Sunny Kumar vs State Of Odisha

G. Satapathy, J

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

This is a successive bail application U/S. 439 of Cr.P.C. by the Petitioner for grant of bail in connection with S.T.F. P.S. Case No. 09 dated 13.04.2022 corresponding to T.R. Case No. 138 of 2022 pending in the file of learned 5th Additional District & Sessions Judge (K), Bhubaneswar for commission of offence punishable for commission of offence punishable U/Ss. 21(c) & 29 of the NDPS Act, on the allegation of possessing 202 Grams of Cocaine along with co-accused persons.

The Petitioner renews his prayer for bail purportedly under the changed circumstance of submission of Chemical Examination Report.

In the course of hearing of the bail application, Mr. A.S. Paul, learned counsel for the Petitioner submits that although the Petitioner was alleged to have possessed Cocaine, but the Chemical Examination Report confirms it to be Brown Sugar and thereby, the quantity of Contraband article, which was found to be Brown Sugar in the aforesaid circumstance, seized in this case was less than the commercial quantity of Brown Sugar and the Petitioner having detained in custody for more than one year and three months, particularly when he was found to be not in conscious possession of any Contraband article may kindly be granted bail.

On the other hand, Mrs. S.R. Sahoo, learned ASC, however, strongly opposes the bail application of the Petitioner, but on being asked, she clarifies the Court that the Chemical Examination Report submitted in this case reveal the sample sent to SFSL was Brown Sugar. She further submits that although the Chemical Examination Report reveals the articles seized to be Brown Sugar, but the Petitioner being a resident of outside State, there is every chance of his absconding from the process of Court.

A Perusal of materials placed on record, there appears allegation of seizure of 202 grams of Cocaine in this case, but as per the admitted submissions, the sample sent to SFSL was found to be Brown Sugar and in any case, the quantity of seized Contraband articles, if was Brown Sugar, then it would not come under commercial quantity.

In view of the above facts and after having considered the rival submissions made and taking into consideration the nature and gravity of accusations raised against the Petitioner and keeping in view the opinion furnished by the chemical examiner in the chemical examination report and taking into account the quantity of Contraband articles seized in this case and regard being had to the pre trial detention of the Petitioner, the rigor of conditions of Sec. 37 of NDPS Act automatically get diluted. Besides, the prolong incarceration, generally militates against the most precious Fundamental Right guaranteed under article 21 of the Constitution of India and in such situation, the conditional liberty would prevail over the long incarceration. When the bail application of the Petitioner is considered keeping in mind the aforesaid situations and facts as narrated above, this Court finds that the Petitioner has made out a case for grant of bail.

This Court, however, finds some merit in the submission of the learned ASC that the Petitioner being not a resident of the State of Orissa, some stringent conditions are required to be imposed upon him in the event of his enlargement on bail.

In the net result, the bail application of the Petitioner stands allowed and the Petitioner is allowed to go on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh) only with two local solvent sureties for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following conditions:-

(i) the Petitioner shall not commit any offence while on bail,

(ii) the Petitioner shall attend the trial Court on each date of posting without fail unless his attendance is dispensed with,

(iii) the Petitioner shall not leave the jurisdiction of the trial Court without prior permission till disposal of the case

(iv) the Petitioner shall report attendance before the jurisdiction Police Station once in a week preferably on Sunday in between 10 A.M. to 12 Noon for six (06) months from the actual date of his release from the custody.

(v) The Petitioner shall inform the Court in seisin of the case as well as the I.O. as to his place of residence during the trial by providing his mobile number(s), current residential address, e-mail, if any, and other documents in support of proof of his residence.

The I.I.C. of Jurisdictional Police Station shall not detain the Petitioner unnecessarily after recording his attendance beyond the time as stipulated.

It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the petitioners without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. In the wake of aforesaid, the subsequent involvement of the petitioner in future any offence under NDPS Act on prima facie accusations may be treated as a ground for cancellation of bail in this case.

Violation of any of the conditions would be construed as a misuse of concession granted to the Petitioner today by this Court. It is made clear that the Court in seisin of the case, while releasing the Petitioner on bail must verify the residential proof of the local sureties by taking the help of local police, if required to ascertain the proof of residence of the local sureties and such exercise must be completed within a reasonable period of not more than one week.

Accordingly, the BLAPL stands disposed of.

Issue urgent certified copy of the order as per Rules.

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