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PRADHANI JANI v. STATE OF ODISHA

Orissa High Court

Jun 1, 2023

Judgment

CaseIQ

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Factual and Procedural Background

The petitioner, Pradhani Jani, is in custody for alleged offences under Sections 20(b)(ii)C, 25, 27A, and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, related to K. Nuagaon P.S. Case No.53 dated 15^th September 2020 and C.T. Case No. 48/2020. The case involves possession and transportation of 113.54 kg of contraband Ganja using an Ashok Leyland Pick-up vehicle and accompanying vehicles. Seven accused persons, including the petitioner, were arrested and charged in a charge-sheet dated 10^th March 2021.

Multiple bail applications by the accused persons were filed and decided by different Benches of the Orissa High Court at different times. Several co-accused were granted bail, while the petitioner’s bail applications were repeatedly rejected, with interim bail granted only for delay in trial completion. The petitioner’s earlier bail rejections included orders dated 14^th July 2021, 19^th May 2022, and 9^th November 2022.

On 9^th November 2022, the Court rejected the petitioner’s claim for parity with co-accused bail orders, noting those orders did not consider Section 37 of the NDPS Act. The petitioner did not challenge that order.

Subsequently, on 31^st March 2023, the Court again rejected the petitioner’s bail application citing the embargo under Section 37(1)(b) of the NDPS Act.

Aggrieved, the petitioner approached the Supreme Court, which on 15^th May 2023 quashed the High Court’s order dated 31^st January 2023 and remanded the matter back to the High Court with directions to consider all bail applications arising from the same FIR by a single Judge to avoid inconsistent orders, and to pass a fresh order within one month.

Legal Issues Presented

Whether the petitioner is entitled to bail under the provisions of Section 37 of the NDPS Act, despite the commercial quantity of contraband involved and previous bail rejections.
Whether the principle of parity with co-accused who have been granted bail applies in the petitioner’s case, given the absence of consideration of Section 37 in those orders.
Whether the delay in trial and the petitioner’s custodial period justify dispensing with the rigour of Section 37 of the NDPS Act for bail purposes.
Whether the High Court should consolidate bail applications arising out of the same FIR before a single Judge to avoid contradictory bail orders.

Arguments of the Parties

Petitioner’s Arguments

The petitioner has been in custody since 15^th September 2020, and only six witnesses have been examined so far, indicating delay in trial.
Copies of depositions show that three independent witnesses turned hostile and did not support the prosecution case.
The petitioner’s bail should be considered on the ground of parity with co-accused who have been released on bail.

Opposite Party’s Arguments

The petitioner has no criminal antecedents and is not involved in any other case.
Reliance on the Supreme Court’s decision in Dheeraj Kumar Shukla v. State of U.P., where bail was granted despite commercial quantity seizure due to absence of antecedents and prolonged custody.
However, the provisions of Section 37 of the NDPS Act generally apply and the petitioner’s bail cannot be granted merely on parity with co-accused whose bail orders did not consider Section 37.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. Md. Nawaj Khan, (2021) 10 SCC 100	Test for granting bail under NDPS Act requires reasonable grounds to believe accused not guilty and unlikely to commit offence on bail.	The Court applied the principle that both conditions must be cumulatively satisfied before granting bail under Section 37 of the NDPS Act.
Union of India v. Rattan Mallik Alias Habul, (2009) 2 SCC 624	Mandatory requirements of Section 37 of NDPS Act for bail include opportunity to Public Prosecutor and satisfaction on accused’s guilt and likelihood of reoffence.	The Court emphasized that ignoring Section 37’s mandatory conditions renders bail orders unsustainable.
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798	Definition and scope of “reasonable grounds” in the context of bail under NDPS Act.	Referenced to explain that “reasonable grounds” means substantial probable cause beyond prima facie evidence.
Dheeraj Kumar Shukla v. State Of U.P., SLP (Crl.) No.6690 of 2022	Conditions of Section 37 of NDPS Act can be dispensed with in absence of criminal antecedents and prolonged custody even in commercial quantity cases.	The Court relied on this precedent to justify dispensing with Section 37 rigour due to petitioner’s long custody and lack of antecedents.

Court's Reasoning and Analysis

The Court noted that previous bail orders granted to co-accused did not consider Section 37(1) of the NDPS Act, which mandates stringent conditions for bail in cases involving commercial quantities of narcotics. The Supreme Court’s ruling in Union of India v. Md. Nawaj Khan and Union of India v. Rattan Mallik requires the Court to be satisfied on two cumulative conditions: reasonable grounds to believe the accused is not guilty and that the accused is unlikely to commit an offence while on bail.

Given that the trial is still pending and only a few witnesses have been examined, some of whom turned hostile, the Court considered the petitioner’s prolonged custody since September 2020 and the delay in trial completion. The Court also took into account the Supreme Court’s directive to avoid conflicting bail orders by coordinating consideration of bail applications arising from the same FIR.

Relying on the recent Supreme Court decision in Dheeraj Kumar Shukla v. State Of U.P., the Court found that the petitioner’s lack of criminal antecedents and extended custody justified dispensing with the rigour of Section 37 of the NDPS Act at this stage. The Court emphasized that this dispensation is without expressing any opinion on the merits of the case.

Holding and Implications

The Court allowed the petitioner’s bail application and directed his release on bail subject to furnishing bail bonds as per the satisfaction of the Trial Court. Conditions include that the petitioner shall not be involved in any other offence while on bail and must attend the trial court on all dates fixed.

The direct effect of this decision is the petitioner’s release on bail despite the commercial quantity involved, based on prolonged custody, delay in trial, and absence of antecedents. No new precedent was established, as the Court relied on existing Supreme Court authorities and followed the remand instructions. The Court also reinforced the need for consistent consideration of bail applications arising from the same FIR by a single Judge to avoid anomalous bail orders.

Show all summary ...

BLAPL No.11629 of 2022 Page 1 of 10

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No.11629 of 2022

(In the matter of an application under Section 439 of the Code of Criminal Procedure)

Pradhani Jani …. Petitioner Versus

State of Orissa …. Opposite Party

Advocate(s) appeared in this case:-

For Petitioner : Mr. S.G. Das, Advocate For Opposite Party : Mr. K. Gaya, A.S.C.

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

1^st June, 2023 B.P. Routray, J.

1. Present Petitioner is in custody for alleged commission of offences under Sections 20(b)(ii)C, 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act in connection with K. Nuagaon P.S. Case No.53 dated 15^thSeptember, 2020 corresponding to

C.T. Case No. 48/2020 pending before the learned Special Judge - cum - Addl. Sessions Judge, Baliguda for possession and transportation of contraband Ganja weighing 113Kg. 540grams in an Ashok Leyland Pick-up vehicle escorted by one Bajaj Pulsar Motorcycle and one Tata Indica Car. The Charge-sheet dated 10^thMarch 2021 has been submitted in the meantime indicting offences under Sections 20(b)(ii)C, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act. Seven accused persons including present Petitioner were arrested.

2. All the accused persons moved for bail under Section 439 Cr.P.C before this Court in different bail applications at different points of time. The bail applications were dealt by different Benches of this Court. Co-accused persons namely, Simanchal Gouda, Banabas Jena, Situnu Swain and Gopabandhu Digal have been released on bail by order dated 16^thAugust 2021, 9^thAugust 2021, 27^thApril 2022 and 4^th May 2022 in BLAPL No. 7306/2020, 8040/2020, 8220/2020 and 8511/2020 respectively. In respect of co-accused Santosh Gouda, his prayer for bail was rejected initially on 11^thJanuary 2022 in BLAPL No. 8291/2020, but subsequently he is released on bail in BLAPL

No.3935/2022 by order dated 4^thAugust 2022. The prayer for bail by the present Petitioner (Pradhani Jani) and another co-accused namely, Ranjan Jani@Tuna Jani was dealt by this Bench earlier. The prayer for bail of Ranjan Jani@Tuna Jani, the co-accused, was rejected by this Bench on 14^thJuly 2021 in BLAPL No. 7144/2020, on 27^thAugust 2021 in BLAPL No. 6351/2021 and on 13^thJuly 2022 in BLAPL No. 9826/2021, though he was granted interim bail for a period of three months for delay in completion of trial.

The prayer for bail of the Petitioner was earlier rejected on 14^th July 2021 in BLAPL No. 7149/2020, on 19^thMay 2022 in BLAPL No. 6352/2021 (though he was granted interim bail for a period of three months for delay in completion of trial), and on 9^thNovember 2022 in BLAPL No.8474 of 2022.

While considering the prayer for bail of the Petitioner in BLAPL No.8474 of 2022, a submission was made claiming parity as some of the co-accused persons have been released on bail. This Court, considering the effects of orders passed in BLAPL No.7306 of 2020, 8220 of 2020, 8040 of 2020 and 8511 of 2020 in favour of co-accused persons, rejected such contention of the petitioner by order dated 9^th

November 2022 stating that none of the bail orders of co-accused persons deal with the provisions contained in Section 37 of the N.D.P.S. Act and as such, those orders cannot be considered as the ground of parity in respect of the present Petitioner. The Petitioner did not choose to challenge said order dated 9^thNovember 2022.

3. Subsequently, the Petitioner filed the present bail application on 22^ndNovember 2022 and this Court by order dated 31^stMarch 2023 rejected his prayer for bail keeping in view the embargo contained in Section 37(1)(b) of the N.D.P.S. Act.

4. Against the rejection of his prayer for bail passed in order dated 31^stJanuary 2023, the Petitioner approached Hon'ble Supreme Court in Criminal Appeal No.1503/2023 (arising out of SLP (Crl) No.3241/2023). The Supreme Court by order dated 15^thMay 2023 remanded the matter back to this Court with directions to pass fresh order. The relevant portion of the order of Supreme Court is reproduced below:

"3. The perusal of the paper books would reveal that various applications filed by various accused have been entertained by different learned Single Judges of the same High Court. In many of the High Courts, the practice followed is that the applications arising out of the same FIR should be placed before one Judge. However, it appears that it is not the practice in Orissa High Court. In the present case, we have

come across orders passed by at least three different Judges in the applications of various accused arising out of same FIR.

4. Such a practice leads to anomalous situation. Certain accused are granted bail whereas certain accused for the very same crime having similar role are refused bail.

5. We, therefore, quash and set aside the impugned order dated 31.01.2023 and remand the matter back to the High Court. The High Court is requested to consider the effect of the orders passed by the other coordinate Benches and pass orders afresh. The same shall be done within a period of one month from today.

6. The Registrar (Judicial) of the Registry of this Court is directed to forward a copy of this order to the Registrar General of the Orissa High Court, who is requested to take note of the aforesaid and consider passing appropriate orders so that contrary orders in the same crime are avoided."

5. It is true that none of the orders, passed in BLAPL No.7306 of 2020, 8220 of 2020, 8040 of 2020, 8511 of 2020 and BLAPL No.3935 of 2022 granting bail to the co-accused persons are dealing with the provisions contained in Section 37(1) of the N.D.P.S. Act. The Hon'ble Supreme Court in Union of India v. Md. Nawaj Khan, (2021) 10 SCC 100, while dealing with the prayer of cancellation of bail of the Respondent who was accused of the offences under the N.D.P.S Act for allegedly possessing / transporting 3 kg. 300 gram Morphine, have stated that the test which the High Court is required to apply while granting bail is whether there are reasonable grounds to believe that the

accused has not committed an offence and whether he is likely to commit any offence while on bail (see para 23). In Union Of India v. Rattan Mallik Alias Habul ., (2009) 2 SCC 624, the Supreme Court have observed that the impugned bail order is unsustainable having been passed ignoring mandatory requirements of Section 37 of the N.D.P.S. Act. The relevant observations are reproduced below:-

"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".

13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union Of India v. Shiv Shanker Kesari . (2007) 7 SCC 798 ). Thus, recording of

satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

xx xx xx xx xx xx xxxxx

17. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained. Accordingly, the appeal is allowed and the matter is remitted back to the High Court for fresh consideration of the application filed by the respondent for suspension of sentence and for granting of bail, keeping in view the parameters of Section 37 of the NDPS Act, enumerated above. xxxx"

6. Further though in order dated 4^thAugust 2022, passed in BLAPL No.3935 of 2022 in respect of accused Santosh Gouda, it was submitted that trial has not yet commenced, but the fact remains that P.W.1 and 2 were examined on 11^thJuly 2022, and P.W. 3, 4 and 5 were examined on 29^thJuly 2022. Therefore, the orders passed in respect of other co-accused persons releasing them on bail involving offences relating to commercial quantity and punishable under Section 20(b)(ii)C of the N.D.P.S. Act cannot be taken in favour of the Petitioner on the ground of parity.

7. It is submitted on behalf of the Petitioner that he is inside custody since 15^thSeptember 2020 and in the meantime only six witnesses have been examined in course of trial. The copies of

depositions of such witnesses have been produced for perusal of this Court. It is seen that P.W.1, 2 and 6, independent witnesses of seizure, did not support prosecution case and have turned hostile.

8. Mr. Gaya, learned ASC submits upon instructions that the Petitioner is not involved in any other case except the present one. In other words the Petitioner has no criminal antecedent. The Supreme Court in a recent case in SLP (Crl.) No.6690 of 2022 (Dheeraj Kumar Shukla v. State Of U.P.), involving seizure of 92 Kgs and 65 Kgs of Ganja from two vehicles and the accused was in custody since 24^thJune 2020, have held that in absence of criminal antecedents and the fact that the Petitioner was in custody for 2½ years, the conditions of Section 37 of the NDPS Act can be dispensed with. The relevant observations are reproduced below:-

"3. It appears that some of the occupants of the 'Honda City' car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.

4. For the reasons stated above but without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds of the satisfaction of the Trial Court."

9. In the instant case, this court by order dated 9^thNovember, 2022 passed in BLAPL No.8474 of 2022 had directed to complete the trial expeditiously, preferably by end of April 2023. As submitted on behalf of the Petitioner, the trial is still pending at the stage of examination of further prosecution witnesses. Considering the statements of the witnesses so far examined i.e. P.W.1 to 6, as per the copies produced, the period of custody of the Petitioner and delay in completion of trial, and the direction of the Supreme Court dated 15^thMay, 2023 passed in Criminal Appeal No.1503/2023 (arising out of SLP (Crl.) No.3241/2023) and the observations made in the case of Dheeraj Kumar Shukla (supra), I am inclined to release the Petitioner on bail with satisfaction that the rigour of Section 37 of the NDPS Act can be dispensed with at this stage, particularly when the trial is not completed within the time stipulated by this court earlier.

10. Accordingly, it is directed to release the Petitioner on bail in connection with K.Nuagaon P.S. Case No.53 dated 15^thSeptember, 2020 corresponding to C.T. Case No. 48/2020 on such terms and

conditions to be fixed by the learned trial court including the condition that the Petitioner shall not be involved in any other offence while on bail and shall attend the trial court on each date fixed.

11. The BLAPL is disposed of.

(B.P. Routray) Judge

C.R.Biswal, Secy.