Saroj Bag vs State of Orissa

L. Mohapatra, J.—The Petitioner has moved this Court for the fourth time u/s 439, Code of Criminal Procedure for grant of bail. Earlier, the prayer of the Petitioner for bail was rejected in Criminal Misc. Case No. 1732 of 2001 vide order dated 14.4.2001, Criminal Misc. Case No. 7156 of 2001 disposed of on 19.9.2002 and Criminal Misc. Case No. 3397 of 2002 disposed of on 12.9.2002.

From the record it appears that Bargarh P.S. Case No. 1 08 dated 26.6.2000 has been registered for commission of offence u/s 20(b) of the N.D.P.S. Act. It further appears that on 26.6.2000 at about 4.30 A.M. a Tata Sumo vehicle was coming from Haladipali square and crossed the toll gate on National Highway No. 6 on the wrong side at a very high speed. The Police Officers who were on patrol duty smelt of Ganja and dettol and on suspicion they stopped the vehicle in front of a private bus stand and found the present Petitioner was driving the vehicle and another person was sitting inside the vehicle. On search in presence of the Executive Magistrate, Ganja weighing 181 kg. 300 grams kept in 78 packets were found stored in the vehicle and the same was seized. Accordingly, the case was registered u/s 20(b) of the N.D.P.S. Act and the Petitioner was taken to custody. On all earlier occasions the prayer of the Petitioner was rejected on merits. The present application has been filed on the basis of a decision of the Apex Court in the case of Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India and Ors. reported in 1994 CAR 364.

Shri B.P. Ray, the Learned Counsel appearing for the Petitioner submitted that the Petitioner was apprehended in connection with the said case on 27.6.2000 and more than two and half years having passed in the meantime, he has served sentence as an under trial prisoner for more than half of the period of punishment of imprisonment and accordingly he is entitled to bail as per direction of the Apex Court in the aforesaid case. Referring to Section 41 of the N.D.P.S. (Amendment) Act, 2001, the Learned Counsel further submitted that though the quantity of Ganja seized comes within the category of commercial quantity, the offence having been committed prior to amendment, the maximum punishment prescribed for commission of offence was five years on the date of commission of offence. On such basis, the Learned Counsel submitted that the Petitioner having spent more that half of-the sentence prescribed in the statute for the offence, he is entitled to bail on conditions as per the guidelines given in the Apex Court judgment.

There is not dispute that the Petitioner was the driver of the vehicle which was carrying 181 kg. 300 grams of Ganja kept in 78 packets and accordingly the case has been registered for commission of offence u/s 20(b) N.D. P.S. Act. There is also no dispute that the Petitioner has spent more than two and half years as an under trial prisoner. The question that arises for consideration is whether in the facts of this case the guidelines given by the Apex Court in the judgment referred to above are applicable.

On a careful perusal of the judgment, it appears that the petition was moved under Article 32 of the Constitution of India by the Supreme Court Legal Aid Society complaining delay in disposal of cases under the N.D.P.S. Act involving foreigners. The reliefs claimed in the petition included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for period exceeding two years, as void or in any case they be released on bail and it was further submitted by the counsel that their case be given priority over others. The Apex Court observed that no distinction can be made between foreigners and Indian nationals so far as the offence and the delay in trial is concerned. Accordingly, the petition was amended and the Apex Court on consideration of the entire material available before it directed that where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the concerned Special Judge with two sureties for like amount. Relying on the aforesaid direction of the Apex Court, Shri Ray submitted that on the date of commission of the offence the maximum punishment of imprisonment prescribed in the statute was five years and, therefore, the Petitioner having remained as undertrial prisoner for more than two and half years, he is entitled to bail. On reading of the entire judgment, it appears that the Apex Court considered the situation in the State of Maharashtra and after obtaining all the information about the number of cases pending and availability of Special Courts has observed and directed release of undertrial prisoners on fulfilling the terms and conditions mentioned in the judgment. The above observation given support from the judgment of the Apex Court as observed in paragraph-16 of the judgment.

We dispose of the petition insofar as it relates to the State of Maharashtra. But we are told that the situation is equally grave, with varying degrees, in certain other States like the States of Andhra Pradesh, Assam, Kerala, Karnataka, Gujrat, Orissa, Bihar, West Bengal, Uttar Pradesh and Madhya Pradesh. We direct notices to these States through their Chief Secretaries to furnish information in the proforma appended hereto to enable this Court to decide if similar action is called for. The information must be furnished within 4 weeks duly verified to be correct by an officer of the concerned Department not below the rank of a Deputy Secretary.

Since the disposal of the petition relates to the State of Maharashtra only and the Apex Court also wanted information from other States, lam of the view that the directions contained in the said judgment will not apply to the facts of the present case. Moreover, from the order dated 31.1.2003 passed by the learned Judge, Special Court, Bargarh rejecting the prayer of the Petitioner for bail, it appears that at one point of time some of the accused persons were absconding and the case had been split up against the absconding accused persons. Now, all the accused persons have been apprehended an the case has been posted for framing of charge. In view of the above, I do not think that there will be any delay in conclusion of the trial. However, since the Petitioner has already remained in custody for more than two and half years, I dispose of the application directing the learned Judge, Special Court, Bargarh to conclude the trial as early as possible, preferably within a period of six months from the date of communication of this order.