Allahabad High Court
Amit Kumar Singh vs Union Of India on 22 August, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on :- 18.08.2022
Delivered on :- 22.08.2022
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35016 of 2021
Applicant :- Amit Kumar Singh
Opposite Party :- Union of India
Counsel for Applicant :- Suraj Kumar Singh,Nipun Singh,Vivek Chaubey
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Siddharth,J.
1. Despite time granted to Sri Ashish Pandey, learned counsel for the opposite party on 20.09.2021, no counter affidavit has been filed.
2. Heard Sri Nipun Singh, learned counsel for the applicant, Sri Ashish Pandey, learned counsel for the opposite party and perused the material placed on record.
3. The instant bail application has been filed on behalf of the applicant, Amit Kumar Singh, with a prayer to release him on bail in Case Crime No. 17 of 2020, under Sections 8 (C), 20, 29 NDPS Act, Police Station- Rohaniya, District- Varanasi, during pendency of trial.
4. There is allegation against the applicant that he was driver of the truck wherefrom 760 kg of illegal ganja has been recovered.
5. Learned counsel for the applicant submits that the applicant was only driver of the vehicle. He has been falsely implicated in this case. Nothing incriminating was recovered from his person. He is aged about 21 years only and has no criminal history to his credit. The owner of the vehicle is Ram Rabindra Singh and permit holder is Ashok Kumar Golui. His confessional statement u/s 67 of the NDPS Act cannot be read against him at this stage. It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his 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 procedure of sampling adopted is in violation of Standing Order/Instruction No. 1 of 1989 dated 13.06.1989 issued by the Government of India under Section 52A of NDPS Act. There is no evidence of compliance of Section 42 of NDPS Act by the other side. The applicant is languishing in jail since 03.07.2020. In case he is enlarged on bail, he will not misuse the liberty of bail.
6. Sri Ashish Pandey, learned counsel for the opposite party has vehemently opposed the bail application and has submitted that there were public witnesses of the alleged recovery. Two vehicles were involved and the applicant was driver of one of the vehicles. 760 gms of ganja was recovered from the truck being driven by the applicant regarding which there is no satisfactory explanation.
7. 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 is 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.
8. After hearing the rival contentions, this Court finds that from the material brought on record, there is no evidence of drawing of any sample from the recovered contraband in duplicate as per Standing Order/Instruction No. 1 of 1989 dated 13.06.1989 issued by the Government of India under Section 52A of NDPS Act. In the search-cum-seizure memo, there is no mention of drawing of any sample from the lots of the contraband recovered. It is only stated that samples shall be drawn with the permission of the Court. The applicant does not appears to be a habitual offender.
9. 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-applicant, 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.
10. Let the applicant involved in the aforesaid 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 that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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.
(v) 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.
11. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
12. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 22.08.2022
Rohit
