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CASE NO.:

Special Leave Petition (crl.) 2866 of 2000

PETITIONER:

BABUA @ TAZMUL HOSSAIN

Vs.

RESPONDENT:

THE STATE OF ORISSA

DATE OF JUDGMENT: 30/01/2001

BENCH:

S. Rajendra Babu & K.G. Balakrishnan.

JUDGMENT:

J U D G M E N T

RAJENDRA BABU, J. :

L...I...T.......T.......T.......T.......T.......T.......T..J

The petitioner before us has been charged that on or

about 27.07.1998 at Kilapokhari of Balasore Town abetted the

commission of the offence by (i) Azad Parvez, (ii) Batu @

Jahid Parvej and (iii) Allauddin Saha @ 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.

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 Behera, 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 Behera, 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

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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 order 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.

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.

However, attempts should be made by the State

Governments of Orissa and West Bengal to see that the trial

in the cases pending before them are facilitated by making

appropriate arrangement to have all the accused persons in

one place for purposes of trial and details should be worked

out and shall be examined by the High Court of Orissa and

the High Court of Calcutta on the administrative side and

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appropriate directions be given in that regard to enable

expeditious disposal of the case. In this case, it is,

therefore, not proper for us to enter upon the merits of the

case so far as the splitting of the charges are concerned or

refusal of the IIIrd Additional District Judge, Howrah in

not releasing the main accused to enable the trial to go on

at Balasore. Copies of this order shall be sent to the

Chief Secretary to the Government of West Bengal, Chief

Secretary to the Government of Orissa, Registrar of the High

Court of Calcutta and Registrar of the High Court of Orissa

for compliance with directions.

Subject to the observations made above, this petition

stands dismissed.