Allahabad High Court
Sunil Kumar Jaiswal vs State Of U.P. on 28 June, 2021
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- BAIL No. - 8610 of 2020
Applicant :- Sunil Kumar Jaiswal
Opposite Party :- State of U.P.
Counsel for Applicant :- Manoj Kumar Misra,Pawan Kumar Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for the applicant, learned Additional Government Advocate appearing on behalf of State, through video conferencing in view of COVID-19 Pandemic and perused the record.
2. Bail application has been filed with regard to Crime No.-107 of 2020, under Section 60(2) of Excise Act, Sections 272, 419, 420, 467, 468,471, 120-B of I.P.C., relating to Police Station- Ranipur, District Behraich.
3. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the charges inflicted against him and that he has no role and involvement in the alleged incident. Learned counsel for applicant submits that out of other co-accused namely, Vinod Jaiswal was admitted to bail vide order dated 22.03.2021 in Bail Application No.7868 of 2020 while Ramu Jaiswal @ Krishana was admitted to bail vide order dated 22.03.2021 passed in Bail Application No.8255 of 2020. The bail orders are on record as Annexure No.5 to the rejoinder affidavit.
4. It is further submitted that even if the story of the prosecution is taken on its face value the liquor shop was owned by Kanhaiya Lal, as license of the same was in his name and it is also stated in the First Information Report/ recovery memo that illegal activity was going on in the shop at the behest of Kanhaiya Lal, therefore as per own version of the prosecution the main accused is Kanhaiya Lal and the role which has been assigned to the applicant was only of supply of stickers to Kanhaiya Lal.
5. It is further submitted that applicant is detained in this case in jail since 22.7.2020 and charge sheet in this matter, has already been filed and he is not having any criminal antecedent. Still the FSL report pertaining to the noxious liquor has not been obtained and it could not be said that liquor which has been recovered from the licensed liquor shop of Kanhaiya Lal was adulterated or noxious.
6. Learned A.G.A., however, opposes the prayer for bail of the applicant on the ground that the applicant has been found on the license shop of one Kanhaiya Lal preparing adulterated/ anxious liquor and therefore he is not entitled to be released on bail.
7. Having heard learned counsel for the parties and having perused the record, it is evident that the arresting police party was having prior information of alleged activity, however, no independent public witness was procured. Even after the arrest and seizure of the illicit material, not attempt has been made for the purpose of obtaining independent public witnesses. The license shop admittedly belongs to Kanhaiya Lal and he is shown to be a person at whose behest all illegal activity was going on. Charge sheet in the matter has already been filed, however, F.S.L. Report pertaining to the liquor is still awaited. The applicant is in jail in this matter since 22.7.20 and it is not stated as to why further detention of the applicant in the prison is required by the Investigating Agency. All the prosecution witnesses are police personnel and therefore the applicant would not be in a position to affect them.
8. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
9. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
10. Accordingly bail application is allowed.
11. Let applicant,Sunil Kumar Jaiswal, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 28.6.2021
Subodh/-
