9911796707
TMI Blog2022 (11) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... al to accused, legislatures has enacted and introduced the provision of Section 436(A) of the Cr.P.C. in general by way of amendment as also Section 437(6) of the Cr.P.C. for cases triable by a Magistrate. Further, Section 436(A) of the Cr.P.C. prescribes the maximum period for which an under trial prisoner can be detained for an offence under law except where punishment for the offence is death. In other words, where the accused has been charged for offences punishable with life or minimum for ten years which may extend to twenty years and the offences are heinous and serious having deep impact over society at large, mere detention of accused in custody for two or three years in a peculiar facts and circumstance of the case may not be considered as undue delay, but it is not absolute in each and every case especially when deprivation of personal liberty of an accused without assurance of a speedy trial which is the legitimate expectation of the under trial prisoner, cannot be countenanced under law, more so, when the delay is not attributable to the accused. It appears that the petitioner was one of the occupants of the vehicle in which contraband Ganja was allegedly being transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t smell of Ganja was emitting. On being asked, the occupants of the vehicle could not able to produce any authority for possessing the contraband Ganja but the S.I. and staff ascertained the names and address of all the three occupants which includes the petitioner Rabi Prakash and they also seized the contraband Ganja which on weighment came to 246 Kgs. 800 grams and after observing all formalities, the petitioner and others were forwarded to the Court and the case was investigated into by S.I. Bhagaban Mishra who on finding prima facie case submitted charge sheet against the petitioner and others for commission of offence U/Ss. 20(b)(ii)(C) of the N.D.P.S. Act 4. In the course of hearing of the bail application, Mr.A.N.Pattanayak, learned counsel for the petitioner submits the following points/grounds for consideration of the bail application of the petitioner:- (i) Three persons including the present petitioner were arrested from the spot and consequently other accused persons were also arrested but in the meantime four accused persons have been granted bail. (ii) Out of the accused persons granted bail, one Bikram Singh standing on similar footing as that of present petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act creates an embargo for release of the petitioner on bail unless the twin conditions enumerated therein are fully satisfied by the petitioner for grant of bail to him but the petitioner has failed to satisfy the Court about the conditions as mandated in the aforesaid section. It is also submitted that merely because the trial has not concluded, the detention of the petitioner in this case being for a small period of two years or three years, it cannot be taken as a ground for release of the petitioner on bail. Learned counsel for the State further submits that the principle of parity cannot be extended to the petitioner in view of the fact that the order granting bail to co-accused persons was passed without reference to Section 37 of N.D.P.S. Act and the law laid down by Apex Court in Satpal Singh Vrs. State of Punjab; (2018) 13 SCC 813 and Lingaraj Meher Vrs. State of Orissa; BLAPL No. 2524/2021 decided on 11.02.2022. It is further submitted that the right to speedy trial and the personal liberty are definitely precious rights but such protection cannot be absolute in every situation and this two rights are to be considered by balancing the same with mandatory provision of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion(1), besides the mandatory conditions imposed in Sub-Section(2), that there are certain restrictions on the power of the Court while granting bail to a person accused of offence involving commercial quantity, besides offences punishable U/Ss. 19 or 24 or 27- A of the N.D.P.S. Act but such restrictions on the power of the Court are not absolute and such person accused of an offence involving commercial quantity or offences U/Ss. 19 or 24 or 27-A of the N.D.P.S. Act can be released on bail or on his own bond provided the public prosecutor has been given an opportunity to oppose the bail application for such release and where the public prosecutor opposes the bail application, the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 9. Further, the aforesaid limitations on granting bail arises on merits only but what constitutes reasonable grounds as referred to in Section 37(1)(b)(ii) has not been defined in the N.D.P.S. Act and it is clarified by the rulings of Apex Court to the effect that the expression reasonable grounds means something more than pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ima facie case, severity of punishment for offences alleged against the accused, nature of supporting evidence collected, apprehension of tampering the witnesses by the accused, nature and gravity of the offence, apprehension of accused absconding, criminal antecedents of the accused etc. The above lists are not exhaustive but indicative only. 11. Besides, a Court is not bound to exercise its discretion to grant bail to an accused on the ground of parity when the order granting bail to a similarly placed co-accused is devoid of any reason or the same has been secured in violation of statutory provision of law and there the Court can ignore such order granting bail to co-accused without following the mandatory provisions. Law never advocates/compels any Court to exercise discretion in violation of statutory requirement of the legal provisions merely on the ground that co-accused has been granted bail. For declining to extend the principle of parity on the premises of non-compliance of Section 37 of N.D.P.S. Act, this Court is fortified with the decision of our Apex Court in Satpal Singh Vrs. State of Punjab; (2018) 13 SCC 813, wherein a three Judge Bench of the Apex Court in paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such application. 14.1. In Babua Vrs. State of Orissa; (2001) 2 SCC 566, the Apex Court at Para-3 has held thus:- 3. The reason given by the petitioner for claiming grant of bail become insignificant if one bears in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen was whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, one cannot say that the accused is not guilty of the offence if the allegations are made in the charge sheet are established. Moreover, the evidence having not been completely adduced before the Court one cannot say that there were no grounds to hold that he was not guilty of such offence. Further, the liberty of a citizen has got to be balanced with the interest of the society. In cases where Narcotic Drugs and Psychotropic Substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the socie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy trial is not specifically enumerated as a fundamental right but it is implicit in the broad swift and content of Article 21 as interpreted by Apex Court in Manaka Gandhi Vrs. Union of India;(1978) 2 SCR 621, which was reiterated in Hussainara Khatoon(supra) wherein after taking into consideration the plight of under trial prisoners charged for minor offences languishing in custody for 5-10 years without initiation of trial, the Apex Court had held that speedy trial is the essence of criminal justice and delay in trial by itself constitutes denial of justice. Right of speedy trial is undeniably a right of the accused guaranteed under Article 21 of our Constitution, but each and every day delay does not necessarily amount to long delay causing prejudice to the accused, besides how long time would be considered as long delay affecting the right of the accused to speedy trial has not been precisely explained. In this context, while determining undue delay that has occurred in a case resulting in violation of Right to speedy trial, all the attendant circumstances such as nature of offences, number of accused and witnesses, the work load of the Court concerned, prevailing the local co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the under trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for the like amount. On reverting back, it is not the case of the petitioner that he has already suffered incarceration for a period of five years and it cannot be forgotten that the petitioner has been implicated in this case for offences punishable with minimum imprisonment of ten years and a fine of Rupees one lakh. 20. For grant of bail to the petitioner, learned counsel for the petitioner has also relied upon Rakesh Singh(Supra), wherein the Apex Court declines to interfere the order granting bail to the accused therein, but the fact remains that the High Court of Calcutta while granting bail to accused Rakesh has formed a opinion that the restriction of Section 37 of N.D.P.S. Act would not apply to the case and further the allegation against accused Rakesh Singh therein is for financing illicit trafficking in contrabands and harbouring offenders and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
