Allahabad High Court
Firoz vs State Of U.P. on 20 December, 2022
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 74
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33387 of 2022
Applicant :- Firoz
Opposite Party :- State of U.P.
Counsel for Applicant :- Anurag Upadhyaya
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
Heard Sri Anurag Upadhyaya, learned counsel for the applicant, Sri Vishwa Deepak Mishra, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant with a prayer to release him in Case Crime No. 0313 of 2022, registered under Sections 8/22 of NDPS Act, Police Station Muradnagar Nagar, District Ghaziabad during pendency of the trial.
Allegation in the FIR against the applicant is that on 02.06.2022 contraband alprazolam powder of 110 gm has been recovered from his possession.
Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The alleged recovery in which the applicant has been planted, is false and fabricated. No public witness of the alleged recovery. The alleged recovery made from the possession of the applicant is slightly above from the commercial quantity as prescribed under the N.D.P.S. Applicant has been implicated only on account of three previous cases pending against him. He next submitted that co-accused, namely, Mahtab has been granted bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No.31783 of 2022 vide order dated 01.08.2022 and the case of the applicant is identical to the co-accused, hence, the applicant is also entitled for bail on the ground of parity. The applicant is languishing in jail since 03.06.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail and co-operate in trial. 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.
Learned A.G.A. has opposed the bail prayer of the applicant and submitted that applicant has criminal history as well as recovered contraband substance is above the commercial quantity, hence, the applicant is not entitled for 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 the applicant, Firoz, who is 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(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 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 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 20.12.2022
Nitin Verma
