Allahabad High Court
Salman @ Kalu vs State Of U.P. on 29 August, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55288 of 2021
Applicant :- Salman @ Kalu
Opposite Party :- State of U.P.
Counsel for Applicant :- Manish Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No.-344 of 2021, under Section 8/21/22 Narcotic Drugs and Psychotropic Substances Act, P.S. -Najibabad, District Bijnor.
3. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is further submitted that even from a perusal of the F.I.R., it is apparent that recovery of alleged Narcotic Drugs and Psychotropic Substance namely Alprazolam tablets are said to have taken place from two boxes containing a total of 1080 tablets but the sample taken and sent for examination was only 60 tablets. It is submitted that the FIR does not indicate that samples have been taken from both the boxes. It is also submitted that there is no effective compliance of Section 50 of NDPS Act since the alleged compliance shown by the prosecution is said to have taken place on 05.06.2021 whereas the date of incident indicated in the FIR is 05.07.2021.
4. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application.
5. 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."
6. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, at this stage, prima facie, and subject to further evidence being led in trial, it appears that mandatory provisions of Section 50 of Narcotic Drugs and Psychotropic Substances Act have not been complied with, further more the conditions laid down in Section 37 of Narcotic Drugs and Psychotropic Substances Act are also in favour of the applicant, the F.I.R. is based primarily on the basis of extra-judicial confession which even otherwise does not appear to be admissible in evidence and there also does not appear to be any independent witness to the alleged recovery, as such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.
7. It appears that although two boxes of alleged narcotic drugs and psychotropic substances are said to have been recovered from the applicant, recovery memo shows only one strip of 60 tables being sent for examination. The quantity as such appears, prima facie, subject to further evidence being led to be under the commercial quantity. Prima facie, compliance of mandatory provision of Section 50 of NDPS Act also do not appear to have been made.
8. Accordingly bail application is allowed.
9. Let applicant, Salman @ Kalu, 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 :- 29.8.2022
Subodh/-
