Dhanurjaya Khilla Vs State Of Orissa

V. Narasingh, J

Since both the BLAPLs relate to the same P.S. Case (Malkangiri P.S. Case No.309 of 2023) (in the Court of learned Sessions Judge-Cum-Special Judge, Malkangiri), they are heard together and disposed of by this common order, on the consent of the parties.

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

The Petitioners are accused in connection with Special G.R. Case No. 137 of 2023, pending in the Court of the learned Sessions Judge-Cum-Special Judge, Malkangiri, arising out of Malkangiri P.S. Case No.309 of 2023 for alleged commission of offences under Sections 20(b)(ii)(c ) of NDPS Act

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

Being aggrieved by the rejection of their application for bail U/s.439 Cr.P.C. by the learned Special Judge, Malkangiri by order dated 30.11.2023 in the aforementioned cases, the present BLAPLs have been filed.

It is submitted by the learned counsel that the Petitioners are in custody since 03.06.2023 on the accusation that they along with the co-accused are involved in the transportation of contraband to the tune of 60Kgs (Ganja).

Learned counsel for the Petitioners submits that charge sheet has been filed on 28.11.2023 and also submits that the co-accused one Debasish Dey @ Debashish Dey has been released on bail by this Court by order dated 31.01.2024 in BLAPL No.13828 of 2023. Hence on the ground of parity, the Petitioners seek release.

It is stated by the learned counsel for the Petitioners that independent seizure from all the accused persons have been clubbed together so as to attract the bar under Section 37(1)(b)(ii) of NDPS Act.

Learned counsel for the State opposes such submission relying on the seizure list and submits that there has been joint seizure from all the accused persons and it is not permissible to advance such argument of segregation at this stage.

Learned counsel for the State further submits that in view of the twin bar contained in Section 37(1)(b)(ii) of NDPS Act, the Petitioners ought not to be released on bail.

Learned counsel for the Petitioners further submits that the Petitioners are aged about 20 & 21 years and are the first offenders and relying on the dictum of the Apex Court in the case of Satender Kumar Antil vrs. Central Bureau of Investigation & another, 2022 (10) SCC 51 relating to parity, it is submitted that the Petitioners may be released on bail.

Taking into account the nature of allegation and that the Prosecution has cited 20 witnesses to drive home the charge and the trial is likely to linger and the age of the Petitioners and keeping in view the law laid down in the Apex Court in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648, this Court directs the Petitioners 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 antecedents of the Petitioners. If it comes to the fore that the Petitioners have any criminal antecedent, this order shall not be given effect to.

Additionally, it is directed that the Petitioners 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 learned Court in seisin.

Accordingly, the BLAPLs stand disposed of.

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

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