SAROJ BAG Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner has moved this Court for the fourth time under Section 439, Code of Criminal Procedure for grant of bail. Earlier the prayer of the Petitioner for bail was rejected in Criminal Misc. Case No. 1732 of 2001 vide order dated 14.4.2001, Criminal Misc. Case No. 7156 of 2001 disposed of on 19.9.2002 and Criminal Misc. Case No. 3397 of 2002 disposed of on 12.9.2002.

(2.) FROM the record it appears that Bargarh P.S. Case No. 108 dated 26.6.2000 has been registered for commission of offence under Section 20(b) of the N.D.P.S. Act. It further appears that on 26.6.2000 at about 4.30 A.M. a Tata Sumo vehicle was coming from Haladipali square and crossed the toll gate on National Highway No. 6 on the wrong side at a very high speed. The police officers who were on patrol duty smelt of Ganja and dettol and on suspicion they stopped the vehicle in front of a private bus stand and found the present Petitioner was driving the vehicle and another person was sitting inside the vehicle. On search in presence of the Executive Magistrate, Ganja weighing 181 kg. 300 grams kept in 78 packets were found stored in the vehicle and the same was seized. Accordingly, the case was registered under Section 20(b) of the N.D.P.S. Act and the Petitioner was taken to custody. On all earlier occasions the prayer of the Petitioner was rejected on merits. The present application has been filed on the basis of a decision of the Apex Court in the case of Supreme Court Legal Aid Committee Representing Under -trial Prisoners v. Union of India and Ors. reported in, 1994 CAR 364.

(3.) THERE is no dispute that the Petitioner was the driver of the vehicle which was carrying 181 kg. 300 grams of Ganja kept in 78 packets and accordingly the case has been registered for commission of offence under Section 20(b) of the N.D.P.S. Act. There is also no dispute that the Petitioner has spent more than two and half years as an under -trial prisoner. The question that arises for consideration is whether in the fact of this case the guidelines given by the Apex Court in the judgment referred to above are applicable. On a careful perusal of the judgment, it appears that the petition was moved under Article 32 of the Constitution of India by the Supreme Court Legal Aid Society complaining delay in disposal of cases under the N.D.P.S. Act involving foreigners. The reliefs claimed in the petition included a direction to treat further detention of foreigners, who were languishing in jails as under trials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by the counsel that their case be given priority over others. The Apex Court observed that no distinction can be made between foreigners and Indian nationals so far as the offence and the delay in trial is concerned. Accordingly, the petition was amended and the Apex Court on consideration of the entire material available before it directed that where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the concerned Special Judge with two sureties for like amount. Relying on the aforesaid direction of the Apex Court, Shri Ray submitted that on the date of commission of the offence the maximum punishment of imprisonment prescribed in the statute was five years and, therefore, the Petitioner having remained as under -trial prisoner for more than two and half years, he is entitled to bail. On reading of the entire judgment, it appears that the Apex Court considered the situation in the State of Maharashtra and after obtaining all the information about the number of cases pending and availability of Special Courts has observed and directed release of under -trial prisoners on fulfilling the terms and conditions mentioned in the judgment. The above observation of mine gets support from the judgment of the Apex Court as observed in paragraph -16 of the judgment.