Deepak Kumar Das vs State Of Orissa ....... Opposite Party on 15 May, 2023

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Orissa High Court

Deepak Kumar Das vs State Of Orissa ....... Opposite Party on 15 May, 2023

1. The Petitioner has prayed for releasing him on bail under Section 439 Cr.P.C. He was arrested and taken to custody on 14th January, 2018 for alleged commission of offence under Section 20(b)(ii)(C) of the NDPS Act for possession of contraband ganja weighing 105Kgs. 280 Grams.

2. The allegations are to the effect that the Inspector-in- Charge of Choudwar Police Station upon receipt of reliable information regarding sale of ganja raided the house of the co-

Signature Not Verified Page 1 of 8 Digitally Signed

Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 accused, namely, Dusasana Parida on 13th January, 2018 at about 8:00 P.M. At the time of raid it was found that the present Petitioner along with another were sitting in a motorcycle inside the house campus of Dusasana and one polythene sack was kept near them, which contained 24Kg.750Gram ganja (cannabis). The police persons searched the house of Dusasana Parida and found further 81Kg. of ganja from the house of said Dusasana. The Petitioner along with other two co-accused persons was arrested and the contraband weighing 105Kgs. 750 Grams were seized.

3. The Petitioner had earlier moved this Court praying for his release on bail and this Court by orders dated 10th April, 2019, 23rd September, 2020 & 24th August, 2022 rejected his prayer for bail. This Court also directed the trial court for early completion of trial. The Petitioner was also released on interim bail for a period of three months by order dated 24th August, 2022.

4. It is submitted that despite the orders passed by this Court directing for expeditious completion of trial, the same is yet to complete. A report was called for from the learned trial court regarding status of the trial and learned 1st Additional District & Sessions Judge, Cuttack in its letter dated 26th April, 2023 intimated that out of twenty four charge-sheeted witnesses only seventeen witnesses have been examined till date and P.W.18 has been examined in part. Thus the admitted position remains that the petitioner by now is incarcerated for five years four months pending trial barring few months of interim release and the date of completion of trial is still uncertain. It is to be noted here that the biggest embargo in the matter of bail under the NDPS Act Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Page 2 of 8 Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 concerning offences involving commercial quantity is satisfaction of twin conditions prescribed under section 37(1)(b) of said Act.

5. This rigour contained under the NDPS Act requires satisfaction of the conditions that there are reasonable grounds for believing that the accused is not guilty of such offences and that he is not likely to commit any offence while on bail. These two conditions are considered additional to other limitations for grant of bail like nature of accusations, likelihood of fleeing away from justice, tampering with evidence etc. In Satender Kumar Antil vs- Central Bureau of Investigation, (2022) 10 SCC 51, the Hon'ble Supreme court while dealing with the issue of prolonged incarceration of an accused pending trial have observed that, "We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

6. Taking note of Satender Kumar Antil (supra), the Supreme Court in a recent decision dated 28th March 2023 in Mohd Muslim alias Hussain vrs. State (NCT of Delhi), have observed Signature Not Verified Page 3 of 8 Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, given the imperative of Section 436A of the Cr.P.C. which is applicable to offences under the NDPS Act too. In the said case, the Petitioner was arrested in connection with alleged possession of 180Kgs of ganja and the charge-sheet was filed for commission of offence under Sections 20/25/29 of the NDPS Act along with Section 120-B of the I.P.C. His prayer for bail was refused in view of embargo contained in Section 37 of the NDPS Act by the Delhi High Court. The Supreme Court analyzing the effect of Section 37 of the NDPS Act in the wake of right to speedy trial and the imperative of Section 436A of the Cr.P.C., have observed as follows:

"19. 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 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 Signature Not Verified have the effect of overshadowing other conditions. In Digitally Signed cases where bail is sought, the court assesses the Signed by: CHITTA RANJAN BISWAL Designation: Secretary Page 4 of 8 Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 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 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.

20. 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 facie 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.

21. 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 Signature Not Verified Page 5 of 8 Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 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.

22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country.

Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

23. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State as "a radical transformation"

whereby the prisoner:

"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes."

24. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal" (also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of Signature Not Verified families as well as loss of family bonds and alienation Digitally Signed from society. The courts therefore, have to be sensitive Signed by: CHITTA RANJAN BISWAL Designation: Secretary Page 6 of 8 Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."

7. Further, the Supreme Court in another recent case in SLP (Crl.) No.6690 of 2022 (Dheeraj Kumar Shukla vrs. The State of Uttar Pradesh), involving seizure of 92 Kgs. and 65 Kgs. Of Ganja from two vehicles and the accused was in custody since 24th June 2020, have held that in absence of criminal antecedents and the fact that the Petitioner was in custody for 2½ years, the conditions of Section 37 of the NDPS Act can be dispensed with. The relevant observations are reproduced below:

"3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.

4. For the reasons stated above but without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court."

8. In the instant case, the Petitioner is inside custody since 14th January, 2018 and in the meantime, the Petitioner has been Signature Not Verified Page 7 of 8 Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53 detained for more than five years in custody. Despite the direction of this Court dated 10th April, 2019, only eighteen witnesses have been examined till date. As per the principles enumerated by the Supreme Court in the cases discussed above and keeping in view the period of detention of the Petitioner inside custody, which is more than 50% of the prescribed minimum sentences for the offences under Section 20(b)(ii)(C) of NDPS Act, I am inclined to release the Petitioner on bail holding that, the right conferred under Section 436A of the Cr.P.C. cannot be fettered by the embargo contained in Section 37(1)(b) of the NDPS Act.

9. Accordingly, it is directed that the Petitioner be released on bail in connection with G.R.Case No.01 of 2018 arising out of Choudwar P.S.Case No.15 of 2018 by the learned 1st Addl. District & Sessions Judge, Cuttack on such terms and conditions as the learned 1st Addl. District & Sessions Judge may deem fit and proper, including the condition that the Petitioner shall not be involved in any other offence while on bail.

10. The BLAPL is disposed of.

11. Urgent certified copy of this order be granted on proper application.

( B.P. Routray) Judge C.R.Biswal, Secy.

Signature Not Verified Digitally Signed

Signed by: CHITTA RANJAN BISWAL Designation: Secretary Page 8 of 8 Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 15:30:53

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Orissa High Court