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2016 DIGILAW 600 (ORI)

Srikanta Debata v. State of Orissa

2016-08-05

S.PUJAHARI

body2016
ORDER : Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner being in custody in Special Case No.116 of 2012, arising out of NALCO P.S. Case No.183 of 2012, pending in the court of the learned Judge, Special Court, Angul, 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 from the materials available on record that the petitioner along with four others said to be transporting 86 Kgs. 150 grams of 'Ganja' in two motor cars, i.e., one Indigo car and one Indica car to dispose of the same in Cuttack town. On their way, NALCO Chhak Main Gate, Seeing the police partrolling party, the present petitioner and others fled away from the spot and the driver of Indigo car and an occupant of the Indica car were apprehended. The police patrolling party recovered 'Ganja' of 86 Kgs. 150 grams from both the vehicles. The petitioner was arrested during course of investigation of the aforesaid case. 4. Learned counsel for the petitioner drawing notice of this Court to the materials available on record; so also Section 37(1)(b) of the N.D.P.S. Act, submits that in this case the only material that is available against the petitioner being confession of co-accused before the Police naming the petitioner to be one of the persons, which is no evidence in the eye of law, the petitioner deserves to be released on bail. He further submits that even if prima-facie case is there indicating the involvement of the petitioner, the petitioner also deserves to be released on bail, inasmuch as there is nothing on record indicating the fact that he shall commit any offence on his release on bail as he has no criminal antecedents and unless the twins conditions are satisfied, an accused is entitled to be released on bail, is the mandate of Section 37(b) of the NDPS Act. He further submits that the petitioner deserves to be released on bail on the ground of parity inasmuch as this Court had already released two co-accused persons, namely, Rinku Sahu and Ranjan Kumar Pradhan on bail vide orders dated 08.04.2013 and 19.06.2013 respectively passed in BLAPL Nos.743 of 2013 and 602 of 2013. He further submits that the petitioner deserves to be released on bail on the ground of parity inasmuch as this Court had already released two co-accused persons, namely, Rinku Sahu and Ranjan Kumar Pradhan on bail vide orders dated 08.04.2013 and 19.06.2013 respectively passed in BLAPL Nos.743 of 2013 and 602 of 2013. In support of his contentions, the learned counsel for the petitioner places reliance on a decision of this Court in the case of Abhaya Parichha vrs. State of Orissa, 2015 (Supp.-II) OLR 169 wherein it has been held as follows :- "xxxxx xxxxxxx Bail-Commercial quantity of Ganja found from the exclusive and conscious possession of the co-accused - Petitioner was charge sheeted under Section 20(b)(ii)(c)/25/29 of the N.D.P.S. Act -Impleaded in the case only on the confessional statement of the co-accused - No criminal antecedent - Considering the nature of accusation and absence of prima facie materials against the petitioner's involvement in the commission of offence and taking into account of his period of detention in judicial custody, bail, of the petitioner allowed. Xxxxxxxxx xxxxx xxxxxx" [Quoted from Placitum] So also, the learned counsel for the petitioner places reliance on a decision of the Kerala High Court in the case of Intelligence Officer, Narcotic Control Bureau, Sub Zone, Kakkanad, Kochi Vrs. Lijo K.Jose, 2016 CRI.L.J. 594, wherein in paragraph-14 it has been held as follows:- "14. Even though Section 37(1)(b)(ii) of the NDPS Act says that, the aforesaid two grounds arise for consideration only when the Prosecutor opposes the application, I am of the firm view that in appropriate cases, the said two grounds arise even when the Public Prosecutor does not oppose the application. The same is evident from Section 37(2) of the NDPS Act. As per Section 37(2) of the NDPS Act, the limitations contained in Section 37(1)(b) are in addition to the limitations under the Code of Criminal Procedure, 1973. Therefore, even when the Prosecutor does not oppose the petition, the Court is not bound to enlarge an accused on bail. The same is evident from Section 37(2) of the NDPS Act. As per Section 37(2) of the NDPS Act, the limitations contained in Section 37(1)(b) are in addition to the limitations under the Code of Criminal Procedure, 1973. Therefore, even when the Prosecutor does not oppose the petition, the Court is not bound to enlarge an accused on bail. Even when 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, if there are some other grounds, normally available to the Court to deny bail to an accused under the Cr.P.C., the Court is not expected to enlarge the accused on bail" 5. Learned counsel for the State, however, opposes the prayer for bail drawing notice of this Court to the materials on record indicating the fact that the petitioner along with others while transporting 'Ganja' of commercial quantity in two vehicles on being intercepted by the police on their way fled away from the spot and one of the co-accused being apprehended named the petitioner to be one of the culprits. Therefore, there being prima facie material indicating the fact that the petitioner is involved in an offence under Section 20(b)(ii)(C) of the NDPS Act, this Court should be loath in granting bail to him as it is difficult on the aforesaid fact to record a finding that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail and Section 37 of the NDPS Act prohibits to grant bail in case of this nature without recording the aforesaid findings, submits the learned counsel for the State. 6. Since the petitioner has been implicated in an offence under the N.D.P.S. Act for transporting 'Ganja' of commercial quantity and sought for bail in this case, it would be apposite to have a look to Section 37 of the N.D.P.S. Act as the same deals with the limitations prescribed with regard to grant of bail to a person indicted in an offence under Section 20(b)(ii)(C) of the NDPS Act. The said Section reads as thus; "37. The said Section reads as thus; "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 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, 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]" 7. A perusal of the aforesaid section would go to show that Court while addressing the bail application of a person accused of the offences mention in Section 37(1)(b) of the N.D.P.S. Act, the Court 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 any offence if allowed to go on bail. Any offence has been held by the Apex Court to be an offence of similar nature. The aforesaid limitation and in addition to the limitations provided for grant of bail in the Cr.P.C. as well as in any other law. 8. In the case of Niranjan Singh and another vrs. Any offence has been held by the Apex Court to be an offence of similar nature. The aforesaid limitation and in addition to the limitations provided for grant of bail in the Cr.P.C. as well as in any other law. 8. In the case of Niranjan Singh and another vrs. Prabhakar Sajram Kharote and others, AIR 1980 SC 785 , the 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 Sec. 436(1), Cr.P.C., subject to restrictions under Sec. 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...... ........ "9. So also in the case of State of Maharashtra vrs. Anand Chaintaman Digha, AIR 1990 SC 625 , the 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 Prahalad Singh Bhati vrs. NCT, Delhi, (2001) 4 SCC 280 , the Apex Court have held as follows; "8... ...... In the case of Prahalad Singh Bhati vrs. NCT, Delhi, (2001) 4 SCC 280 , the 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 the evidence establishing the guilt of the accused beyond reasonable doubt." 10. In the case of Narcotics Control Bureau vrs. Dilip Prahlad Namade, (2004) SCC 619, the 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 v. 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, and (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, and (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 NDPS 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." [Underlining by me] 11. On perusal of the materials on record, it would go to show that the police party had seen the petitioner to be fleeing away from the spot. The case is not one to which the exceptions provided in Section 37 can be applied." [Underlining by me] 11. On perusal of the materials on record, it would go to show that the police party had seen the petitioner to be fleeing away from the spot. Thereafter, one of the co-accused apprehended at the spot named the present petitioner to be one fleeing from the spot. Therefore, it cannot be said that the implication of the petitioner in this case is solely based on the confession of co-accused made before the police. Hence, prima facie materials are there indicating the fact that the petitioner to have been involved in the offence alleged. 12. It appears that 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 minimum imprisonment for ten years, which may extend to twenty years and minimum fine of rupees one lakh which may extend rupees two lakhs, which is stringent. 13. The contention of the learned counsel for the petitioner that in this case since the confession of the co-accused before the police is the only material, therefore, it cannot be said that the same is incriminating appears to this Court to be fallacious inasmuch as here in this case when the police intercepted both the. vehicles from which 'Ganja' of commercial quantity was seized and the petitioner and other occupants fled away from the spot and one of the occupants being apprehended, named the petitioner to be one fleeing from the spot. The counsel for the petitioner has not brought to the notice of this Court any materials are there on the record suggesting the fact that the petitioner was not involved in the offence or there is material to show his false implication in this case or materials collected do not attract the offence alleged. Basing on the available materials on record, being hard to record a satisfaction that there are reasonable grounds for believing that the accused was not guilty of the offence alleged and that the petitioner on his release is not likely to commit such offence inasmuch as he was involved in heinous and serious offence of trafficking 'Ganja' of commercial quantity and fled away from the spot. The learned counsel for the State has objected the prayer for bail. The petitioner, therefore, has no case for his release on bail in view of the mandate of Section 37(1)(b) of the N.D.P.S. Act and the law laid down by the Apex Court in the case of Narcotics Control Bureau (supra). 14. The decision in the case of Abhaya Parichha (supra), on which much reliance has been placed by the learned counsel for the petitioner, is of no assistance to the petitioner inasmuch as the facts of that case are quite distinguishable to the present facts situation. In that case this Court was not inclined to accept the confessional statement of the coaccused before the police to be an incriminating piece of evidence as the same was not recorded in writing and no corroborative material to lend such confession against the petitioner and the petitioner therein had no criminal antecedent and recording the twin satisfaction as required under Section 37 of the NDPS Act with regard to the petitioner's prima facie innocency and ruling out his propensity of committing any offence, if released on bail, granted bail to the petitioner indicted in an offence under Section 20(b)(ii)(C) of the N.D.P.S. Act. But, in the case at hand, as stated earlier, sufficient materials are there indicating the involvement of the petitioner in the aforesaid case, and the manner in which the same was committed, the petitioner committing the offence of similar nature on his release on bail, is not ruled out. Furthermore, the contention of the petitioner that since, no material is there indicating the fact that the petitioner has any criminal antecedent, as such, he is likely to commit such offence as held by this Court in the case of Abhaya Parichha (supra), hence one of twin conditions being fulfilled, the petitioner deserves to be released on bail in view of the mandate of Section 37(1)(b) of the NDPS Act. The aforesaid contention is fallacious as it is the clear mandate of Section 37(1)(b) of the NDPS Act to grant bail on the fulfillment of the twin conditions, which is also the interpretation given to the same by the Apex Court in the case of Narcotics Control Bureau (supra), so also this Court in the case of Abhaya Parichha (supra) did not held the aforesaid. Furthermore, recording satisfaction with regard to commission of similar offence on release on bail depends upon the peculiar facts and circumstances of that case and, as such, the contention advanced with regard to placing reliance on Abhaya Parichha's case (supra), appears to this Court to be untenable. The decision of the Kerala High Court in the case of Intelligence Officer, Narcotic Control Bureau, Sub Zone, Kakkanad, Kochi (supra), relevant portion of which is quoted supra, on which much reliance has also been placed by the learned counsel for the petitioner, is of no assistance to the petitioner, rather the same militates against the grant of bail to the petitioner in this case. 15. Thus, considering the nature and gravity of the accusation, character of evidence and the stringent punishment provided and also the limitation 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 petitioner's prayer for bail is devoid of merit. 16. With regard to the contention of the learned counsel for the petitioner to release the petitioner on the ground of parity as this Court had already allowed the similarly situated co-accused persons, namely, Rinku Sahu and Ranjan Kumar Pradhan on bail vide orders dated 08.04.2013 and 19.06.2013 respectively passed in BLAPL Nos.743 of 2013 and 602 of 2013. For better appreciation of the contention advanced by the learned counsel for the petitioner, the orders passed in the aforesaid two bail applications are extracted hereunder; "BLAPL No.743 of 2013 Order No.7 dated 08.04.2013 Heard learned counsel for the petitioner and learned counsel for the State. Perused the case diary. Considering the nature of allegations made against the petitioner, I do not think it is a fit case for grant of anticipatory bail. However, it is directed that in the event the petitioner surrenders before the learned Judge, Special Court, Angul, in Special Case No.116 of 2012, arising out of NALCO P.S. Case No.183 of 2012 within four weeks hence and moves for bail, he shall be released on bail on such terms and conditions as the learned Magistrate may deem just and proper. BLAPL is accordingly disposed of. BLAPL is accordingly disposed of. Issue urgent certified copy as per rules. BLAPL No.602 of 2013 Order NO.6 dated 19.06.2013 This is an application for bail filed under Section 439 Cr.P.C. Heard learned counsel for the petitioner and learned counsel for the State. Perused the case diary. Considering the materials available on record, the prayer for bail is allowed. The petitioner be released on bail by the learned Judge, Special Court, Angul, in Special Case No.116 of 2012, arising out of NALCO P.S. Case no.183 of 2012 on such terms and conditions as the learned Court below may deem just and proper. BLAPL is accordingly disposed of. Issue urgent certified copy as per rules. It appears from the aforesaid orders that a Bench of this Court in exercise of its discretionary jurisdiction to grant pre-arrest bail/bail in the Code of Criminal Procedure taking note of the facts and situation in the case relating to the petitioner therein, has exercised its jurisdiction to grant bail as aforesaid to the petitioners. The petitioners therein are undisputedly co-accused of the present petitioner and similarly situated with the present petitioner. But, I humbly disagree with the contention advanced that the aforesaid orders enure to the benefit of the petitioner on the rule of parity inasmuch as, if I may be permitted to say so, in the aforesaid orders the mandate of law provided in Section 37 of the NDPS Act has not been addressed, more so, in view of the ratio laid down in the case of Narcotics Control Bureau (supra), so also a decision of this Court in the case of Sudam Karan vrs. State of Odisha, (2014) 58 OCR 747 wherein this Court has also taking note of the decisions in the cases of Narcotics Control Bureau (supra), Chander alias Chandra Chandra vrs. State of U.P., 1998 CRI.L.J. 2374 and Gopi @ Gopal Rout vrs. State of Orissa passed in BLAPL No. 983 of 2013 with regard to the application of the rule of parity in granting bail to the co-accused persons, refused to extend the benefit of rule of parity to the petitioner therein, in similar facts and situations. State of U.P., 1998 CRI.L.J. 2374 and Gopi @ Gopal Rout vrs. State of Orissa passed in BLAPL No. 983 of 2013 with regard to the application of the rule of parity in granting bail to the co-accused persons, refused to extend the benefit of rule of parity to the petitioner therein, in similar facts and situations. In the case of Chander alias Chandra (supra), 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. So also, a Bench of this Court taking note of the aforesaid decision of Allahabad High Court, in the case of Gopi @ Gopal Rout (supra) in paragraph-17, held as follows; "Keeping in mind the gravity of offence, 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 for granting bail to the petitioner on the ground of parity." 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. . Therefore, the same cannot form the basis for granting bail to the petitioner on the ground of parity." 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. . However, since the petitioner is stated to have been languishing in custody near about one year and the expeditious disposal of a case being a fundamental right of an accused guaranteed under Article 21 of the Constitution of India, the trial court shall do well to conclude the trial as expeditiously as possible preferably within a period of four months hence, if there is no other legal impediment. BLAPL dismissed.