Allahabad High Court
Mohit vs State Of U.P. on 11 May, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38586 of 2020
Applicant :- Mohit
Opposite Party :- State of U.P.
Counsel for Applicant :- Manoj Kumar Mishra,Sudhir Kumar Upadhyay
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the accused-applicant and learned A.G.A. and perused the record.
Present bail application has been filed by the accused-applicant involved in Case Crime No. 742 of 2020, under Sections 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "N.D.P.S. Act") at Police Station Sector 49 Noida, District Gautam Buddha Nagar.
Learned Counsel for the applicant submitted that the applicant is in jail since 07.09.2020 and till date the trial has not been concluded and the possibility of conclusion of trial in near future in the present case is extremely bleak. The applicant has no criminal history except the present case. It is submitted that the applicant has been made a scape goat. It appears that the owner of the vehicle or any other person was involved in the crime as indicated in the FIR and to save him, the applicant has been implicated as the vehicle involved in the instant crime i.e. Swift Car bearing Registration No. UP-16 BM 5494, which was seized by the Police, does not belong to the applicant and the same has been released in favour of the true owner. This fact has not been disputed by the learned the learned AGA Sri S.K.Ojha, based upon averments made in the counter affidavit as also instructions received by him. It is stated by the learned counsel for the applicant that if the story of the prosecution is taken on its face value even then only 250 gms of Ganja, which was sent for Forensic Science Laboratory, can be considered at the time of trial which is much below the commercial quantity indicated in the NDPS Act of 1985, which is 20 Kg. It is in view of the fact that while taking the sample, the procedure as indicated in the Circular No.1 of 1989 has not been followed. There is no public independent witness to support the story of prosecution and the implication of applicant is based on confessional statement. It is also stated that mandatory provisions were not complied by the concerned police party. Reliance has also been placed on the judgment passed in the cases of Tofan Singh vs. The State of Tamil Nadu reported in (2021) 4 SCC 1, Gaunter Dewin Kircher vs. State of Goa reported in (1993) 3 SCC 145, Raju Gurang and Another vs. Union of India reported in 2007 (4) ADJ 17, Jitendra Singh Rathore vs. State of U.P. reported in 2014 (2) ADJ 424 and Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798. He submitted that in the facts and circumstances of the case, rigors of Section 37 would not be an impediment in granting the bail to the applicant.
It is lastly submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty, terms and conditions of bail and will co-operate in the trial.
Learned A.G.A., on the basis of instructions, has opposed the prayer for bail. He submitted that as per the FSL report, Ganja was found from the possession of the applicant, as such, the applicant is not entitled to be released on bail. However, he could not dispute the fact that the sample was not taken as per the procedure prescribed under Circular No.01 of 1989.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties including in relation to non- compliance of mandatory provisions related to the recovery, search and seizure and taking sample, period of incarceration as also the possibility of conclusion of trial in near future as also the judgments referred above and without expressing any opinion on the merit of the case, I am of the view that a case for bail is made out.
Let the applicant- Mohit be released on bail in the aforesaid case crime number on his furnishing personal bonds and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to 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 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 fail 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.
(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 11.5.2022
Vinay/-
