.

It is apt to note here that this Court by order dated 23.08.2023 in BLAPL No.3649 of 2023 taking into account the report submitted by the learned Court in seisin that the trial is likely to be concluded by end of third quarter, was not inclined to entertain the bail application of the Petitioner and liberty was granted to renew his prayer.

Since it was stated at the Bar that the trial is lingering, a report was called for from the learned Court in seisin and in the report dated 05.04.2024, learned Court in seisin has indicated that out of 19 charge sheeted 7 have been examined and the case is now posted to 30.04.2024.

Taking into account tardy progress and considering the right of the Petitioner for speedy trial and keeping in view the order of Apex Court in the case of Rabi Prakash vrs. State of Odisha, 2023 SCC Online SC 1109, since the Petitioner is the first offender, this Court directs his release 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 month on such date and time to be fixed by the learned Court in seisin till conclusion of trial. Certification of such appearance shall be submitted to the Court in seisin.

It is needless to state here that the observations made herein are only for the purpose of consideration of bail and ought not to be understood as this Court expressing any opinion regarding the complicity of the Petitioner and the same has to be adjudicated independently in the impending trial.

Accordingly, the BLAPL stands disposed of.

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

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