Birendra Singh vs State Of Odisha

G. Satapathy, J

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

This is a bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with T.R. Case No.71 of 2021 arising out of Muniguda P.S. Case No. 80 of 2021 pending in the file of learned Additional Sessions Judge-cum-Special Judge, Gunupur, for commission of offences punishable under Section 20(b)(ii)(C)/29 of NDPS Act, on the allegation of transporting 110 Kgs. of Contraband Ganja in a TATA Indigo car bearing Regd. No. OR-02AJ 2939.

Heard Mr. A. Mohanty, learned counsel for the petitioner and Mrs. S.R. Sahoo, learned ASC in the present matter and perused the record.

It appears from the report of the learned Additional Sessions Judge-cum-Special Judge, Gunupur that six out of fourteen charge sheeted witnesses have already been examined in this case, but the petitioner has been detained in custody since 28.06.2021 and trial is yet to be concluded.

It is, however, contended on behalf of the State that Section 37 of NDPS Act would operate as a bar for release of the petitioner on bail, but as regards the first condition of Section 37 of NDPS Act, the leaned ASC having already heard in the matter, the first condition appears to have been complied with. As far as the second condition of Section 37 of the NDPS Act Re: forming of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty of the offence and he is unlikely to commit offence while on bail, this Court does not consider it proper to form any opinion in this regard at this stage, especially when the trial is yet to be completed even after custody of the petitioner for near about two years and three months and the settled position of law that an accused is presumed to be innocent unless proven to be guilty beyond all reasonable doubts and that no criminal antecedent of the petitioner is brought to the notice of this Court. The prolong detention of the petitioner in custody generally militates against the most precious Fundamental right guaranteed under Article 21 of the Constitution and thereby, as such the conditional liberty would eclipse the statutory embargo U/S. 37 of NDPS Act.

In view of the aforesaid facts and taking into consideration the prolong detention of the petitioner in custody and no definite timeline appears to be indicated by the trial Court for disposal of the case in its report and especially when these factors are pitted against mere examination of six out of fourteen charge sheeted witnesses, this Court considers that the petitioner has successfully discharged the twin conditions of Section 37 of the NDPS Act.

This Court, however, finds merits in the submission of the learned ASC that since the petitioner being a resident of outside State, some stringent conditions are required to be imposed upon him for his release on bail.

Hence, the prayer for bail application of the petitioner stands allowed and the petitioner is allowed to go on bail on furnishing bail bonds of Rs.1,00,000/-(Rupees One Lakh) only with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following conditions:-

(i) the petitioner shall not commit any offence while on bail,

(ii) the petitioner shall attend the trial Court on each date of posting without fail unless his attendance is dispensed with. In case the Petitioner fails without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioner for offence U/S.229-A of IPC in accordance with law,

(iii) in case the petitioner misuses the liberty of bail and in order to secure his presence, proclamation U/S.82 of Cr.P.C. is issued and the petitioner fails to appear before the Court on the date fixed in such proclamation, then, the learned trial Court is at liberty to initiate proceeding against him for offence U/S.174-A of the IPC in accordance with law,

(iv) the petitioner shall not leave the jurisdiction of the trial Court without prior permission till disposal of the case,

(v) the petitioner shall report attendance before the Jurisdictional Police Station once in a week preferably on Sunday of every month in between 10 A.M. to 12 Noon for six(06) months from the actual date of release from the custody and

(vi) the Petitioner shall inform the Court as well as the I.O. as to his place of residence during the trial by providing his mobile number(s), residential address, e-mail, if any, and other documents in support of proof of residence.

The I.I.C. of Jurisdictional Police Station shall not detain the petitioner unnecessarily after recording his attendance beyond the time as stipulated.

It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the petitioner without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. In the wake of aforesaid, the subsequent involvement of the petitioner in future for any offence under NDPS Act involving commercial quantity of contraband article on prima facie accusations may be treated as a ground for cancellation of bail in this case.

It is made clear that the Court in seisin of the case, while releasing the Petitioner on bail may verify the residential proof of the local sureties by taking the help of local police, if required to ascertain their proof of residence and such exercise must be completed within a reasonable period of not more than one week.

Accordingly, the BLAPL stands disposed of.

Issue urgent certified copy of the order as per Rules.

……………………………