Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ori) 382

IN THE HIGH COURT OF ORISSA AT CUTTACK
V.NARASINGH, J.
Paramesh Podal @ Dipu – Petitioner
Versus
State of Odisha - Opposite Party
BLAPL No.7862 of 2023
Decided On : 29-09-2023

Advocates Appeared:
For the Petitioner:Mr. K.A. Guru, Advocate
For the Opposite Party : Mr. P.K. Maharaj, ASC

Prolonged incarceration and lack of trial progress can justify bail under Article 21, overriding restrictions in the N.D.P.S Act.

Headnote:(A) N.D.P.S Act - Sections 20(b)(ii)

(C), 29 and 37(1)(b)(ii) - Bail application - Petitioner accused of possessing 1000 Kg of ganja and in custody since 18.09.2020 - Only two witnesses examined out of 22 - High Court emphasized right to speedy trial and Article 21 - Prolonged incarceration can outweigh statutory bail restrictions - Grant of bail permitted with conditions. (Paras 10, 11, 12)

(B) Speedy Trial - Constitutional rights - The right to speedy trial is a fundamental right under Article 21 and should not be undermined by legislative barriers. (Para 12)

Facts of the case:
The Petitioner challenged the rejection of his bail application. He had been in custody since 18.09.2020 and only two witnesses were examined in the trial that had not progressed.

Findings of Court:
The prolonged period of incarceration along with the lengthy trial justified the grant of bail to the Petitioner, subject to specific conditions.

Issues: Whether the prolonged detention protects the accused's rights to a speedy trial against the statutory provisions restricting bail under the N.D.P.S Act?

Ratio Decidendi: Given the prolonged incarceration and minimal trial progress, constitutional rights under Article 21 override statutory limitations on bail. The court emphasized that the right to a speedy trial is paramount and should guide the decision-making process in bail matters.

Result: Petitioner's application for bail granted.

Table of Content
1. basis of the bail application. (Para 2 , 3 , 4 , 5)
2. state's opposition to bail. (Para 6 , 8)
3. court's interpretation of bail conditions. (Para 7 , 9 , 10 , 11)
4. right to speedy trial and bail entitlement. (Para 12)
5. conditions for granting bail. (Para 13 , 14 , 15 , 16 , 17)

ORDER :

V.NARASINGH, J.

1. Heard learned counsel for the Petitioner and learned counsel for the State.

2. The Petitioner is an accused in T.R. Case No.55 of 2020 pending on the file of learned Addl. Sessions Judge-cum-Special Judge, Koraput, arising out of Semiliguda P.S. Case No.79 of 2020 for commission of the offence under Sections 20 (b)(ii)(C)/29 of the N.D.P.S Act.

3. Being aggrieved by the rejection of his application for bail U/s. 439 Cr.P.C by the learned Addl. Sessions Judge-cum-Special Judge, Koraput, by order dated 30.06.2023 in the aforementioned case, the present BLAPL has been filed.

4. It is submitted by the learned counsel that charge sheet in the case at hand has been filed on 4.12.2020 on the accusation of possessing contraband (ganja) to the tune of 1000 Kg.

5. It is further submitted that the Petitioner is in custody since 18.09.2020 and only two witnesses have been examined and the trial is lingering for no fault of the Petitioner.

6. Learned counsel for the State opposes the prayer for bail in view of the bar contained in Section 37 (1)(b)(ii) of the N.D.P.S Act.

7. Perused the status report received from the learned Court in seisin which fortifies the submission of the learned counsel for the Petitioner that out of 22 charge sheeted witnesses, only 02 witnesses have been examined so far and the case was posted to 22.09.2023/23.09.2023.

8. Leaned counsel for the Petitioner Mr. Guru, on instruction, submits that trial has not progressed any further beyond the examination of the two witnesses as noted and it is curious to note that notwithstanding that the Petitioner is in custody for more than two years no time frame has been indicated by the learned Court in seisin for conclusion of trial rather it has been stated thus: “However this Court is striving hard for early disposal of the case.”

9. While dealing with embargo relating to grant of bail under the N.D.P.S Act the Apex Court in the case of State of M.P vrs. Kajad reported in (2001) 7 SCC 673 held thus:

“xxx xxx xxx

A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub clause (ii) of clause (b) of (1).

xxx xxx xxx”

10. Hence, onerous duty is cast on the trial court to ensure that the right of the accused for speedy trial is not marginalized in view of additional restrictions as envisaged under Section 37 (1)(b)(ii) of the N.D.P.S Act.

11. In this context, this Court respectfully relies on the decision of the Apex Court in the case Rabi Prakash vrs. The State of Odisha , 2023 Live Law (SC) 533 wherein it is held that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and the conditional liberty must override the statutory embargo created under Section 37 (1)(b)(ii) of the N.D.P.S Act.

(Emphasized)

12. Taking into account that the Petitioner is in custody for more than three years and the conclusion of trial is going to take considerable time, this Court is persuaded to accede to the prayer of the learned counsel for the Petitioner that in terms of the mandate of Article 21 of the Constitution and keeping in view the law laid down by the apex Court in the case of Hussainara Khatoon & others vrs. State of Bihar, reported in (1980) 1 SCC 81 , the Petitioner is entitled to be released on bail.

13. Accordingly, this Court directs the Petitioner to be released on bail on such terms to be fixed by the Court in seisin.

14. Before releasing, learned Court in seisin

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