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2014 DIGILAW 234 (ORI)

Sudam Karan v. State of Orissa

2014-04-07

S.PUJAHARI

body2014
JUDGMENT S. PUJAHARI, J. 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner being in custody in G.R. Case No. 847 of 2012, arising out of Baranga P.S. Case No. 59 of 2012, pending in the Court of the learned Special Judge-cum-Sessions Judge, Cuttack, has filed this petition for his release on bail. The offence alleged against the petitioner is punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act). 3. It appears that the learned Special Judge while rejecting the prayer for bail of the petitioner, has held that Section 37 of the N.D.P.S. Act prohibits to grant bail to the petitioner. 4. It is revealed from the materials collected during investigation of this case that the petitioner along with two others said to be transporting 45 Kgs. of Ganja in a TATA Magic vehicle to dispose of the same in Cuttack town. On their way, near Naraj, seeing the police patrolling party, they fled away leaving the vehicle with the Ganja. The police patrolling party recovered Ganja of 45 Kgs. from the vehicle and apprehended two of the traffickers of the said Ganja. But, the petitioner was arrested in execution of a Non-bailable warrant of arrest. 5. Learned counsel appearing for the petitioner submits that since the petitioner is an old man of aged about 60 years and there is no credible material against him showing his involvement in the offence alleged, he deserves to be released on bail, more so when there is nothing on record to suggest that he is likely to abscond or tamper with the prosecution evidence if allowed to go on bail and the co-accused persons similarly situated have been released on bail by this Court vide order dated 23.11.2012 in BLAPL No. 26414 of 2012. 6. Learned counsel for the State, however, opposes the prayer for bail advancing the submission that there being ample material on record to show that the petitioner along with other co-accused persons released on bail transporting the Ganja which is of commercial quantity, Section 37 of the N.D.P.S. Act prohibits to grant him bail. 7. Since the petitioner has been implicated in an offence under the N.D.P.S. Act for transporting Ganja of commercial quantity, it would be apposite to have a look. 7. Since the petitioner has been implicated in an offence under the N.D.P.S. Act for transporting Ganja of commercial quantity, it would be apposite to have a look. Section 37 of the N.D.P.S. Act as the same deals with the limitations prescribed with regard to grant of bail in addition to the limitations/factors to be considered while granting bail in any other offences. The said section reads as thus:- "37. Offences to be cognizable and non-bailable –– (1) Notwithstanding anything contained in the Code pf Criminal Procedure, 1973 (2 of 1974):- (a) Every offence punishable under this Act shall be cognizable. (b) No person accused of an offence punishable for (offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity) 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. (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 (2 of 1974) or any other law for the time being in force, on granting of bail. 8. A perusal of the aforesaid section would go to show that Court while addressing the bail application of a person accused of the offence under the N.D.P.S. Act as mentioned in Section 37(1) besides the limitations for grant of bail in Cr. P.C. and any other law with regard to grant of bail, must give an opportunity to the Public Prosecutor to object the prayer for bail and if he objects, should not grant bail without recording the satisfaction that there are reasonable ground for believing that the accused is not guilty of the offence alleged and not likely to commit the offence if allowed to go on bail. 9. Thus, Section 37 of the N.D.P.S. Act does not preclude the Special Judge to grant bail, but only puts certain rigour or limitation to grant bail, which is in addition to limitation to grant bail under the provisions of Cr. P.C. or any other law. 9. Thus, Section 37 of the N.D.P.S. Act does not preclude the Special Judge to grant bail, but only puts certain rigour or limitation to grant bail, which is in addition to limitation to grant bail under the provisions of Cr. P.C. or any other law. The Special Judge, therefore, appears to have passed the order to refuse bail in oblivion to the mandate of Section 37(1) of the N.D.P.S. Act. 10. In the case of Niranjan Singh and Another vs. Prabhakar Sajram Kharote and Others, AIR 1980 SC 785 , the Hon'ble Apex Court while dealing with the law of bails have held as follows:- "The law of bails, like any other branch of law, has its own philosophy and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict the liberty of a man who is alleged to have committed a crime and the presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt. The granting of bail in the case of a non-bailable offence is a concession allowed to an accused person. In the case of a bailable offence, bail can be obtained as of right under Section 436(1), Cr. P.C. subject to restrictions under Section 436(2). While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required." 11. So also in the case of State of Maharashtra vs. Anand Chintaman Digha, AIR 1990 SC 625 , the Hon'ble Apex Court have held that where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. In the case of Prahlad Singh Bhati vs. NCT of Delhi, (2001) 4 SCC 280 , the Hon'ble Apex Court have held as follows:- "8. In the case of Prahlad Singh Bhati vs. NCT of Delhi, (2001) 4 SCC 280 , the Hon'ble Apex Court have held as follows:- "8. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviours, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable ground for believing instead of the evidence which means the Court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have he evidence establishing the guilt of the accused beyond reasonable doubt." 12. In the case of Narcotics Control Bureau vs. Dilip Pralhad Namade, (2004) SCC 619, the Hon'ble Apex Court dealing with the provisions of Section 37 of the N.D.P.S. Act at paragraphs 9, 10, 11 and 12 have held as follows:- 9. As observed by this Court in Union of India vs. Thamisharasi clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are – (1) an opportunity to the Public Prosecutor to oppose the bail application, (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 10. The limitations on granting of bail come in only when the question of granting bail arises on merits. 10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent-accused is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression reasonable grounds means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessities of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when at large. In the case at hand the High Court seeks to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act. 11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the N.D.P.S. Act was not kept in view by the High Court. Mere non-compliance with the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37. 12. The circumstances under which the bail can be granted in the background of Section 37 have been indicated above. The case is not one to which the exceptions provided in Section 37 can be applied." 13. 12. The circumstances under which the bail can be granted in the background of Section 37 have been indicated above. The case is not one to which the exceptions provided in Section 37 can be applied." 13. In this case, strong incriminating materials have been collected against the petitioner during course of investigation disclosing that he was involved in the offence alleged, the accusation is serious in nature, and the quantum of punishment provided is imprisonment for twenty years and minimum fine of rupees one lakh which may extend rupees two lakhs, which is stringent. The counsel for the petitioner has not brought to the notice of this Court any material are there on the record suggesting the fact that the petitioner was not guilty of the offence or there is material to show his false implication in this case or materials collected do not attract the offence alleged. From the available material on record, it is hard to record a satisfaction that there are reasonable grounds for believing that the accused was not guilty of the offence alleged and he is not likely to commit such offence if released on bail. State counsel has objected the prayer for bail. Section 37(1) of the N.D.P.S. Act in such circumstances prohibits the grant of bail. 14. Thus, considering the nature and gravity of the accusation, character of evidence and the stringent punishment provided and also the statutory bar to grant bail under Section 37(1) of the N.D.P.S. Act in an offence of this nature without recording the satisfaction that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged or not likely to commit any offence, which is not possible to record in this case, the petitioners prayer for bail is devoid of merit. 15. With regard to the contention of the counsel to release the petitioner on the ground of parity as this Court has already allowed the similarly situated co-accused persons on bail vide the order passed in BLAPL No. 26414 of 2012, it is seen that the Court has not recorded the reasons as required under the statute when granted bail to the co-accused. In the case of Chander alias Chandra vs. State of Uttar Pradesh, 1998 Cri. In the case of Chander alias Chandra vs. State of Uttar Pradesh, 1998 Cri. L.J. 2374, a Bench of the Allahabad High Court has held that if the order granting bail to an accused is not supported by reasons, the same cannot form the basis for, granting bail to a co-accused on the ground of parity, so also a Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail. 16. A Bench of this Court, taking note of the aforesaid decision of Allahabad High Court, in the case of Gopi @ Gopal Rout vs. State of Orissa in BLAPL No. 893 of 2013 in paragraph 17 held as follows:- "Keeping in mind the gravity of offences, materials available on record and the above principles of law, now I have to consider the present petition for grant of bail. Undoubtedly, in the present case, accusations are of serious in nature. In a broad daylight, the petitioner along with other co-accused persons entered into the house of the informant on the pretext of courier agent. On the point of pistol and knives, they took the godrej almirah keys from the informant, committed dacoity and took away cash, gold and silver ornaments. The materials already on record are recovery of stolen property from the possession of the accused-petitioner and identification of the accused-petitioner in T.I. parade. The petitioner has criminal antecedents as he is involved in five other criminal cases. The order granting bail to the co-accused Kunia is not supported by any reasons. Therefore, the same cannot form the basis of granting bail to the petitioner on the ground of parity. Thus, the petitioner's prayer for bail on the ground of parity is also devoid of merit. 17. For the reasons stated above, the prayer for bail of the petitioner is devoid of merit and stands rejected. Accordingly, the BLAPL stands disposed of being dismissed. BLAPL disposed of.