Orissa High Court
Chitrasena Mallick vs State Of Odisha on 5 April, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.705 of 2018
Chitrasena Mallick .... Appellant/
Petitioner
Mr.M.K. Pati, Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr.Rajesh Tripathy,
Addl.Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 04.04.2023
I.A. No.425 of 2023
15. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Heard learned counsel for the appellant-petitioner and learned counsel for the State.
This interim application has been filed by the appellant-petitioner under section 389 Cr.P.C. for grant of bail.
The appellant-petitioner Chitrasena Mallick has been convicted for the offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act 1985 and sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo // 2 // R.I. for a period of one year by the learned Addl. Sessions Judge, Balliguda, Kandhamal in 2(a) C.C. Case No.22 of 2016 (T).
Learned counsel for the petitioner submitted that the petitioner was taken into judicial custody on 19.10.2016 and except interim bail for about one month, he is all along in judicial custody and therefore, out of ten years of substantive sentence imposed by the learned trial Court, he has already undergone substantive sentence of more than six years and three months. He further argued that the bail application of the petitioner on merit was rejected for the first time in I.A. No.1723 of 2019 as per order dated 02.08.2019 and for the second time in I.A. No.2031 of 2019 as per order dated 08.07.2021 mainly taking into account the bar under section 37 of the N.D.P.S. Act. Learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain -Vrs.- State (NCT of Delhi) reported in 2013 LiveLaw (SC) 260 and contended that in spite of the bar under section 37 of the N.D.P.S. Act, since the petitioner is in judicial custody for more than six years and three months and there is no likelihood of the appeal being taken up for hearing, even though paper book has been prepared therefore, the bail application may be favourably considered.
Learned counsel for the State, on the other hand, submitted that the ratio laid down in the case of Mohd Page 2 of 10 // 3 // Muslim @ Hussain (supra) is not applicable to the petitioner in the case in hand and he placed reliance on the case of State (NCT of Delhi) Narcotics Control Bureau -Vrs.- Lokesh Chadha reported in (2021) 5 Supreme Court Cases 724.
In the case of Mohd Muslim @ Hussain (supra), it appears that during trial of the case, the bail application came to be considered by the Hon'ble Supreme Court and it was found that the said accused was in judicial custody since 03.10.2015 i.e. for more than seven years and four months. The Hon'ble Supreme Court also took into account that the recovery of ganja was made from four accused persons including Nitesh Ekka and the accused Mohd Muslim @ Hussain was arrested at the behest, and on the statement of the co-accused Nitesh Ekka and the Court further found that money has been transferred to the account of the accused Mohd Muslim @ Hussain and further taking into account the progress of the trial at a snail's pace i.e. thirty witnesses have been examined, whereas thirty-four more have to be examined and accordingly, the Court held as follows:-
"18. The conditions which courts have to be cognizant of are 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. What is meant by "not guilty" when all the evidence is Page 3 of 10 // 4 // not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice:
even in serious offences like murder, kidnapping, rape, etc. On the other hand, the Page 4 of 10 // 5 // court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to in cases when accused of offences enacted under special laws be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court Should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well.
Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima face look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
Page 5 of 10// 6 //
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik).
Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
In case of Lokesh Chadha (supra), the Hon'ble Supreme Court where the Court was dealing with the power of the appellate Court to grant bail under section 389(1) Cr.P.C. in case of an accused convicted under section 23(c) and 25A of the N.D.P.S. Act, relied upon the decision of a two-Judge Bench of the Hon'ble Supreme Court in Preet Pal Singh -Vrs.- State of Uttar Pradesh Page 6 of 10 // 7 // reported in (2020) 8 Supreme Court Cases 645 and held as follows:-
"10. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh -Vrs.- State of U.P. where Indira Banerjee, J. speaking for the Court, observed as follows:
"35. There is a difference between grant of bail under Section 439 Cr.P.C. in case of pre-trial arrest and suspension of sentence under Section 389 and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of UP. However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima face Page 7 of 10 // 8 // merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail. notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC."
The Hon'ble Supreme Court accordingly held in the case of Lokesh Chadha (supra) as follows:-
"11. The principles which must guide the grant of bail in a case under the N.D.P.S. Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v. Rajesh (2020) 12 S.C.C. 122. The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the N.D.P.S. Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) Cr.P.C. was established. The order granting suspension of sentence under Section 389(1) Cr.P.C. is unsustainable and would accordingly have to be set aside."
Taking into account the ratio laid down by the Page 8 of 10 // 9 // Hon'ble Supreme Court in the aforesaid cases, I am of the view that the ratio laid down in the case of Lokesh Chadha (supra) would be applicable in the case in hand as it is a post-conviction bail matter. Since the bail application of the petitioner has already been rejected twice on merit and in view of the bar under section 37 of the N.D.P.S. Act, while not inclining to release the petitioner on bail on merit, but taking into account the fact that he is in judicial custody for more than six years and three months out of ten years of substantive sentence imposed by the learned trial Court and he is a local man from village Jidingapanga under Balliguda Police Station, Dist.-Kandhamal and the learned State Counsel has failed to point out any criminal antecedent against the petitioner and even though paper book is ready and there is no likelihood of early hearing of the appeal in the near future, I am inclined to release him on interim bail for a period of three months from the date of release. The petitioner shall immediately surrender before the learned Court below on expiry of the said three months period.
For the above period, let the petitioner be released on interim bail to the satisfaction of the learned trial Court in connection with the aforesaid case on furnishing bail bond of Rs.1,00,000/-(rupees one lakh) each with two local solvent sureties each for the like amount to the satisfaction of the concerned Court including the Page 9 of 10 // 10 // conditions that he shall not indulge in any criminal activities. Violation of any of the conditions shall entail cancellation of bail.
The I.A. is disposed of accordingly.
( S.K. Sahoo) Judge I.A. No.1724 of 2018
16. This is an application for stay of realization of fine.
Heard.
There shall be stay of realization of fine amount imposed on the appellant-petitioner pursuant to the judgment dated 27.08.2018 passed by the learned Addl. Sessions Judge, Balliguda, Kandhamal in 2(a) C.C. Case No.22 of 2016 (T) pending disposal of the criminal appeal.
The I.A. is disposed of.
( S.K. Sahoo) Judge CRLA No.705 of 2018
17. The matter be added to the hearing list immediately after the ensuing summer vacation.
( S.K. Sahoo) Judge Sipun Page 10 of 10