Lambodar Bag vs State of Orissa - 2018 Supreme(Ori) 540

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Ori) 540

IN THE HIGH COURT OF ORISSA
S. K. SAHOO, J.
BLAPL No. 7337 of 2017
An application under section 439 of the Code of Criminal Procedure, 1973 in connection with 2(a) C.C. Case No. 02 of 2017 pending in the Court of Addl. Sessions Judge -cum- Special Judge, Patnagarh, Bolangir.
Lambodar Bag … Petitioner
Versus
State of Orissa … Opp. Party
BLAPL No. 2717 of 2017
Decided on 16th May, 2018.
Jayanti Bag … Petitioner
Versus
State of Orissa … Opp. Party

Advocates Appeared:
For Petitioners: Dr. Niranjan Swain
For Opp. Party :Mr. Arupananda Das Addl. Govt. Advocate

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 439 - Prosecution report submitted u/s. 20 (b) (ii) (C) of the NDPS Act, 1985 - Bail application rejected by Trial Court - Discussing the facts, contention and ratio of law decided in cited cases held, even though the petitioners have not applied for bail during the default period when prosecution report was not filed even after extended period for completion of investigation as was granted by the learned Trial Judge but since the learned Trial Judge has not informed the petitioners of their right being released on bail on account of non-submission of prosecution report, no fault can be found with the petitioners for not making such application for bail during the default period - In the factual scenario, the petitioners cannot be stated to have voluntarily given up their indefeasible right for default bail - Not necessary to consider the gravity of the offence, the merits of the prosecution case or the bar u/s. 37 of the NDPS Act - Petitioner be released on bail on conditions stated. (Paras - 27 to 30)
        2. CONSTITUTION OF INDIA, 1950 - Art. 21 - Right to liberty is a fundamental right flows from the article - Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof as stipulated under the article. (Para - 8)
        3. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - Sec. 36-A (4) -The section 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 - 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. (Para - 8)
        4. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - Sec. 36-A (4) - Report of the Public Prosecutor is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contain in Clause (bb) - Mere reproduction of the application or request of the Investigating Officer by the Public Prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction would not render his report as the one envisaged by Clause (bb) and it would not be proper report to seek extension of time. (Para - 8)
        5. BAIL - An application for bail in the High Court is not an application for review of the order of the Court below - Grounds not taken in the Court below can be taken in the bail petition in the higher Court and even non-taking of grounds in the bail petition will not deprive the Counsel for the accused in raising such grounds during hearing of the bail application -Even if a ground for grant of bail is not taken in the bail petition and not argued by the Counsel for the accused, the Court is not deprived of releasing the accused on bail on such ground if it is legally sustainable - Strict rules of pleadings are not applicable in bail petition.

JUDGMENT

S. K. SAHOO, J. - The petitioner Lambodar Bag in BLAPL No.7337 of 2017 and his wife Jayanti Bag in BLAPL No.2717 of 2017 have filed these petitions under section 439 of Cr.P.C. seeking for bail in connection with 2(a) C.C. Case No. 02 of 2017 pending in the Court of learned Addl. Sessions Judge -cum- Special Judge, Patnagarh, Bolangir (hereafter ‘trial Judge’) in which prosecution report has been submitted against them under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) for illegal possession and transportation of 345 kgs. 40 grams of ganja.

2. The prosecution case, as per the prosecution report dated 26.09.2017 submitted by the Sub-Inspector of Excise, Patnagarh charge is that the petitioners were found to be in illegal possession and transportation of 22 numbers of jerry bags containing 345 kgs. 40 grams of ganja on 24.01.2017 at 9.30 a.m. near Mahadeb pond at Nehenabandh under Patnagarh police station in the district of Bolangir. They were arrested at the spot and forwarded to Court of learned trial Judge on the very day along with seized articles.

3. The bail application of petitioner Jayanti Bag was rejected by the learned trial Judge on 18.03.2017. The petitioner Lambodhar Bag filed an application under section 439 Cr.P.C. seeking for bail directly before this Court in BLAPL No.3976 of 2016 without moving first the learned trial Judge annexing the rejection order of the petitioner Jayanti Bag. The said petition was disposed of on 21.07.2017 as withdrawn.

4. Since within the stipulated period of one hundred and eighty days as provided under sub-section (4) of section 36-A of the N.D.P.S. Act, investigation could not be completed, on 22.07.2017 on a petition filed by the learned Addl. Special Public Prosecutor and after hearing the learned Addl. Special Public Prosecutor as well as the Investigating Officer, period of investigation was extended for another sixty days by the learned trial Judge.

The extended period for completion of investigation as was granted by the learned trial Judge as per order dated 22.07.2017 expired on 20.09.2017. The final prosecution report dated 26.09.2017 was received by the learned trial Judge on the very day but cognizance of offence under section 20(b)(ii)(C) of the N.D.P.S. Act was taken on 07.10.2017.

The case against the co-accused Kumen Karunananda who as an absconder as per the final prosecution report was splitted up on 01.12.2017.

5. The petitioner Lambodhar Bag filed an application for bail before the learned trial Judge for his release on health ground which was rejected on 09.08.2017. He has filed BLAPL No. 7337 of 2017 against such rejection order.

Similarly the petitioner Jayanti Bag has filed BLAPL No. 2717 of 2017 against the rejection order dated 18.03.2017.

6. Dr. Niranjan Swain, learned counsel for the petitioners pleading for bail of the petitioners contended that while extending the period of investigation for another sixty days as per the order dated 22.07.2017, neither the petitioners nor their counsels were noticed nor they were heard and even though after the extension period of sixty days, investigation

could not be completed, no further petition as per the proviso to sub-section (4) of section 36–A of the N.D.P.S. Act was filed but all the same, the learned trial Judge remanded the petitioners to judicial custody. He further contended that detention of the petitioners beyond the extended period for completion of investigation without the challan being filed is illegal and unauthorized. He further contended that the petitioners were not informed about their right of being released on bail in view of the proviso to sub-section (2) of section 167 of Cr.P.C. and therefore, the petitioners are entitled to be released on bail.

Mr. Arupananda Das, learned Addl. Govt. Advocate appearing for the State on the other hand submitted that the petitioners should have first approached the learned trial Judg

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