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2016 DIGILAW 532 (ORI)

SUMIT KUMAR BEHERA v. STATE OF ORISSA

2016-07-19

S.K.SAHOO

body2016
ORDER S.K. Sahoo, J. - Misc. Case No. 1190 of 2013 and Misc. Case No. 349 of 2016 are the applications under Section 389 Cr. P.C. (filed by appellant No.1 Sumit Kumar Behera and appellant No.2 Babu Gouda respectively for bail. Both the appellants faced trial in the Court of learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2 (a) C.C Case No. 02 of 2011(N) for offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter "N.D.P.S. Act"). The learned Trial Court vide impugned judgment and order dated 23.08.2013 found the appellants guilty of the offence charged and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 1,00,000/- (rupees one lakh) each, in default, to undergo further rigorous imprisonment for a period of two years each. 2. Mr. S.S. Ray-2, the learned counsel for the appellants contended that the appellants are in custody since 18.02.2011 and in the meantime they have already undergone more than half of the substantive sentence imposed by the learned Trial Court and there is no chance of early hearing of the appeal in the near future and therefore, in spite of the bar under section 37 of the N.D.P.S. Act, they are entitled to be released on bail during pendency of the appeal. The learned counsel for the appellants relied upon the decisions rendered in Cases of Dadu @ Tulsidas v. State of Maharashtra reported in (2001) 20 OCR (SC) 52, Mansingh v. Union of India reported in (2006) 1 SCC (Criminal) 279, Supreme Court Legal Aid Committee v. Union of India reported in (1994) 6 Supreme Court Cases 731, Thana Singh v. Central Bureau of Narcotics reported in (2013) 54 OCR (SC) 841, Tofan Singh v. State of Tamil Nadu reported in (2013) 56 OCR (SC) 916, Rajesh Bhalla v. State (NCT of Delhi) reported in 2011 Criminal Law Journal 2549 and Santosh Kumar Gupta v. Union of India reported in 2012 Criminal Law Journal 566. Mr. Anil Kumar Nayak, learned Addl. Standing Counsel on the other hand contended that even though the appellants have already undergone more than half of the substantive sentence imposed by the learned Trial Court, unless they overcome the bar under Section 37 of the N.D.R.S. Act, they are not entitled to be released on bail during pendency of the appeal. Mr. Anil Kumar Nayak, learned Addl. Standing Counsel on the other hand contended that even though the appellants have already undergone more than half of the substantive sentence imposed by the learned Trial Court, unless they overcome the bar under Section 37 of the N.D.R.S. Act, they are not entitled to be released on bail during pendency of the appeal. In support of such contention, learned counsel for the State relied upon the decisions rendered in cases of Union of India v. Rattan Mallik @ Habul reported in (2009) 42 OCR 697 and Ratan Kumar Vishwas v. State of Uttar Pradesh reported in (2009) 1 Supreme Court Cases 482. 3. Before delving upon the points raised by the learned counsels for the respective parties in support and in oppose of the applications for bail of the appellants during pendency of the appeal, though it is unnecessary to advert to the facts of the case against the appellants in greater detail but a little factual narration of the prosecution case would be relevant for better adjudication. It is the prosecution case that on 18.02.2011 Sub-Inspector of Excise (P.W.4) along with others had been to Digapahandi-Luhagudi State Highway receiving reliable information regarding transportation of ganja and around 7 a.m. while performing patrolling duty at Pudamari area, they found one Ambassador Car bearing Registration No. OR-02-AE-0200 coming towards Digapahandi. The vehicle was detained and it was found that appellant No.2 Babu Gauda was driving the car and appellant No.1 Sumit Kumar Behera was sitting in the car. On the rear seat of the car, jerry bags were found loaded and after necessary formalities, P.W.4 searched those jerry bags and found those containing ganja which weighed to be 300 kgs. which were sealed after weighment. The samples collected were sent for chemical analysis which confirmed it to be ganja (cannabis). The learned Trial Court held that the submission of the learned defence counsel with regard to non-compliance of Section 42(2) of the N.D.P.S. Act was not acceptable. It was further held that the submission of the learned counsel for the defence that there remains serious discrepancy with regard to the place where the car was searched i.e. the spot and so also as regards the other actions following thereafter said to have been made by P.W.4 was not acceptable. It was further held that the submission of the learned counsel for the defence that there remains serious discrepancy with regard to the place where the car was searched i.e. the spot and so also as regards the other actions following thereafter said to have been made by P.W.4 was not acceptable. The learned Trial Court further held that the evidence of the prosecution is wholly acceptable that 300 kgs. of ganja have been recovered from the Ambassador Car which was in occupation of the appellants who have been specifically identified by P.W. 3 and P.W. 4 in the Court and P.W. 4 specifically identified appellant no. 2 Babu Gouda as the driver. It was further held that the prosecution case regarding search, recovery and seizure of ganja from the conscious possession of the appellants from their physical custody stands established beyond reasonable doubt and accordingly, the learned Trial Court held the appellants guilty of the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act. 4. Section 37 of the N.D.P.S. Act reads as follows : 37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of 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 27-A and also for offences involving commercial quantity) shall be released on bail or on his own bond unless- (1) 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 (2 of 1974), or any other law for the time being in force, on granting of bail. Section 389 of the Code empowers an Appellate Court to suspend the sentence pending the appeal and release the appellant on bail. Section 389 of the Code empowers an Appellate Court to suspend the sentence pending the appeal and release the appellant on bail. Section 32-A of the N.D.P.S. Act in so far as it completely debars the Appellate Court from the power to suspend the sentence awarded to a convict under the Act was held to be unconstitutional in case of Dadu @ Tulsidas v. State of Maharashtra reported in (2001) 20 OCR (SC) 52 and it was further held that a sentence awarded under the Act can be suspended by the Appellate Court only and strictly subject to the conditions spelt out in Section 37 of the N.D.P.S. Act. In case of State of Uttaranchal v. Rajesh Kumar Gupta reported in (2007) 36 OCR 92 (para 27), it is held that Section 37 of the 1985 Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes. While dealing with an application for bail in connection with prosecution/conviction of offence(s) under a special statute, specific provisions contained in that statute for dealing with bail matters cannot be ignored. In this case, the appellants have been convicted and sentenced for commission of offence under Section 20(b)(ii)(C) of the N.D.P.S. Act and therefore, while dealing with their applications for grant of bail, in addition to the broad principles regarding 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, the relevant provision under section 37 of the N.D.P.S. Act has to be kept in view. In case of Union of India v. Rattan Mallik @ Habul reported in (2009) 42 OCR 697, it is held as follows : "13. It is plain from a bare reading of the non-obstante clause in the Section 37 of the N.D.P.S. Act and Sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the N.D.P.S. Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of Sub-section (1) of Section 37 of the N.D.P.S. Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that 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" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. (Vide Union of India v. Shiv Shanker Kesari : (2007) 7 Supreme Court Cases 798). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the N.D.P.S. Act. 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the N.D.P.S. Act, the Court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the-evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the N.D.P.S. Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail." In Rattan Mallick's case (supra) case where the Allahabad High Court granted bail to the appellant convicted under Sections 27-A and 29 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years on each count and to pay a fine of rupees one lakh on each count with default stipulation, on the ground of his incarceration for three years and that there was no chance of his appeal being heard within a period of seven years, the Hon'ble Supreme Court held that those circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of Sub-section (1) of Section 37 of the N.D.P.S. Act. The Hon'ble Supreme Court further held that the provisions of the N.D.P.S. Act and more particularly Section 37 of the N.D.P.S. Act were not brought to the notice of the learned Judge and therefore, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the N.D.P.S. Act was held to be not sustainable. In Case of Ratan Kumar Vishwas v. State of Uttar Pradesh reported in (2009) 1 Supreme Court Cases 482, where the Judgment of Allahabad High Court dismissing the application filed by the appellant for suspension of sentence and grant of bail was challenged, it is held as follows : "18. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted. XXX 20. The High Court has dealt with the factual position in great detail to conclude that the parameters of section 37 are not fulfilled to warrant grant of bail by suspension of sentence. We find no reason to interfere in the matter." Reliance was placed by the learned counsel for the appellants in the case of Mansingh v. Union of India reported in (2006) 1 Supreme Court Cases (Criminal) 279 wherein considering the fact that out of ten years of rigorous imprisonment for conviction under N.D.P.S. Act, the appellant had already undergone seven years of imprisonment and taking note of the submission raised by the learned counsel for the appellant that there is no likelihood of the appeal being heard in the near future, bail was granted by the Hon'ble Supreme Court. This decision has not dealt with the provision of Section 37 of the N.D.P.S. Act. Reliance was further placed by the learned counsel for the appellants in the case of Supreme Court Legal Aid Committee v. Union of India reported in (1994) 6 Supreme Court Cases 731 wherein it was held as follows : "15 We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned Counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us....We, therefore, direct as under: (i) 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. (ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs. 50,000 with two sureties for like amount. (iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment often years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount. (iv) Where an undertriai accused is charged for the commission of an offence punishable under Sections 31 and 31A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. Supreme Court Legal Aid Committee's case (supra) deals with the cases of undertrial accused and not an accused who has already been convicted by the Trial Court and his appeal is pending for adjudication. Supreme Court Legal Aid Committee's case (supra) deals with the cases of undertrial accused and not an accused who has already been convicted by the Trial Court and his appeal is pending for adjudication. Reliance was further placed by the learned counsel for the appellants in the case of Thana Singh v. Central Bureau of Narcotics reported in (2013) 54 OCR (SC) 841 where an accused who had been languishing in prison for more than twelve years, awaiting commencement of his trial for an offence under the N.D.P.S. Act was dealt with and certain directions and guidelines were laid down for due observance by all concerned invoking power under Article 141 of the Constitution of India. Reliance was further placed by the learned counsel for the appellants in the case of Tofan Singh v. State of Tamil Nadu reported in (2013) 56 OCR (SC) 916 where the appellant was convicted for the offences under the sections 8(c) read with Section 21 (c) of the N.D.P.S. Act and sentenced to undergo ten years rigorous imprisonment and to pay a fine of rupees one lakh with default sentence. The Hon'ble Supreme Court referred the matter to the larger Bench to decide whether the statement recorded by the Investigating Officer under Section 67 of the N.D.P.S. Act can be treated as confessional statement or not, even if the officer is not treated as Police Officer inasmuch as it is intermixed with a facet of the first issue as to whether such a statement is to be treated as statement under section 161 of the Code or it partakes the character of statement under Section 164 of the Code. The Hon'ble Supreme Court granted bail to the appellant as he had already undergone more than nine years of sentence out of the sentence of ten years awarded by the Trial Court. Reliance was further placed by the learned counsel for the appellants in the case of Rajesh Bhalla v. State (NCT of Delhi) reported in 2011 Criminal Law Journal 2549 where the appellant was found guilty for the commission of the offence under Section 27-A of the N.D.P.S. Act and sentenced to undergo ten years rigorous imprisonment and to pay a fine of rupees one lakh with default sentence. It was held that the Court has to be satisfied not only on the broad principles of law laid down for grant of suspension of sentence but also of the parameters provided for under Section 37(1)(b)(ii) of the N.D.P.S. Act. The satisfaction that needs to be recorded at this stage is of "reasonable grounds" and whether such grounds exist to grant suspension of sentence to the appellant. It was further held that a roving inquiry of the evidence relied on by the Trial Court is not required at this stage. The Appellate Court needs only to satisfy itself that prima facie there exist grounds because of which the appeal, when heard, may result in a decision favourable to the appellant. The learned Judge taking note of the submission raised by the learned counsel for the appellant that the only piece of evidence on the record, to connect the appellant with the offence is the disclosure statement of co-accused and that the appellant did not misuse the liberty granted to him while on bail during course of the trial and that the appellant had served few months short of half of his term of sentence and keeping in mind his age as well as his ailments and that he was the father of a marriageable daughter and there was nobody in the family to take care of the daughter, granted him bail with conditions. Reliance was further placed by the learned counsel for the appellants in the case of Santosh Kumar Gupta v. Union of India reported in 2012 Criminal Law Journal 566 wherein Hon'ble Justice Vinod Prasad of Allahabad High Court (as His Lordships then was) granted bail to the appellants who have been convicted for the offences under Sections 20, 23 and 29 of the N.D.P.S. Act for possessing commercial quantity of cannabis (charas) taking note of the fact that out of the maximum period of sentence of ten years R.I., the appellants had remained in jail for more than five and half years and also taking note of the facts and evidences tendered during trial, granted bail. There is no discussion regarding the provision under Section 37 of the N.D.P.S. Act. 5. There is no discussion regarding the provision under Section 37 of the N.D.P.S. Act. 5. In view of the above discussions, I am of the view that the High Court even under its appellate jurisdiction under Section 389 of the Code of Criminal Procedure must follow the provision of Section 37 of the N.D.P.S. Act while considering the application for bail as such provision is mandatory in nature and grant of bail is controlled by such provision which has an overriding effect over other provision of the Code. Obviously the limitations imposed by Sub-clauses (i) and (ii) of Clause (b) of Sub-section (1) of Section 37 of the N.D.P.S. Act would come into play only when the appellant has been convicted under Sections 19 or 24 or 27-A of the N.D.P.S. Act or when the offence committed involves commercial quantity. Since the appellants have been convicted for possessing ?commercial quantity' of ganja, merely because they have already undergone more than half of the substantive sentence imposed on them by the learned Trial Court, without considering the bar under Section 37 of the N.D.P.S. Act, they cannot be released on bail during pendency of the appeal. The incarceration for half of the substantive sentence can be one of the grounds for grant of bail during pendency of the appeal but cannot be the sole criteria for releasing the appellants on bail. 6. On going through the impugned judgment and order of conviction, apparently it cannot be said at this stage that there are reasonable grounds for believing that the appellants are not guilty of the offence charged or in view of any glaring infirmities, the impugned judgment and order of conviction on the face of it is not sustainable in the eye of law. Since the learned counsel for the appellants did not address the Court on chances of success of the appellants in the appeal nor placed any evidence. I have scanned the judgment only for a limited purpose to decide the question of releasing the appellants on bail and not weighed the evidence meticulously to arrive at a positive finding regarding sustainability of the judgment. It is needless to say that at the stage of final hearing of the appeal, there will be meticulous examination of the evidence on record. It is needless to say that at the stage of final hearing of the appeal, there will be meticulous examination of the evidence on record. Since twin conditions as provided under Section 37 of the N.D.P.S. Act are required to be cumulatively satisfied for grant of bail and the learned counsel for the appellants has failed to satisfy on the first condition itself, it is not at all required to discuss about the second condition. In the result, the bail applications filed by the appellants being devoid of merits, stand rejected. 7. Taking into account the period of incarceration of the appellants, I consider that expeditious hearing of this appeal is desirable. Accordingly, the office is directed to prepare the paper books at an earliest and list the appeal for final hearing before the appropriate Bench immediately after Dussehra Vacation.