Kirtan Nayak vs State Of Orissa

S.S. Mishra, J

F.I.R No. 160 dated 22.07.2005 in Colliery Police Station, Dhenkanal was registered against one Pramod Singh and Rajendra Singh for the alleged commission of offence under Section 20 (b) of the NDPS Act. Both the accused persons in that case were admitted to bail by this Court, vide order dated 25.10.2005 in BLAPL No. 7086 of 2005. The present appellant stood as a surety for the aforementioned two accused persons.

It appears that the accused persons have absconded, therefore Non-Bailable Warrant of Arrest was issued against them by the learned trial court, vide order dated 21.12.2006. Since the NBW(A) order against the principal accused persons could not be executed, proceeding under Sections 82 and 83 Cr.P.C. was initiated and vide order dated 17.06.2018 notice was issued to the present appellant being the bailer of the absconding accused persons calling upon to show cause as to why the bail bond amount of Rs.30,000/- should not be realized from him as penalty. The matter was again taken up on 18.07.2008, 12.08.2008, 21.08.2008 and 28.08.2008. By the last order dated 28.08.2008, the learned Addl. Sessions Judge, Talcher gave final opportunity to the appellant to file show cause. Despite final opportunity was granted, the appellant neither filed the show cause nor any document in support of his case. Therefore, the learned Addl. Sessions Judge, Talcher passed the following order:-

“3. Perused the record and found that bailor Kartika Naik stood as the surety for the accused Pramod Singh in C.T. (NDPS) case No.1 of 2005 for an amount of Rs. 30,000/- on 2.6.06. As the accused Pramod Singh did not appear in the Court, N.B.W. (A) was issued against him, Subsequently, Process under Section 82 of Code of Criminal Procedure was also issued against the said accused. Notice was sent to the present bailor to show cause as to why the bail bond should not be forfeited. In spite of sufficient service of notice, the bailor did not file any show cause. So, the bail bond was forfeited and order was passed to start a Misc. case against the bailor on 17.6.2008. As the bailor has failed to file show cause as to why the bail amount should not be realised from him as penalty, and as the accused has not yet apprehended, the bailor is liable to pay the bail amount as penalty. Hence, penalty of Rs. 30,000/-(Rupees Thirty thousand) only is imposed against the bailor Kartik Naik, son of Bansidhar Naik of Village Baghuabole, P.S. Talcher. Dist. Angul. The bailor Kartika Naik is ordered to pay a Penalty of Rs. 30,000/- in default to undergo Civil Imprisonment for six months. Issue D.W. against the bailor for realization of the penalty of Rs.30,000/-. Call on 16.09.2008 for realization of the penalty amount.”

The appellant is aggrieved by the aforementioned order of the learned Addl. Sessions Judge, Talcher. Hence he preferred the present appeal under Section 449 of the Cr.P.C. assailing the aforementioned order dated 28.08.2008 passed by the learned Addl. Sessions Judge, Talcher in NDPS Case No.1 of 2005.

Although in the present appeal, the prayer made by the appellant is not happily worded, but in nutshell, the appellant has challenged the order dated 28.08.2008 passed by the learned Addl. Sessions Judge, Talcher imposing the penalty amount of Rs.30,000/- in lieu of his failure to produce the principal accused for whom he stood as a surety for an amount of Rs.30,000/-.

The appeal is pending since 2010. The appeal has suffered about thirty eight adjournments. Therefore, though request for adjournment has been made by the learned counsel appearing for the appellant, but this Court is not inclined to adjourn the matter any further.

Learned counsel for the appellant has primarily attacked the impugned order dated 28.08.2008 passed by the learned Addl. Sessions Judge, Talcher on the ground that sufficient opportunity was not given, and except that, there is no explanation or show cause offered by him to justify the non-imposition of penalty. It is admitted on record that the accused persons have absconded, NBW issued against them could not be executed. Hence proceeding under sections 83 and 83 Cr.P.C. was initiated. Therefore, the appellant has no escape from the penalty. The learned court below has rightly penalized the appellant. The impugned order being justified under law and being not arbitrary, needs no interference.

In view of the aforementioned, the present appeal being devoid of merit deserves to be dismissed. Accordingly, the Criminal Appeal is dismissed.