Siba Pradhan vs State Of Odisha

V. Narasingh, J.

Heard Mr. S. Panda, learned counsel for the petitioner and Mr. Pradhan, learned Additional Standing Counsel for the State.

The petitioner is an accused in connection with Special (NDPS) Case No.117 of 2019, pending in the file of learned Additional District & Sessions Judge-cum-Special Judge, Kantamal, arising out of Kantamal P.S. Case No.77 of 2019 for alleged commission of offences under Sections 20(b)(ii)(C) of the NDPS Act.

Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Additional Sessions Judge-cum-Spl. Judge, Kantamal by order dated 21.04.2023 in the aforementioned case, the present BLAPL has been filed.

Perused the report dated 11.08.2023, submitted by the learned Additional Sessions Judge-cum-Spl. Judge, Kantamal, in which it has been indicated that out of 24 charge sheeted witnesses, 09 witnesses including informant have been examined and in the earlier communication submitted to this Court, it was stated that “Most of the remaining witnesses are official witnesses. They are not turning up in spite of repeated messages/summons which is causing delay in trial.”

It is the admitted case of the prosecution that the contraband (ganja) to the tune of 102 kg 950 grams was seized on 31.03.2019 from a house. The petitioner was allegedly seen running away from the spot and he was later on arrested on 28.06.2020.

It is stated by the learned counsel for the petitioner that conscious and exclusive possession cannot be attributed to the petitioner so as to warrant his further continuance in custody which, according to him is punitive.

Learned counsel for the State opposes the prayer and submits that the conduct of the petitioner is a relevant factor to be considered in allegations of this nature. He also relies on the statutory prescription under Section 37 of the NDPS Act to resist the prayer for bail.

As rightly stated by the learned counsel for the State, Mr. Pradhan that the bail in a case under the Special Act is an exception whereas negation is the rule (Ref: State of Madhya Pradesh vs. Kajad: (2001) 7 Supreme Court Cases 673). Paragraph-5 of the judgment in the case of Kajad (Supra) is extracted herein under;

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Section 37 of the Act provides that the offences under the Act shall be cognizable and non-bailable. It reads:

“37. Offences to be cognizable and non bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail”

The purpose for which the Act was enacted and the menace of drug trafficking which it intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.

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But at the same time, this Court cannot be oblivious to the rights of an accused to speedy trial which is a facet of Article 21 of the Constitution of India. This Court has already noted the reason which has been stated by the learned Special Judge for procrastination of trial.

Learned counsel for the petitioner relies on the order of the Apex Court dated 13.07.2023 in SLP Appeal (Crl.) No(s).4169 of 2023 wherein, the Apex Court balancing the rights guaranteed under Article 21 of the Constitution and statutory prescription of the NDPS Act stated thus;

“……………. the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

It is the further submission of the learned counsel that the petitioner is the first offender and since his home and hearth is within the jurisdiction of the learned Court in seisin, there is no chance of his absconding. As he is in custody for more than three years and trial is lingering because of apathy of the State, he may be released on bail.

On a conspectus of materials on record and keeping in view the reasons for delay, which has been extracted herein above and order of the Apex Court, this Court directs the petitioner to be released on bail on such terms to be fixed by the learned Court in seisin to ensure his presence on each date of trial subject to verification of criminal antecedent.

If it comes to fore that the petitioner has any criminal antecedent, this order shall stand recalled.

Additionally, it is directed that the petitioner 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 BLAPL stands disposed of.

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