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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.