Orissa High Court
Naresh Digal vs State Of Odisha ....... Opp. Party on 27 January, 2021
Equivalent citations: AIRONLINE 2021 ORI 13
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 4652 of 2020
Application under section 439 of the Code of Criminal Procedure,
1973 in connection with C.T. Case No.25 of 2020 arising out of
K. Nuagaon P.S. Case No.30 of 2020 pending in the Court of
Special Judge -cum- Addl. Sessions Judge, Balliguda.
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Naresh Digal ....... Petitioner
-Versus-
State of Odisha ....... Opp. Party
For Petitioner: - Mr. Saktidhar Das
Senior Advocate
For Opp. Party: - Mr. Deepak Ranjan Parida
A.S.C.
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
...................................................................................................
Date of Hearing & Order: 27.01.2021
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S. K. SAHOO, J. This matter is taken up through Video Conferencing.
Heard Mr. Saktidhar Das, learned Senior Advocate
appearing for the petitioner and Mr. Deepak Ranjan Parida,
learned counsel for the State.
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This is an application for bail under section 439 of
Cr.P.C. in connection with K. Nuagaon P.S. Case No.30 of 2020
corresponding to C.T. Case No.25 of 2020 pending in the Court
of learned Special Judge -cum- Addl. Sessions Judge, Balliguda
for alleged commission of offences under sections 20(b)(ii)(C),
25, 27-A and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereafter 'N.D.P.S. Act').
The prayer for bail of the petitioner has been
rejected by the learned Special Judge -cum- Addl. Sessions
Judge, Balliguda by order dated 17.06.2020.
The prosecution case, in short, is that on 09.06.2020
at about 8.00 p.m. as per direction of I.I.C., K. Nuagaon P.S.,
the informant Prakash Kumar Pradhan, S.I. of Police, K. Nuagaon
police station along with his staff had been to perform their night
patrolling duty and while performing their duty at Purun Nuagaon
area, at about 8.10 p.m. the informant got information from
D.S.P. I/C Balliguda police stattion Sri Manoj Kumar Pujhari that
a Mahindra Bolero Maxx Pik-Up vehicle bearing Registration No.
WB 57-B-9682 crossed Balliguda Naka post in a high speed in
suspicious manner. The informant and his staff proceeded
immediately towards Daringbadi and on the way at Sirtiguda
bazaar, due to rash and negligent driving of the driver of the said
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Bolero vehicle, it slipped near a under construction bridge and
could not proceed ahead. S.I. Sri Pradhan could notice four
persons who were sitting inside the Bolero started running to
evade arrest by the police. However, they could manage to catch
hold of two persons while other two persons fled away from the
spot. On interrogation, the apprehended persons disclosed their
identity so also identity of two absconding accused persons and
confessed their guilt that they were transporting ganja towards
Kolkata for selling purpose. They also disclosed that they
procured ganja from one Sunil Digal of village Sindrigaon. The
informant sent constable C/77 Sibaram Mallick to arrange two
independent witnesses and a weighman from the locality and the
informant also commanded the driver HG/498 Babula Pradhan to
bring his laptop, printer, generator, brass seal, packing and
sealing materials with requisition for deputation of a gazetted
police officer to the spot as the spot was highly naxal affected
area. On being asked in Hindi language, the accused persons
agreed to be searched in presence of gazetted officer.
Accordingly, the accused persons and other independent
witnesses were searched personally. The S.D.P.O., Balliguda
recovered cash of Rs.2560/- one Motorola mobile phone from
accused Choton Sk. He also recovered one DL, one Xerox copy of
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RC book of Bolero vehicle bearing No. WB 57-B-9682 stands
recorded in the name of owner Jahanara Bibi Sekh, one
insurance certificate of that vehicle, one Vivo mobile phone from
accused Jayanal Ansari and seized those articles and prepared
seizure list at the spot in presence of witnesses. The informant
searched the vehicle in presence of S.D.P.O. and independent
witnesses and found twenty six polythene packets wrapped with
cello tape kept in a concealed manner under ten potato bags in
the Dala of the vehicle. The informant opened all the twenty six
bags and kept it on a polythene on the ground and
homogenously mixed and prepared eleven numbers of new
packets (ten packets containing 12 kgs 200 grams each and
another one packet containing 10 kgs 800 grams), in total 132
kgs. 800 grams and without bags, it was 131 kgs. 700 grams.
The ganja was weighed and seized and brought to the police
station along with accused persons Choton Sk and Jayanal
Ansari. The informant presented a written report at the police
station and the I.I.C., K. Nuagaon P.S. registered the case and
directed S.I. P. Nayak to take up investigation of the case. In
course of investigation, the I.O. arrested the accused persons
Choton Sk and Jayanal Ansari on the same day and forwarded
them to Court on 11.06.2020. The petitioner Naresh Digal was
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arrested on 16.06.2020 and forwarded to Court on the same
day.
There is no dispute that the ganja seized in the case
comes under 'commercial quantity' as defined under section
2(viia) of the N.D.P.S. Act. In view of sub-section (4) of section
36-A of the N.D.P.S. Act, for offences involving commercial
quantity, the references in sub-section (2) of section 167 of
Cr.P.C. to 'ninety days' shall be construed as reference to 'one
hundred and eighty days', in other words, if the investigation of
the case is not completed within one hundred and eighty days of
the date of first remand of an accused to custody, he would
ordinarily be entitled to default bail in view of the proviso to sub-
section (2) of section 167 of Cr.P.C. but the proviso to sub-
section (4) of section 36-A of the N.D.P.S. Act states 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 investigation and the
specific reasons for the detention of the accused beyond the said
period of one hundred and eighty days. Therefore, if the Special
Court extends the period of completion of investigation
exercising the power as conferred under sub-section (4) of
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section 36-A of the N.D.P.S. Act then the accused would not be
entitled to default bail under section 167(2) of Cr.P.C. on the
ground of non-submission of final form within one hundred and
eighty days of the date of his first remand to custody inasmuch
as it cannot be said there is any default on the part of the
investigating officer in not filing final form within the said period
as time for completion of investigation has been extended.
In the case in hand, the petitioner was forwarded to
the Court of learned Special Judge, Balliguda on 16.06.2020 and
one hundred and eighty days period as per sub-section (4) of
section 36-A comes to end on 13.12.2020. It appears that on
04.12.2020, a prayer was made by the investigating officer
before the learned trial Court by filing a petition through the
Special Public Prosecutor to extend the period of completion of
investigation for ninety days more. Copy of the petition was
served on the learned defence counsel on the very day i.e. on
04.12.2020 and on the same day, order was passed by the
learned Special Judge in allowing the petition filed by the learned
Special Public Prosecutor and the investigating officer was
directed to complete the investigation and submit charge sheet
in a further period of ninety days. The operative portion of the
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order dated 04.12.2020 passed by the learned Special Judge is
extracted herein below:
"........The proviso to sub-section (4) of section
36-A of the N.D.P.S. Act makes it clear that, if it
is not possible to complete the investigation
within the period of 180 days, the Special Court
may extend the said period up to one year on
the report of the Public Prosecutor indicating the
progress of investigation and the specific
reasons for detention of the accused beyond the
period of 180 days. The provision of sub-section
(4) of section 36-A of the N.D.P.S. Act has been
enacted for the purpose of declaring a law
relating to the narcotic drugs and to make
stringent provision for the regulation of
operations relating to narcotic drugs and thus
N.D.P.S. Act being a Special Act, it overrides the
general provision of s.167(2) of Cr.P.C.
[Rasheek v. State of Karnataka 2007
Crl.L.J. 2316 (Kant.)]
In view of the said provision, the petition
filed by the learned Special P.P. is allowed. The
I.O. is directed to complete the investigation and
to submit the charge sheet further in a period of
90 days. Put up on the date fixed awaiting Final
Form. Send an extract of this order to the I.O..."
Mr. Das, learned counsel for the petitioner contended
that since copy of such extension petition was served on the
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learned defence counsel on 04.12.2020 and extension order was
also passed on the very same day, the accused did not get a fair
opportunity to have his say and to oppose the extension sought
for by the prosecution and in all fairness of things, the learned
Special Judge should have given some reasonable time to the
learned defence counsel to obtain instruction from the petitioner
who was in jail and file his objection, if any, to such extension
petition and only thereafter on hearing the learned counsel for
both the sides, the Court could have passed any order either
allowing or rejecting the prayer for extension in accordance with
law. It is further contended that the approach of the learned
Special Judge in disposing of the petition for extension hurriedly
on the very day of filing without giving opportunity to the
accused to file his objection, has resulted in causing miscarriage
of justice and therefore, the extension order is not sustainable in
the eye of law and on that ground alone, the petitioner is entitled
to be released on bail. He further contended that the application
filed by the petitioner under section 167(2) of Cr.P.C. to enlarge
him on default bail was rejected without application of mind and
therefore, in view of period of detention in judicial custody, the
bail application of the petitioner should be favourably considered.
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Mr. Parida, learned counsel for the State, on the
other hand, produced the case diary and submitted that since
the copy of the extension application was served on the learned
defence counsel, it was his duty to seek for time to file objection
and since there is nothing in the order dated 04.12.2020 that the
defence counsel sought for any time to file his objection, it
presupposes that the defence counsel or the accused, had no
objection to such extension and therefore, it cannot be said that
there is any infirmity in the order dated 04.12.2020 passed by
the learned Special Judge in extending the completion of
investigation for a further period of ninety days in view of the
power conferred under section 36-A(4) of N.D.P.S. Act.
In the case of Lambodar Bag -Vrs.- State of
Odisha reported in (2018)71 Orissa Criminal Reports 31, a
question came up for consideration as to whether extension for
completing the investigation beyond the prescribed period of one
hundred and eighty days can be granted under section 36-A(4)
of the N.D.P.S. Act on the report of the Public Prosecutor without
any notice to the accused to have his say regarding the prayer
for grant of extension. While answering the said question, this
Court relying upon the decision of the Hon'ble Supreme Court in
the case of Hitendra Vishnu Thakur -Vrs.- State of
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Maharashtra reported in A.I.R. 1994 Supreme Court 2623
held that even though sub-section (4) of section 36-A of the
N.D.P.S. Act does not specifically provide for issuance of notice
to the accused on the report of the Public Prosecutor before
granting extension, but it must be read into the provision both in
the interest of the accused and the prosecution as well as for
doing complete justice between the parties and since there is no
prohibition to the issuance of such a notice to the accused, no
extension shall be granted by the Special Court without such
notice. Moreover, the report has to be filed by the Public
Prosecutor in advance and not on the last day, so that on being
noticed, the accused gets fair opportunity to have his say and
oppose the extension sought for by the prosecution.
An order for release on bail under the proviso (a) of
section 167(2) of the Cr.P.C. is an order on default on the part of
the prosecution to file charge sheet within the prescribed period.
It is a legislative command and not a judicial discretion of the
Court. An indefeasible right accrues in favour of the accused for
being released on bail on account of default by the investigating
agency in completing the investigation within the period
prescribed. If an accused entitled to be released on bail under
the proviso (a) makes an application before the Magistrate, there
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is no discretion left in the Magistrate and the only thing he is
required to find out is whether the specified period under the
statute has elapsed or not and whether a challan has been filed
or not. The merits of the case are not to be gone into while
releasing the accused on bail under proviso (a) to section 167(2)
Cr.P.C.
In the case in hand, the period of completion of
investigation as per sub-section (4) of section 36-A of the
N.D.P.S. Act from the first date of remand of the petitioner to
custody was one hundred eighty days which was expiring on
13.12.2020 and the said period of investigation could have been
extended as per proviso to the section in the manner it is
provided which must be after complying principle of natural
justice and after providing fair opportunity to the petitioner to
have his say and oppose the extension sought for by the
prosecution.
Therefore, when a petition was filed by the
investigating officer in advance on 04.12.2020 (which was not
the date fixed in the case earlier) through the Special Public
Prosecutor to extend the period of completion of investigation for
a further period of ninety days and copy of the petition was also
served on the learned defence counsel on 04.12.2020, since nine
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days more period was still there for completion of one hundred
eighty days, in all fairness of things, the case should have been
posted to some other date by the learned Special Judge to
consider the petition on merit by giving opportunity to the
learned defence counsel to obtain instruction from the petitioner,
who was in jail custody and to file his objection, if any, to such
petition. If no objection would have been filed from the side of
the petitioner, then the Court after hearing both the sides could
have passed the order and similarly, if any objection would have
been filed from the side of the petitioner, the Court could have
passed the order considering the objection in accordance with
law after giving opportunity of hearing to both the sides. In this
case, when the order was passed on the very day the extension
petition was served on the defence counsel and in the order,
there is nothing to show that the defence counsel was aware that
the petition would be considered on that day itself and there is
also nothing that the defence counsel did not want to file any
objection after taking instruction from the petitioner and there is
also nothing that the defence counsel was present at the time of
hearing of the petition and when it was the duty on the part of
the Court to grant some reasonable time to the defence counsel
to obtain instruction from the petitioner to file objection, if any,
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the same having not being done in this case, it cannot be said
that fair opportunity was provided to the petitioner to have his
say and oppose the extension sought for by the prosecution.
Mere serving a copy of the extension petition by the prosecution
on the defence counsel and that to on a date which was not
earlier fixed, is not sufficient to assume that fair opportunity was
provided to the petitioner.
In that view of the matter, I am constrained to hold
that the order of extension to complete the investigation granted
by the learned Special Judge as per order dated 04.12.2020, is
not in accordance with law and therefore, the petitioner is
entitled to be released on bail on that ground itself. Accordingly,
the prayer for bail is allowed.
Let the petitioner Naresh Digal be released on bail in
the aforesaid case on furnishing a bail bond of Rs.2,00,000/-
(rupees two lakhs) with two local solvent sureties each for the
like amount to the satisfaction of the learned Court in seisin over
the matter with further conditions as the learned Court may
deem just and proper including the condition that he shall appear
before the learned trial Court on each date to which the case
would be posted for trial.
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Violation of any of the conditions shall entail
cancellation of bail.
The BLAPL is accordingly allowed.
Urgent certified copy of the order be granted on
proper application.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack Dated 27th January 2021/PKSahoo