John @ Johan Raita vs State Of Odisha

A.K. Mohapatra, J

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

Heard learned counsel for the Petitioner and learned counsel for the State. Perused the F.I.R., case diary and other relevant documents as well as statement of the witnesses.

This is an application under Section 439 of the Criminal Procedure Code.

The petitioner is an accused in G.R. Case No.95 of 2021 arising out of Adava P.S. Case No.93 of 2021 pending in the court of learned Additional Sessions Judge-cum-Special Judge, Gajapati at Paralakhemundi for commission of offence punishable under Sections 20(b)(ii)(C)/25 /29 of the N.D.P.S. Act.

The prosecution case, in a nutshell, is that on 02.09.2021 at around 9.31 A.M., while the officials of Adava Police Station were conducting their patrolling duty, they got credible information from reliable sources that the contraband Ganja is being loaded at near Village Balibandha Chhak in a Truck by the drug peddlers. After getting such information from that reliable source the raiding staffs proceeded to the spot to verify the veracity of the information. It is respectfully submitted that after reaching at the spot at about 11.00 A.M., they saw that one while colour Truck is in starting position and about to proceed and one Motor cycle was there. Seeing the truck, the raiding party suddenly arrived there and rebelled the vehicle. On verification of the Truck bearing Registration Number-HR-56-B-9002 and one H.G. Deluxe Motor Cycle bearing Registration Number-OD-20-B-2486 and they found four persons in the driver chamber and one person on the dala of the truck. On being asked by the police, they disclosed their names. However, the informant and his staffs could be able to apprehend the accused persons from the spot. On being searched of the vehicle found huge quantity of ganja. During the search the police officials found 315 Kgs. 100 grams of contraband ganja and after all the formalities of NDPS Act and seized the contraband articles and drew the F.I.R.

It is submitted by learned counsel for the petitioner that the petitioner is in custody since 02.09.2021 on being arrested at the sport by the raiding party. He further submitted that the petitioner is no way involved and he has been falsely implicated in the present case. He has also contended that the petitioner does not have any criminal antecedents and he is in custody for almost two years and that the trial has not obvious open. It is also contended that out of sixteen witnesses, none of them has been examined so far. Therefore, there is no possibility of trial being concluded in near future.

Referring to the judgment of the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023) has held that if there is unnecessary delay in trial which affecting the rights of the accused-Petitioner as guaranteed under the Constitution of India, then the bar under Section 37 of the N.D.P.S. Act is not attracted. In such case as has been categorically held by the Hon’ble Supreme Court of India. Further, referring to the facts of the petitioner that although the petitioner is in custody almost two years and the trial and witnesses have not been examined as of now, therefore, the case of the petitioner is also similar parameter as the law laid down in the aforesaid judgment. In addition to the development, learned counsel for the petitioner submits that the petitioner belongs to the locality and there is no scope for absconding or fleeing away from the hands of the justice and that the bail application of the petitioner may be considered.

Leaned Additional Standing Counsel for the State vehemently opposes the prayer for bail of the Petitioner and submits that the quantity involved in the present case is more than the commercial quantity, which has been illegally transported. He further submits that a number of such cases are increasing day-by-day and no leniency should be shown to the Petitioner or similarly situated persons. There is possibility that the petitioner might indulge in similar nature of offence while on bail and the bail application of the petitioner should be rejected at this juncture.

Having hearing learned counsels for the parties, upon conspectus of surrounding facts and circumstances of the present case, keeping in view the law laid down in the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) disposed of on 28.03.2023) (supra) and considering the period of custodial detention of the petitioner, it is directed that let the petitioner be released on bail on furnishing a bail bond of Rs.50,000/- (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned court in seisin over the matter. While releasing the petitioner on bail, the court in seisin over the matter to impose any other conditions as would be deemed just and proper including the conditions are as follows:-

I. The Petitioner shall not be involved in any offence of similar nature;

II. he shall not tamper with the prosecution evidence or try to threaten or influence the witnesses in any manner whatsoever;

III. he shall not make any default in attending the court during trial;

IV. he shall appear before the concerned Police Station once in a month preferably on ‘Sunday’ in between 10.00 A.M. to 1.00 P.M. till conclusion of trial; and

V. they shall not leave the jurisdiction of the Court in seisin over the matter and shall furnish their address and mobile number to the police from time to time.

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

It is open for the court in seisin over the matter to impose any other conditions as may be deemed just and proper.

It is further directed that the bail granted to the Petitioner is subject to the condition that learned court below shall verify whether the Petitioner has any criminal antecedents of similar nature. In the event it is found that the Petitioner has any criminal antecedents, this bail order shall automatically stand revoked.

It is made clear that if the petitioner fail to attend the court on the date fixed on a single occasion, this order shall stand automatically revoked and the learned court below is at liberty to issue N.B.W. against the petitioners forthwith.

The Bail Application is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.

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