Allahabad High Court
Amit Singh And Another vs Union Of India on 15 March, 2021
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36326 of 2020
applicants :- Amit Singh And Another
Opposite Party :- Union of India
Counsel for applicants :- Vivek Kumar Singh,Ashish Agrawal
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Vivek Kumar Singh,J.
Counter affidavit filed by learned counsel for the department as well as by learned A.G.A. are taken on record.
Heard Sri V.P. Srivastava, learned Senior counsel assisted by Sri V.K. Singh, learned counsel for the applicants and Sri Sanjay Singh, learned AGA-I for the State and perused the material placed on record.
It is contended by the learned counsel for the applicants that 278.160 Kgs. Ganja is alleged to have been recovered from two vehicles from the joint possession of the applicants and co-accused persons, when in fact no such recovery has taken place. It is next contended that it is not known as to how the weighment of allegedly recovered substance was done and in excess to the commercial quantity has been found. There is no independent witness of the alleged recovery. Learned counsel for the applicants further contended that mandatory provisions of N.D.P.S Act has not been complied with in the present case. At the stage of consideration of bail it cannot be decided whether offer given to the applicants and their consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non-compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. The applicants have no criminal history. It is also submitted that the applicants are in jail since 6.7.2019 and they undertakes that they will not misuse liberty, if granted.
Learned counsel for the department as well as learned A.G.A. have opposed the prayer for bail by contending that the innocence of the applicants cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicants do not deserve any indulgence. In case the applicants are released on bail they will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of NDPS Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused are not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused are not guilty. In support of his contention learned counsel for the department placed his placed his reliance on the judgement of Hon'ble Apex Court in the matter on Union of India Vs. Ram Samujh reported as 1999 (9) SCC 429and Union of India Vs. Rattan Mallik Alias Habul reported as (2000) 1 SCC 831.
However the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused are not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicants, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let the applicants (i) Amit Singh (ii) Utsav Singh involved in Case Crime No.28 of 2019, under Section 8/20, 27(A), 29/60(3) of N.D.P.S. Act, Police Station Sarpatahan, District Jaunpur be released on bail on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following condition:-
(i) The applicants shall remain present before the trial court on each date fixed, either personally or through their 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;
(ii) In case, the applicants misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicants fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iii) The applicants 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against them in accordance with law.
Order Date :- 15.3.2021
Dev/-
