Allahabad High Court
Chhotu vs State Of U.P. on 9 December, 2022
Bench: Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 90
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21876 of 2022
Applicant :- Chhotu
Opposite Party :- State of U.P.
Counsel for Applicant :- Diksha Verma,Swati Agrawal Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Shiv Shanker Prasad,J.
Heard Ms. Diksha Verma, learned counsel for the applicant and the learned counsel for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Chhotu with a prayer to enlarge him on bail in Case Crime No. 132 of 2022, under Sections 8//22 N.D.P.S. Act, Police Station-Parwat, District-Agra, during the pendency of the trial.
The first information report has been lodged by Sonu Kumar Sub-Inspector on 5th April, 2022 at 1325 hrs. against the applicant alleging that on the same day i.e. 5th April, 2022 at 09.27 a.m. when the informant and other police personnels were on patrolling they have been received an information from a Police Informer that a person was sitting under a tree near the parking of I.S.B.T. Transport Nagar, Agra for selling illegal contraband. On the said information, the informant and other Police Personnels reached the spot and after surrounding the said person (applicant herein) and apprehended him. On asking of the informant, the said person has disclosed his name as Chhotu (applicant herein) and from his pocket a mobile phone of Oppo company and total Rs. 940/- cash has been recovered. It is further alleged that when the informant asked about the bag that was kept near the said person, he said that the same was his bag, wherein alprazolam drug powder was kept for selling. On the said pointing out of the applicant, the Police recovered the said bag wherein total 1150 grams alprazolam were kept.
The learned counsel for the applicant submits that the present first information report lodged by the Police is nothing but a bundle of lie and the same has been lodged only for exploiting the applicant by indulging his name in a fake, false and frivolous case.The entire prosecution story as unfolded in the first information report is absolutely a self-made story projected by the informant. It is further submitted that though the alleged recovered contraband is above the commercial quantity and as per the chemical examination report, the same is contraband, but the said bag did not relate to the applicant, as there is no direct or indirect evidence available on record on the basis of which it can be said that the alleged bag is of the applicant. It is only on the basis of confessional statement of the applicant that the alleged bag, which was alleged to have been lying near the applicant, was of the applicant. Such confessional statement given before the Police has no evidentiary value as per Sections 25 and 26 of the Indian Evidence Act. Even otherwise, as per the prosecution case, the alleged recovery has been made from a open place but there is no public or independent witness of the said alleged recovery. The ingredients of Section 50 of the N.D.P.S. Act have also not been complied. Though the ingredients of Section 42 of the N.D.P.S. Act are alleged to have been complied with but there is no consent memo/letter of the applicant regarding Zama-Talashi (Search and Seizure).
Learned counsel for the applicant has drawn the attention of the Court to the judgment of the Apex Court in the case of Vijay Singh Chndubha Jadeja Vs. State of Gujurat reported in (2011) 2 SCC 609 wherein it has been held that so far as the obligation of the authorized officer under Section 50 of the N.D.P.S. Act is concerned, it is mandatory and requires strict compliance. The said proposition of law has been reiterated by the Apex Court in the case of Sk. Raju @ Abdul Haque @ Jagga vs. State of West Bengal reported in (2018) 9 SCC 708. Further, learned counsel for the applicant has referred the judgment of the Apex Court in the case of Sarija Banu (A) Janarthani & Others Vs. State through Inspector of Police reported in (2004) 12 SCC 266, wherein it has been opined that the compliance of Section 42 in toto is mandatory.
It is then submitted that the applicant has two criminal antecedents to his credit except the present one but the same have satisfactorily been explained in paragraph-12 of the affidavit filed in support of the present application. The applicant has no criminal history. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 5th April, 2022. As such the applicant has undergone more than eight months of incarceration.
Per contra learned A.G.A. has vehementally opposed the prayer of bail of the applicant but he could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the nature of the offence, material/evidence brought on record, complicity of the accused, severity of punishment, the submissions made by the learned counsel for the parties as well as the dictum of Apex Court in the case of Dataram Singh Versus State of U.P. and another, reported in (2018) 3 SCC 22, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(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.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
(Shiv Shanker Prasad, J.)
Order Date :- 9.12.2022
Sushil/-
