Allahabad High Court
Nazir Second Bail vs State Of U.P. on 4 May, 2022
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8595 of 2021
Applicant :- Nazir Second Bail
Opposite Party :- State of U.P.
Counsel for Applicant :- Jalaj Kumar Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
Heard Sri Jalaj Kumar Gupta, learned counsel for the applicant as well as Sri J.S. Tomar, learned AGA for the State and perused the material available on record.
By means of the present second bail application, the applicant- Nazir seeks bail in Case Crime No.28 of 2021, under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Nighasan, District- Kheri, during the pendency of trial. His first bail application was rejected for want of prosecution vide order dated 2.8.2021 passed in Bail No.3517 of 2021.
As per the prosecution story, the applicant is said to have been arrested on 19.1.2021 along with 307 gm of 'Alprazolam powder'.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. No incriminating article has been recovered from the possession of the applicant. There is no independent witness to support the prosecution version. There is no chemical analyst report that the alleged recovery is a contraband article. There is no compliance of Section 42, 50 & 57 of NDPS Act with regard to search and seizure. Learned counsel has relied upon the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand reported in (2018) 18 SCC 380 in which the Apex Court has held that section 50 of the NDPS Act mandatorily required search of the suspect/accused to be carried out in the presence of a magistrate or Gazetted officer, even if such a suspect/accused had waived the right to be taken to a magistrate or Gazetted officer. The applicant is languishing in jail since 19.1.2021 and he deserves to be released on bail. In case, the applicant is released on bail he will not misuse the liberty of bail.
Per contra, learned A.G.A. has opposed the bail prayer of the applicant on the ground that the applicant has a long criminal history of 12 cases and also the recovered contraband is of commercial quantity.
Learned counsel for the applicant has stated that the said criminal history of the applicant has been explained in the affidavit annexed with the bail application as well as in the supplementary affidavit. Out of 12 cases, the applicant is in jail in two cases.
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 (supra), 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. The bail application is allowed.
Let the applicant- Nazir, who is involved in the aforementioned 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 file an undertaking to the effect that he shall not seek any adjournment on the date 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 IPC.
(iii) 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., may be issued and if 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 IPC.
(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 4.5.2022
Siddhant
