Orissa High Court
Saikh Javed vs State Of Odisha .... Opposite Party on 23 August, 2024
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 7236 of 2024
Saikh Javed .... Petitioner
Mr. M. Padhy, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. P.K. Mohanty, ASC
BLAPL No. 4827 of 2024
Mujassim .... Petitioner
Mr. Sk. Zafarulla, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. P.K. Mohanty, ASC
CORAM: JUSTICE V. NARASINGH
ORDER
23.08.2024 Order No.
02. 1. Since both the BLAPLs relate to the same P.S. (Damanjodi P.S. Case No.89 of 2020) they are heard together on the consent of the parties and are being disposed of by this common order.
2. Heard learned counsel for the Petitioners and learned counsel for the State.
3. Learned counsel for the Petitioners, on instruction, submits that except the present BLAPLs, no other bail application of the Petitioners are Page 1 of 6 pending in any other Court, relating to the aforesaid P.S. Case.
4. The Petitioners are accused in connection with T.R. Case No.60 of 2020 pending on the file of the learned Addl. Sessions Judge-cum-Special Judge, Koraput, arising out of Damanjodi P.S. Case No.89 of 2020, for the alleged commission of offence under Section 20(b)(ii)(C)/29 of NDPS Act.
5. Being aggrieved by the rejection of their application for bail U/s.439 Cr.P.C. by the learned Addl. Sessions Judge-cum-Special Judge, Koraput by orders dated 10.07.2024 & 01.05.2024 in the aforementioned cases respectively, the present BLAPLs have been filed.
6. This is the third journey of the Petitioner (Saikh Javed) in BLAPL No.7236 of 2024 to this Court. Earlier the bail applications of the said Petitioner were disposed of by orders dated 09.12.2022 & 20.06.2024 in BLAPL No.2809 of 2021 & BLAPL No.5916 of 2024 respectively.
7. This is the fourth journey of the Petitioner (Mujassim) in BLAPL No.4827 of 2024 to this Court. Earlier the bail applications of the said Petitioner were disposed of by orders dated 22.06.2022, 09.08.2023 & 23.11.2023 in BLAPL No.2952 of 2021, BLAPL Page 2 of 6 No.10475 of 2022 & BLAPL No.9976 of 2023 respectively.
8. It is submitted by the learned counsel for the Petitioners that the Petitioner (Saikh Javed) in BLAPL No.7236 of 2024 is in custody since 29.09.2020 and the Petitioner (Mujassim) in BLAPL No.4827 of 2024 is in custody since 28.09.2020.
9. The accusation against the Petitioners is that they are involved in the transportation of contraband to the tune of 1354Kgs 190gms (ganja).
10. Learned counsel for the Petitioner in BLAPL No.4827 of 2024 submits that while not entertaining the bail application of the Petitioner (Mujassim) in BLAPL No.9976 of 2023 by order dated 23.11.2023 this Court taking into account the report submitted by the learned Court in seisin called upon the learned Trial Court to conclude the trial by the end of April, 2024. Since the trial is evidently not concluded by such time frame the Petitioner has renewed his prayer.
11. Learned counsel for the Petitioner in in BLAPL No.7236 of 2024 submits that the Petitioner (Saikh Javed) has been implicated on account of the co- accused statement and hence relying on the dictum of the Apex Court in the case of Tofan Singh vrs. State of Tamil Nadu, reported in (2021) 4 SCC 1 and in the case of the State of Haryana vrs.
Page 3 of 6Samarth Kumar reported in 2022 Live Law (SC) 622 submits that prima facie the bar under Section 37(1)(b)(ii) of NDPS Act is not attracted in the case at hand.
12. Learned counsel for the State opposes the prayers for bail. And, submits that the Petitioner (Saikh Javed) in in BLAPL No.7236 of 2024 has criminal antecedents of similar nature and that the Petitioner (Mujassim) in BLAPL No.4827 of 2024 is a flight risk and considering the filing of the charge sheet, keeping in view the dictum of the Apex Court in the case of State by the Inspector of Police vs. B. Ramu in SLP(Crl.) No(s).8137 of 2022, in view of the twin bar under Section 37(1)(b)(ii) of NDPS Act the Petitioners are not entitled to be released on bail merely on the ground of procrastination of trial.
13. Learned counsel for the Petitioners submits that the prosecution has cited 16 witnesses and in the meanwhile 6 witnesses have been examined and out of which independent witnesses 5 & 6 have not supported the prosecution.
14. Hence, relying on the judgment of the Apex Court in the case of Ankur Chaudhary vs. State of Madhya Pradesh in SLP (Crl.) No.4648 of 2024 dated 28.05.2024, seek release.
15. It is the further submission of the learned counsel for the Petitioner (Mujassim) in BLAPL Page 4 of 6 No.4827 of 2024 that the said Petitioner is the first offender.
16. Considering the period in custody keeping in view the dictum of the Apex Court in the case of Ankur Chaudhary (supra), in the case of Rabi Prakash vrs. State of Odisha, 2023 SCC Online SC 1109 and in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 SCC OnLine SC 352, this Court directs the Petitioners to be released on bail on such terms to be fixed by the learned Court in seisin.
17. So far as the Petitioner (Mujassim) in BLAPL No.4827 of 2024 is concerned, learned Court in seisin is requested to verify the criminal antecedent of the Petitioner from his parent police station. If it comes to the fore that the said Petitioner has any criminal antecedent, this order shall not be given effect to.
18. This order is passed in view of the affidavit filed at the behest of the Petitioner (Mujassim) in BLAPL No.4827 of 2024 that he has no criminal antecedent. The said affidavit is taken on record.
19. Additionally, it is directed that the Petitioners shall appear before the jurisdictional police station once every week on such date and time to be fixed by the learned Court in seisin till submission of final form. Certification of such appearance shall be submitted to the learned Court in seisin.
Page 5 of 620. Keeping in view that the Petitioner (Mujassim) in BLAPL No.4827 of 2024 does not ordinarily reside in the State of Odisha, it is directed that one of the family member of the said Petitioner shall execute the P.R bond in addition to the sureties so fixed.
21. Accordingly, the BLAPLs stand disposed of.
22. Urgent certified copy of this order be granted as per the rules.
(V. NARASINGH)
Ayesha Judge
Signature Not Verified
Digitally Signed
Signed by: AYESHA ROUT
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 25-Aug-2024 11:40:22
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