BABUA TAZMUL HOSSAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner before us has been charged that on or about 27-7-1998 at Kilapokhari of Balasore Town abetted the commission of the offence by (i) Azad Parvez, (ii) Batu alias Jahid Parvej and (iii) Allauddin Saha alias Sk. Allauddin or was party with them to a criminal conspiracy to commit an offence of possessing and/or sale cannabis ganja and manufactured drugs punishable under Chapter IV of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and thereby committed an offence punishable under Section 20(b) and Section 21 read with Section 29 of the Act within the cognizance of the Special Judge at Balasore.

(2.) The gist of the case is that a Special Case No. 63 of 1998 was filed in which one Md. Diwan was apprehended by Subrat Kumar Behra, SI of Police and from his possession, as is alleged, 500 gms. of 'ganja' was seized for which this Special Case No. 63 of 1998 was instituted and the trial therein was going on in the Court of Special Judge, Balasore. It is alleged that Md. Diwan disclosed before the arresting authority that he works for Azad Parvez who does the business of contraband articles and he knows the place where Azad Parvez had kept all the contraband articles. On the basis of this report, house of Azad Parvez was searched and the contraband articles were also seized. A separate FIR having been lodged on 27-7-1998 another case was registered pursuant to which Special Case No. 64 of 1998 was lodged before the Special Judge, Balasore. Subrat Kumar Behra, SI of Police recorded a statement four months after the institution of Special Case No. 63 of 1998 on 23-11-1998 that Md. Diwan stated that the petitioner in this case is also working for Azad Parvez. On recording such statement the petitioner was also implicated in the case and was arrested and is facing the trial, as stated earlier. There are 10 accused persons in the case, but only 6 accused persons are arrested and 4 are stated to be absconding. In these circumstances, the Special Judge, Balasore, pursuant to an order made on 24-3-1999, splitted the case into two cases as Special Case No. 64 of 1998 and 64A of 1998. On 30-3-1999 charges were framed against the six accused persons, including the petitioner for having committed offence under Section 20(b) and Section 21 read with Section 29 of the Act and, since four other accused persons were absconding, the charges could not be framed against them. Bail application filed by the petitioner on several grounds stood rejected by orders dated 8-9-1999 and 15-1-2000. The Orissa High Court suo motu took cognizance of the case on the basis of a news report and by an order made on 30-7-1999 set aside the orders of the Special Judge, Balasore made on 24-3-1999 splitting the case into two cases. It is also brought to the notice of the Court that Azad Parvez is facing trial in TR 8 of 1998 before the IIIrd Additional District Judge, Howrah and was lodged in the Howrah jail. The Special Judge, Balasore requested the IIIrd Additional District Judge, Howrah to make available the accused Azad Parvez to Balasore for purposes of trial in the present case. However, the IIIrd Additional District Judge, Howrah declined to do so on account of difficulty in securing him back in his Court. The said Azad Parvez is also facing another trial in the Special Court at Alipore in Special Case No. 4/NCB/Cal/99 and in Special Court at Berhampore, Murshidabad in GR Case No. 485 dated 16-6-1989. Out of 10 accused persons only nine accused persons are in custody and, one accused person Rokia Sultana is still absconding. Nine witnesses have been examined in this case and it is claimed that none of the witnesses have implicated the petitioner as an accomplice of Azad Parvez and all that PW 5 said is that he had seen Azad Parvez visiting the house of the petitioner and it is claimed that no other witness has so far implicated the present petitioner in any manner.

(3.) In view of Section 37(1)(b) of the Act unless 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 alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that 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 society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.