Allahabad High Court
Brijesh Yadav vs Union Of India on 26 August, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 18.08.2022
Delivered on 26.08.2022
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34593 of 2020
Applicant :- Brijesh Yadav
Opposite Party :- Union of India
Counsel for Applicant :- Anil Kumar Rai,Bheshaj Puri,Durgesh Kumar Singh
Counsel for Opposite Party :- Ashish Pandey,Pranay Krishna
Hon'ble Siddharth,J.
Heard Sri O. P. Singh, learned Senior Advocate, assisted by Sri Intrajeet Singh,learned counsel for the applicant and Sri Ashish Pandey, learned counsel for the opposite party.
This bail application has been preferred by the accused-applicant, Brijesh Yadav, who is involved in Case Crime No. N.C.B- 26 of 2018, under Section 8/20/29 N.D.P.S. Act, Police Station- N.C.B. Lucknow, District- Azamgarh.
There is allegation against the applicant that he was found in possession of 77 packets containing 5kg 200 grams of ganja each total weight 400.400 kg.
Learned counsel for the applicant submits that total 10 lots of the recovered ganja were prepared. 9 lots contained 8 packets each and 10th lot contained five packets. Two samples from each lot of 24 grams each were drawn and kept in sealed cover. The statement of the applicant and other co-accused were recorded under Section 67 of the NDPS Act. The applicant is in jail since 02.11.2018. As yet only one prosecution witness has been examined. There is no possibility of early conclusion of trial. The applicant has no criminal history and is not a habitual offender. The recovery was shown from the joint possession of three accused persons and not from the applicant alone.
Sri Ashish Pandey, learned counsel for the NCB, has vehemently opposed the bail application. He has submitted that the applicant has been found in possession of very huge amount of ganja. He has been found in conscious possession of the alleged contraband. In the chemical examination report the recovered substance has been found to be ganja. The bail application of co-accused, Ravinder Yadav, has been rejected by the order dated 15.04.2020 vide Crl. Misc. Application No.27553 of 2019 and therefore, the applicant is not entitled to be enlarged on bail.
After hearing rival contentions, this court finds the applicant has allegedly been found in possession of huge amount of ganja but he is not a habitual offender. Along with him two other co-accused have been implicated in this case. Bail application of co-accused, Ravindra Yadav, was rejected on 15.04.2020. More than two years have passed since rejection of the bail application of co-accused, Ravindra Yadav. It is true that the allegation against the applicant are serious but being his first implication and the unsatisfactory progress of trial, this court is inclined to enlarge the applicant on bail.
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.
Considering the facts of the case and keeping in mind, 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.
Let applicant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
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 misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 26.8.2022
SS
