Deba Padiami vs State Of Odisha

Dr.Justice S.K. Panigrahi, J

F.I.R. No.

Dated

Police Station

Case No. and Courts’ Name

Sections

96

05.08.2020

Kalimela

T.R. case No.74 of 2020 pending in the court of learned Addl. Sessions Judgecum- Special Judge,Malkangiri

Section 20(b)(ii)(C) of the N.D.P.S. Act.

This matter is taken up through hybrid arrangement.

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

The petitioner being in custody in connection with Kalimela P.S. Case No. 96 of 2020 corresponding to T.R.Case No.74 of 2020 pending in the court of learned Addl. Sessions Judge-cum- Special Judge, Malkangiri registered for the alleged commission of offence under Sections Section 20(b)(ii)(C) of the NDPS Act has filed this petition for his release on bail.

It is alleged in the F.I.R. that on 05.08.2020 while the S.I. of Police of Kalimela P.S. along with his staff was performing evening patrolling duty in between Kalimela to Poteru area at about 1 A.M. they detected that near Kangurukonda village bridge two autos along with two motor cycles coming from the side of Kalimela and going towards Poteru being loaded with gunny bags. The first Auto was stopped wherein three occupants were present holding plastic gunny bags. On being asked, those three persons disclosed their names. On seeing the detention of the first auto, the occupants in another auto and the motor cycles riders fled away from the spot leaving the auto and motorcycles taking the advantage of darkness. However, the Police recovered 525 Kgs. of Ganja from their possession and seized. Thereafter, they forwarded them to the jail custody including the present petitioner.

Learned counsel for the petitioner submits that the present petitioner is a passenger. He was travelling in the auto from Surat to his destination place. He had no knowledge about the contents of the plastic bag. Nothing has been seized from his possession. Further, no witnesses have whispered an incriminating word against the petitioner. The petitioner has been languishing in custody since 05.08.2020 which is more than two years and trial has not yet been commenced. Further, there is less likelihood of completion of trial in the near future.

Learned counsel for the State vehemently opposes the bail prayer of the petitioner.

Hon'ble Supreme Court have held that right to have speedy trial is a fundamental right of a citizen. Hence, keeping a person in custody for such a long time without any trial is not justified and violative of his fundamental right. The importance of speedy trial has been emphasized in the case of Hussainara Khatoon & Ors. vs Home Secretary, State of Bihar, wherein the Hon'ble Supreme Court has iterated that:

"Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just" procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial."

He further argues that the period of long incarceration suffered, which entitle the Petitioner for grant of bail. Right to Speedy trial is a fundamental right of an under trial prisoner and this observations have been resonated, time and again, in several judgments including that of Kadra Pahadiya & Ors. v. State of Bihar1981)3 SCC 671  wherein it has been  stated  that  the  obligation  of  the  State  or  the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in a country like ours, where the large majority of the accused come from poorer and weaker sections of the society and are not versed with laws and after face the dearth of competent

legal advice, the application of the said NDPS Rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But an accused cannot be disentitled from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial.

The Supreme Court has also held in Mohd. Muslim @ Hussain v. State (NCT of Delhi) SLP (Crl.) No. 915 of 2023  that incarceration has further deleterious effects where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.

Considering the submissions made and the factum of release of the co-accused person, this Court is inclined to release the Petitioner on bail. Accordingly, it is directed that the court in seisin over the matter shall release the

Petitioner on bail in the aforesaid case on stringent terms and conditions with further conditions that:

i. the Petitioner shall appear before the learned trial court on each date of posting of the case,

ii he  shall  not  indulge  in  any  criminal offence while on bail and

iii. he shall not tamper with the evidence of the prosecution witnesses in any manner.

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

The BLAPL is, accordingly, disposed of.

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