Allahabad High Court
Radhey Shayam @ Radhey Shyam Verma vs Union Of India ... on 9 May, 2022
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2132 of 2022
Applicant :- Radhey Shayam @ Radhey Shyam Verma
Opposite Party :- Union Of India Thru.Prin.Secy.Ministery Of Home Affairs, Govt. Of India
Counsel for Applicant :- Dwijendra Prasad Gupta
Counsel for Opposite Party :- Akhilesh Kumar Awasthi
Hon'ble Krishan Pahal,J.
Heard Dwijendra Prasad Gupta, learned counsel for the applicant and learned A.G.A. for the State and perused the material placed on record.
Applicant seeks bail in Case Crime No. 03 of 2022 U/S 8/22/29 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station- NCB Lucknow District Bahraich, during the pendency of trial.
As per the allegations of the FIR, six persons are said to have been arrested on 13.1.2022 from their respective medical stores along with contraband commercial quantity 674 gms Tramadol, 112 gms Nitrazepam and 133 gms Alprazolam have been recovered from the possession of the applicant of which Tramadol and Alprazolam were of commercial quantity.
Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. He submits that originally in the said memo prepared under Section 42 of NDPS Act the names of only four accused persons found mentioned in it and the name of the applicant has been added later on as an improvement, which has been filed with the affidavit filed with the bail application as Annexure 1 along with recovery memo. Learned counsel has stated that there is no compliance of mandatory provision of Section 50 of the N.D.P.S. Act. The said recovery is a sham on the ground that the recovery as it has been made from the possession of six persons from six different medical stores and a single memo has been prepared pertaining to recovery from all of them. The place of recovery of the applicant is about 12 km from the other co-accused persons. There is no criminal history against the applicant. The applicant is the bonafide license holder of the medical store and he has the license to sell and purchase the said drugs. The case, if any, made out against the applicant is under the Drugs and Cosmetics Act. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.
Per contra, learned NCB, Sri Akhilesh Kumar Awasthi has vehemently opposed the bail application on the ground that as per the report the said contraband has been found to be the narcotic substance and the recovered Tramadol and Alprazolam are of commercial quantity but he could not dispute the fact that only one recovery memo has been prepared pertaining to recovery from six separate persons at different places.
The applicant is languishing in jail since 13.1.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
In Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 SCC 380, in which the Apex Court 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 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.
Let the applicant- Radhey Shayam @ Radhey Shyam Verma, who is involved in aforesaid case crime number 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 misuses 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 :- 9.5.2022
Arif
