Case Title – Kusha Duruka vs. The State of Odisha
Case No. – Criminal Appeal No. 303 of 2024
Dated on – 19th January, 2024
Quorum – Hon’ble Justice Vikram Nath and Hon’ble Justice Rajesh Bindal
Facts of the Case –
The appellant was arrested on 03.02.2022 for his alleged involvement in a case under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, related to the possession and transportation of 23.8 kg of Ganja. Following his arrest, his initial bail application was rejected by the Sessions Judge-cum-Special Judge, Malkangiri, on 04.02.2022. He subsequently filed a bail application (BLAPL No. 1855 of 2022) before the High Court, assigned to Judge ‘A’, which was also denied on 06.03.2023. During this period, his co-accused, Gangesh Kumar Thakur, successfully obtained bail on 17.01.2023 from Judge ‘B’.
Following the High Court’s denial, the appellant filed a Special Leave Petition (SLP) before the Supreme Court on 21.07.2023. While the SLP was pending, the appellant filed a second bail application, which was rejected by the Sessions Judge on 15.09.2023. Unaware of the SLP, the appellant filed another bail application before the High Court, which was granted on 11.10.2023 by Judge ‘B’.
On 06.12.2023, the appellant’s counsel informed the Supreme Court of the High Court’s recent bail order. The Supreme Court noted omissions in the High Court’s order regarding the appellant’s first bail application and the pending SLP. Consequently, the Supreme Court requested records and explanations from the involved parties, revealing that the High Court was not apprised of the earlier bail rejection or the SLP. This led to procedural discrepancies highlighted in the Supreme Court’s subsequent directives for handling similar future cases.
Legal Provision –
- Section 439 of CrPC, 1973
Contentions of the Appellant –
The appellant contended that his prolonged detention since 03.02.2022, in connection with the alleged possession and transportation of 23.8 kg of Ganja, warranted the grant of bail. He argued that the rejection of his initial bail application by the Sessions Judge and subsequently by the High Court (BLAPL No. 1855 of 2022) was unjust, especially in light of the fact that his co-accused, Gangesh Kumar Thakur, had been granted bail on 17.01.2023 under similar circumstances. The appellant maintained that the principle of parity should be applied to his case, entitling him to bail on the same grounds. Furthermore, he asserted that his second bail application, granted by the High Court on 11.10.2023, should stand, despite the procedural lapses in disclosing the pendency of his SLP before the Supreme Court and the rejection of his earlier bail application. He emphasized that the non-disclosure was not intentional and did not warrant the cancellation of his bail. The appellant sought relief from the Supreme Court, arguing that the continuation of his detention was disproportionate and unjustified, given the circumstances and the bail granted to his co-accused.
Contentions of the Respondent –
The respondent contended that the appellant’s bail should not be granted due to the serious nature of the allegations under the Narcotic Drugs and Psychotropic Substances Act, 1985, specifically Section 20(b)(ii)(C). They argued that the appellant was in conscious possession of a substantial quantity of Ganja, demonstrating a prima facie case against him. The respondent highlighted that the appellant’s initial bail application had been rightly rejected by both the Sessions Judge and the High Court, underscoring that no new circumstances justified the reconsideration of bail. Moreover, they pointed out procedural irregularities, noting that the appellant failed to disclose the pendency of his Special Leave Petition (SLP) before the Supreme Court when filing the second bail application before the High Court. This omission misled the High Court into granting bail on 11.10.2023 without considering the prior rejection and ongoing SLP. The respondent also emphasized that granting bail under these circumstances would undermine judicial propriety and the due process, as it would reward the appellant’s failure to disclose critical information, thus setting a detrimental precedent. Consequently, the respondent urged the Supreme Court to dismiss the appellant’s plea and uphold the legal process integrity.
Court Analysis and Judgement –
The Supreme Court’s analysis focused on procedural integrity and judicial propriety in handling bail applications. The Court noted that the appellant had failed to disclose the pendency of his Special Leave Petition (SLP) before the Supreme Court while filing his second bail application before the High Court. This omission resulted in the High Court granting bail without being aware of the prior rejection and the ongoing SLP. The Court found that the appellant’s conduct in not disclosing critical information misled the judicial process, undermining the integrity and consistency of judicial proceedings.
The Court emphasized the importance of transparent and accurate disclosures in bail applications to avoid conflicting orders and ensure proper judicial review. It also reviewed the affidavit and reports from the Odisha Government and the High Court, which confirmed that the High Court was not informed about the pending SLP or the previous bail application dismissal. The Supreme Court underscored the necessity of listing subsequent bail applications before the same judge who decided the earlier applications, as per the Standing Order No. 2 of 2023 from the Orissa High Court.
While recognizing the procedural lapses and the appellant’s misleading actions, the Supreme Court chose not to cancel the granted bail but imposed a token cost of ₹10,000 on the appellant, payable to the Mediation and Conciliation Centre attached to the Orissa High Court within eight weeks. The Court dismissed the appeal as infructuous, directing the High Courts to correct procedural systems to prevent such issues in the future. A copy of the judgment was ordered to be sent to all High Courts for appropriate action, and the original record was returned to the High Court.
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Judgement Reviewed by – Anurag Das
