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2016 Supreme(Ori) 1213
IN THE HIGH COURT OF ORISSA
S.K. Sahoo., J.
SUMIT KUMAR BEHERA - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
CRLA No 452 of 2013
Decided On : 19-07-2016
S.S. Ray-2, Advocate., for the Appellants ; Anil Kumar Nayak, (Addl. Standing Counsel), for the Opposite Party
The court emphasized the mandatory nature of Section 37 of the N.D.P.S. Act in considering bail applications under Section 389 Cr. P.C. and highlighted the need for a cumulative satisfaction of the conditions under Section 37 for granting bail.
Headnote:
N.D.P.S. Act - Bail - Section 389 - Section 20(b)(ii)(C) - Section 37
Fact of the Case:
The appellants were convicted under Section 20(b)(ii)(C) of the N.D.P.S. Act for possession of ganja and sentenced to ten years of rigorous imprisonment. They applied for bail under Section 389 Cr. P.C. citing the time already served and the delay in appeal hearing.
Finding of the Court:
The court rejected the bail applications, emphasizing that the limitations under Section 37 of the N.D.P.S. Act must be considered, and the appellants' incarceration alone cannot be the sole criteria for bail. The court also highlighted the need for a cumulative satisfaction of the conditions under Section 37 for granting bail.
Issues: The main issue was whether the appellants were entitled to bail under Section 389 Cr. P.C. during the pendency of their appeal, considering their conviction under the N.D.P.S. Act and the limitations imposed by Section 37.
Ratio Decidendi: The court emphasized that the provisions of Section 37 of the N.D.P.S. Act must be followed while considering bail applications under Section 389 Cr. P.C. The court also highlighted the need for a cumulative satisfaction of the conditions under Section 37 for granting bail.
Final Decision: The bail applications filed by the appellants were rejected, and the court directed for expeditious hearing of the appeal.
ORDER
S.K. Sahoo, J. - Misc. Case No. 1190 of 2013 and Misc. Case No. 349 of 2016 are the applications under Section 389 Cr. P.C. (filed by appellant No.1 Sumit Kumar Behera and appellant No.2 Babu Gouda respectively for bail.
Both the appellants faced trial in the Court of learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2 (a) C.C Case No. 02 of 2011(N) for offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter "N.D.P.S. Act"). The learned Trial Court vide impugned judgment and order dated 23.08.2013 found the appellants guilty of the offence charged and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 1,00,000/- (rupees one lakh) each, in default, to undergo further rigorous imprisonment for a period of two years each.
2. Mr. S.S. Ray-2, the learned counsel for the appellants contended that the appellants are in custody since 18.02.2011 and in the meantime they have already undergone more than half of the substantive sentence imposed by the learned Trial Court and there is no chance of early hearing of the appeal in the near future and therefore, in spite of the bar under section 37 of the N.D.P.S. Act, they are entitled to be released on bail during pendency of the appeal. The learned counsel for the appellants relied upon the decisions rendered in Cases of Dadu @ Tulsidas v. State of Maharashtra reported in (2001) 20 OCR (SC) 52, Mansingh v. Union of India reported in (2006) 1 SCC (Criminal) 279, Supreme Court Legal Aid Committee v. Union of India reported in (1994) 6 Supreme Court Cases 731, Thana Singh v. Central Bureau of Narcotics reported in (2013) 54 OCR (SC) 841, Tofan Singh v. State of Tamil Nadu reported in (2013) 56 OCR (SC) 916, Rajesh Bhalla v. State (NCT of Delhi) reported in 2011 Criminal Law Journal 2549 and Santosh Kumar Gupta v. Union of India reported in 2012 Criminal Law Journal 566.
Mr. Anil Kumar Nayak, learned Addl. Standing Counsel on the other hand contended that even though the appellants have already undergone more than half of the substantive sentence imposed by the learned Trial Court, unless they overcome the bar under Section 37 of the N.D.R.S. Act, they are not entitled to be released on bail during pendency of the appeal. In support of such contention, learned counsel for the State relied upon the decisions rendered in cases of Union of India v. Rattan Mallik @ Habul reported in (2009) 42 OCR 697 and Ratan Kumar Vishwas v. State of Uttar Pradesh reported in (2009) 1 Supreme Court Cases 482.
3. Before delving upon the points raised by the learned counsels for the respective parties in support and in oppose of the applications for bail of the appellants during pendency of the appeal, though it is unnecessary to advert to the facts of the case against the appellants in greater detail but a little factual narration of the prosecution case would be relevant for better adjudication.
It is the prosecution case that on 18.02.2011 Sub-Inspector of Excise (P.W.4) along with others had been to Digapahandi-Luhagudi State Highway receiving reliable information regarding transportation of ganja and around 7 a.m. while performing patrolling duty at Pudamari area, they found one Ambassador Car bearing Registration No. OR-02-AE-0200 coming towards Digapahandi. The vehicle was detained and it was found that appellant No.2 Babu Gauda was driving the car and appellant No.1 Sumit Kumar Behera was sitting in the car. On the rear seat of the car, jerry bags were found loaded and after necessary formalities, P.W.4 searched those jerry bags and found those containing ganja which weighed to be 300 kgs. which were sealed after weighment. The samples collected were sent for chemical analysis which confirmed it to be ganja (cannabis).
The learned Trial Court held that the submission of the learned defence counsel with regard to non-compliance of Section 42(2) of the N.D.P.S. Act was not acceptable.
