Allahabad High Court
Anil Kumar Mishra vs Union Of India Through Central ... on 28 June, 2021
Bench: Om Prakash-Vii
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7640 of 2020
Applicant :- Anil Kumar Mishra
Opposite Party :- Union Of India Through Central Narcotics Bureau
Counsel for Applicant :- Anand Mohan Pandey,Surendra Kumar Mishra
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Om Prakash-VII,J.
This is the second bail application on behalf of the applicant - Anil Kumar Mishra involved in N.C.B. Crime No.5 of 2017 (S.T. No.100 of 2017, State Versus Rakesh Kumar and others) under section 8/21/29 N.D.P.S. Act, Police Station N.C.B., District Lucknow.
First bail application of the applicant was rejected by this Court vide order dated 17.5.2018 passed in criminal misc. bail application no.20765 of 2017.
Heard Sri Daya Shanker Mishra, learned senior advocate assisted by Sri Chandrakesh Mishra and Sri Anand Mohan Pandey, learned counsel for the applicant as well as Sri Ashish Pandey, learned counsel for the opposite party - Central Narcotics Bureau (C.N.B.).
Sri Mishra, learned senior advocate submitted that although this is the second bail application on behalf of the applicant, but in similar circumstances, third bail application of co-accused Rakesh Singh has been allowed by another Bench of this Court vide order dated 22.2.2021 passed in criminal misc. bail application no.3598 of 2020. It is next submitted that nothing has been recovered from the possession of the applicant. If entire prosecution case is taken into consideration, then also applicant was sitting in the vehicle concerned only. Recovery is shown from the possession of the co-accused. Statement of the accused recorded under section 67 of the N.D.P.S. Act can also not be taken into consideration against the applicant, as has been held by Hon'ble Supreme Court in case of Toofan Singh Versus State of Tamil Nadu, 2020 SCC Online SC 882. It is further argued that on the basis of law laid down in Toofan Singh (supra) case, co-accused Rakesh Singh has been allowed on bail. Similar question arose before this Court in criminal appeals no.2704 of 2012 and 2803 of 2012 and the said appeals were allowed acquitting the accused persons relying on the law laid down in Toofan Singh (supra) case. Next submission of learned counsel is that role assigned to the applicant is not distinguishable with the role of co-accused Rakesh Singh, who has already been enlarged on bail. It is further submitted that although, in this case, there are two accused of similar name (Rakesh Singh), but there is only evidence against the applicant in the form of statement under section 67 N.D.P.S. Act. Next submission is that call details are also not sufficient to connect the applicant with the present matter. Mandatory provisions provided under the Act for search and seizure have also not been followed in strict sense. Conscious possessions of the recovered amount can also not be presumed against the applicant, as amount said to have been recovered in the matter was recovered from the possession of co-accused. Thus, referring to supplementary affidavit and rejoinder affidavit as well as counter affidavit, it is further argued that no prima facie case is made out against the applicant. Search and seizure was made at another place from the place of incident. This fact also shows that mandatory provisions provided under the Act for search and seizure have not been followed. Learned counsel has also referred to the provisions of Sections 52-A and 55 of the Act and further argued that applicant is also entitled to be released on bail.
Sri Pandey, learned counsel appearing for the N.C.B. submitted that there are sufficient evidence against the applicant to connect him with this matter. There is no legal mandate to make search and seizure on the place of occurrence itself. Applicant cannot get any help from the law laid down by the Apex Court in Tofan Singh (supra) case, as there is recovery of huge amount from the possession of the co-accused. Accused applicant was also present on the spot for receiving the contraband. Conscious possession of the applicant shall be presumed in the present matter. All the circumstances shown by the investigating agency clearly demonstrate that applicant was involved in the present matter. Since prima facie case is made out, therefore, second bail application moved by the applicant is not liable to be allowed. There is long criminal history of the applicant. Looking to this fact also, second bail applicant cannot be allowed.
In reply, Sri Mishra, learned counsel appearing for the applicant further argued that if there is no evidence against the applicant to connect him with the present offence, nothing has been recovered from his possession, simply on the ground of criminal history the applicant cannot be detained in jail. To substantiate his argument, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Prabhakar Tewari Versus State of U.P. and others, Criminal Appeal No.152 of 2020, 2020 (2) ACR 1095 (SC) which was decided on 24.1.2020.
Having considered the rival submissions advanced by learned counsel for the parties and going through the entire record and also the law laid down by the Hon'ble Supreme Court in Toofan Singh (supra) case as well as evidence available against the applicant in this matter, the Court is of the opinion that a new ground for bail is made out and the applicant may be enlarged on bail.
The bail application is allowed.
Let the applicant Anil Kumar Mishra involved in N.C.B. Crime No.5 of 2017 (S.T. No.100 of 2017, State Versus Rakesh Kumar and others) under section 8/21/29 N.D.P.S. Act, Police Station N.C.B., District Lucknow be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file self attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.6.2021
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