Allahabad High Court
Ballu Khan And Another vs Narcotics Control Bureau B-912 ... on 25 July, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29957 of 2021
Applicant :- Ballu Khan And Another
Opposite Party :- Narcotics Control Bureau B-912 Sector-A,Lucknow
Counsel for Applicant :- Devi Dayal
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Siddharth,J.
Heard learned counsel for applicants, learned A.G.A. for the State and perused the record.
This bail application has been preferred by the accused-applicants, Ballu Khan and Shakil Khan, who are involved in N.C.B. Case Crime No.14 of 2020, under Section 8/18/29 N.D.P.S. Act, Police Station- N.C.B. (Lucknow), District- Allahabad.
There is allegation of recovery of 15.2 Kg of Opium. 8 packets were recovered but the sample has not been drawn from all the packets recovered.
Learned counsel for the applicants has submitted that applicants have been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery and there is no public witness of the alleged recovery. 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 applicants 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 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act. The applicants have no criminal history. He is in jail since 15.6.2020 and he undertakes that he will not misuse liberty, if granted.
Learned A.G.A. has opposed the prayer for bail by contending that the innocence of the applicants cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicants do not deserve any indulgence. In case the applicants are released on bail he will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of NDPS Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.
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.
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-applicants, 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 applicants be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against their under Section 229-A of the Indian Penal Code;
(ii) In case, the applicants misuse the liberty of bail and in order to secure their 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 their, in accordance with law, under Section 174-A of the Indian Penal Code.
(iii) The applicants 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and proceed against their in accordance with law.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicants and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 25.7.2022
Ruchi Agrahari
