Orissa High Court
Pritam Manohar Pardeshi & Ors vs State Of Odisha. .... Opp. Party on 5 October, 2021
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.552 of 2021
Pritam Manohar Pardeshi & Ors. .... Petitioners
Mr. Jugala Kishore Panda,
Adv.
-versus-
State of Odisha. .... Opp. Party
Mr. Karunakar Gaya, ASC
CORAM:
JUSTICE S.K. PANIGRAHI
ORDER
05.10.2021 Order No.
01. 1. This matter is taken up through hybrid mode.
2. The Petitioners have filed this application under Section 482 of the Cr.P.C., 1973 challenging the order dated 01.03.2021 passed by the learned Sessions Judge-cum-Special Judge, Malkangiri wherein the period of detention of the Petitioners for a period of 60 days beyond the stipulated period of 180 days has been extended.
3. The case of the prosecution in short is that on 31.08.2020 at about 10.30 P.M., the Sub-Inspector of Police, Kalimela Police, Kalimela, in the district of Malkangiri while performing night patrolling duty and night playing vehicle checking duty at Kalimela, got information from a reliable source that one car entered into Chintalwada area for loading and transporting of Ganja on arrival at Chintalwada weekly Page 1 of 6 // 2 // market and found 6 persons were loading something in a car. On suspicion, the police asked them about the loaded bags, but they confessed that they were loading Ganja in the vehicle for transporting the same outside the State. It is further alleged that the accused persons have engaged these people for smuggling the Ganja. It is also alleged that the accused persons were in exclusive and conscious possession of Ganja. Subsequently, the Sub-Inspector of Police, Kalimela informed to the Officer-In- Charge, Kalimela Police Station over phone about the detention of the said Ganja. The Sub-Inspector of Police, Kalimela directed the Constable Samir Biswas to bring the weighing machine of Kalimela Police Station issued by Reserve Office, Malkangiri with his personal laptop, portable generator, printer, packing and sealing kits, poly pack and other necessary articles. On weighment it came to 255 Kg. 200 gms. Of Ganja.
4. Based on the aforesaid report lodged by the Informant Panchanan Behera, the Sub-Inspector of Police, Kalimela Police Station registered a case bearing Kalimela P.S. Case No.107 of 2020 which is corresponding to T.R. Case No.89 of 2020 for commission of offence punishable under Sections 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" for brevity) of the court of the learned Sessions Judge-cum-Special Judge, Malkangiri.
5. Mr. Jugal Kishore Panda, learned counsel for the Petitioners submits that as per law the investigation should be completed within 180 days and the said period has expired on Page 2 of 6 // 3 // 28.02.2021. The Investigating Officer in this case had filed an application seeking extension of time of investigation for another 180 days for submission of prosecution report. He further submits that in the said application the Investigating Officer has specifically stated that the investigation of the case could not be completed within the time, as the following actions are yet to be taken because the owners of the involved car and motor cycle, who are staying in Maharastra and other district, are yet to be examined, financial investigation of the case is going on and the absconder accused Hemananda Sardar was nabbed till that day.
6. He further submits that the Investigating Officer nowhere in the said application has stated regarding progress of the case. He further submits that the learned Sessions Judge- cum-Special Judge, Malkangiri without going through the material available on record and without application of mind has passed the aforesaid impugned order extending the period of detention of the Petitioners for another period of 60 days. Hence, the impugned order needs to be quashed and the Petitioners may be allowed to go on bail.
7. Mr. K. Gaya, learned Additional Standing Counsel for the State submits that the Investigating Officer in this case has made a prayer for extension within the statutory period of 180 days and the impugned order dated 01.03.2021 passed by the learned Sessions Judge-cum-Special Judge, Malkangiri requires no interference. So, this CRLMC filed by the Petitioners warrants dismissed.
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8. Heard learned counsel for the Parties.
9. A close look at Sub-Section (4) of Section 36A of the NDPS Act, which reads as follows:
"In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
10. It appears, in the instant case, the learned Public Prosecutor had not filed any report nor did mention in the application for extension of time regarding progress of the case. It also appears from the records that the copy of the application seeking extension of time of investigation was not served on the Petitioners. The impugned order also does not show that the Petitioners have been given opportunity of hearing while considering the application for extension of time of investigation.
11. Having dealt with such issue, the Hon'ble Supreme Court in the case of M. Ravindran -vrs-. The Intelligence Officer, Directorate of Revenue Intelligence, passed in Criminal Appeal No.699 of 2020 (Reportable), has held that:
Page 4 of 6// 5 // "Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have 'availed of' or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency."
12. Similarly, the Hon'ble Supreme Court has echoed similar sentiment in catena of judgments re-affirming the intent of legislature. In the case of S. Kasi -vrs.- State through the Inspector of Police Samaynallur Police Station Madurai District1, wherein it was observed that "indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21 of the Constitution of India, and the said right to bail cannot be suspended even during a pandemic situation". It was also unequivocally emphasized that "the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet".
13. Further, in the cases of Hitendra Vishnu Thakur - vrs.- State of Maharashgtra2, State through CBI vrs. Mohd. Ashraft Bhat3, Dr. Bipin Chantilal Panchal vrs. State of 1 2020 SCC Online SC 529 2 (1994) 4 SCC 602 3 (1996) 2 SCC 432 Page 5 of 6 // 6 // Gujarat4, the Hon'ble Supreme Court have reiterated the issue in similar view.
14. In that view of the matter, the CRLMC is allowed. The impugned order dated 01.03.2021 passed by the learned Sessions Judge-cum- Special Judge, Malkangiri in T.R. No.89 of 2020 in so far as it relates to extension of time of period of detention of the Petitioners is hereby quashed. The Learned Sessions Judge-cum-Special Judge, Malkangiri is also directed to release the Petitioners on bail in the aforesaid case on some stringent terms and conditions as deemed just and proper by him/ her with further conditions that:-
i.) the Petitioners shall appear before the trial court on each date of posting of the case; and ii.) they shall not tamper with the prosecution evidence in any manner.
15. Violation of any of the aforesaid conditions may entail consideration for cancellation of the bail granted to the Petitioners.
16. With the aforesaid directions, this CRLMC is disposed of.
17. Urgent certified copy of this order be granted on proper application.
( S. K.Panigrahi) Judge BJ 4 (1996) 2 SCC 718 Page 6 of 6