Udayraj @ Raj vs State Of U.P And Another
2022 Latest Caselaw 2703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 75
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12316 of 2022
 
Applicant :- Udayraj @ Raj
 
Opposite Party :- State Of U.P And Another
 
Counsel for Applicant :- Amit Kumar Srivastava
 
Counsel for Opposite Party :- Ashish Pandey
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Amit Kumar Srivastava, learned counsel for the applicant, Mr. Ashish Pandey learned counsel for the N.C.B. (opposite party No.2), learned A.G.A. for the State and perused the record.

The present bail application has been filed on behalf of the applicant-Udayraj @ Raj to release him on bail in Case Crime No.253 of 2021, under Sections 8/21/29 of N.D.P.S. Act (N.C.B. Case Crime No.01 of 2022), Police Station-Fatehganj East, District-Bareilly/ N.C.B., Lucknow.

Learned counsel for the applicant submitted that first information report has been lodged against nine person on 18.08.2021 at 16.31 hours in respect to the incident occurred on 18.08.2021 at 13.50 hours but applicant was not named in the said first information report. It is further submitted that on the basis of information given by informer, police party intercepted a santro car and thereafter two persons, namely Chote @ Saheed Khan & Raj @ Saif Khan have been arrested, who were loading articles in the said Santro Car. Subsequently, from the possession of Chote @ Saheed Khan and Raj @ Saif Khan as well as from said Santro Car, 20 K.G. smack is alleged to be recovered. The arrested accused have disclosed the names of seven other persons, who have also been named in the said first information report. It is further submitted that during course of investigation from the confessional statement of co-accused Chote @ Saheed Khan under Section 161 Cr.P.C. complicity of applicant has been disclosed accordingly, applicant was made accused and arrested on 15.01.2022. He next submitted that nothing has been recovered either from the possession of the applicant or from the pointing out of applicant. He next submitted that the statement of applicant has been manipulated by N.C.B. under Section 67 of N.D.P.S. Act applying pressure upon him, he relied upon the case law of Apex court report in 2021 (114) ACC 365 Toofan Singh vs. State of Tamilnadu and submitted that said statement of applicant recorded under Section 67 of N.DP.S. Act does not have any evidentiary value. He further submitted that mandatory provision of Sections 50, 52 and 57 of N.D.P.S. Act have also not been followed by N.C.B.. He also submitted that previously applicant has been falsely implicated in Case Crime No.142 of 2004 under Section 21 of N.D.P.S. Act, therefore, he was convicted for period already undergone and fine and in another Case Crime No.689 of 2021 applicant has been granted bail vide order dated 13.01.2021. He further submitted that identically situated Co-accused applicants, namely, Mohd. Sher Khan, Faiyaz Hussain, Zaki Khan and Kiswari Begum have already been granted by this court, the bail orders of co-accused have been annexed as Annexure No.R.A.2 to the rejoinder affidavit. He further relied upon a case of Apex Court dated 25.10.2021 (Sanjeev Chandra Agrawal and another vs. Union of India, the order runs as follows:

"Mr. Kailash Vasudevan, learned senior counsel appeared for the petitioners and Mr. S.V. Raju, Additional Solicitor General appeared on behalf of the respondent.

Delay condoned.

Leave granted.

We are inclined to set aside the impugned order of the High Court directing framing charges under Sections 27-A and 29-A of the Narcotic Drugs And Psychotropic Substances Act, 1985 (for short "NDPS Act") against the appellants, namely, Sanjeev Chandra Agarwal

and Rajiv Sethi.

The factual position is that no narcotic drugs or psychotropic substances were recovered from the premises of the two appellants.

As per the prosecution, 4 kilograms of Acetic Anhydride (Controlled Substance) was allegedly found from the premises of the appellants located at Gyan Scientific Agency, Varanasi. The High Court was not correct in relying on the statements made by other accused under Section 67 of the NDPS Act, in light of the judgment of this Court in Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1. It is pointed out that the charges under Sections 9-A and 25 of the NDPS Act have been framed and to this extent there is no challenge and dispute.

While not interfering with the order directing framing of charges under Section 9-A and 25, direction in the impugned order to frame charges against the two appellants namely, Sanjeev Chandra Agarwal and Rajiv Sethi under Sections 27-A and 29-A of the NDPS Act cannot be sustained and is set aside.

The appeal is allowed in the aforesaid terms.

We clarify that the bail granted to the appellants has not been cancelled and we have not commented and made any observations on merits of the allegations in the charge-sheet.

Pending application(s), if any, stand disposed of."

Tofan Singh (supra) and Sanjeev Chandra Agrawal (Supra) were followed again by Apex Court in a case reported in 2021 o Supreme (SC) 811 Bharat Chaudhary vs. Union of India with Raja Chandra Sekharan Vs. Intelligence officer dated 13.12.2021, Paragraph 11 of the judgment is as follows:

"In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section-67 of the N.D.P.S. Act is too tenuous a ground to sustain the impugned order dated 15th May, 2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (Supra). The impugned order qua A-4 is accordingly quashed and set aside and the order dated 2nd November 2020 passed by the learned Special Judge, EC @ N.D.P.S. cases is restored. As for Raja Chandrashekhran (A-1) since the charge sheet has been already been filed and by now the said accused has remained in custody for over a period of two years. It is deemed appropriate to release him on bail, subject to the satisfaction of trial court"

He next submitted that applicant is innocent, falsely implicated, not named in the first information report, complicity of the applicant has been disclosed by the co-accused in his confessional statement which is not admissible in law as such applicant is entitled to be released on bail. Applicant is in jail since 15.01.2022.

Lastly it is submitted by the learned counsel for applicant that the applicant shall not abscond, and will fully cooperate in the criminal law proceedings. The applicant shall not tamper with the evidence nor influence the witnesses in any manner

On the other hand, learned counsel for N.C.B. Mr. Ashish Pandey opposed the prayer for bail and submitted that nexus and collusion of applicant with other accused person are apparent on record, Conscious and constructive possession of the applicant over the recovered contraband is also apparent. As such, applicant is not entitled to be released on bail. He further submitted that applicant is a convicted person for the offence committed under N.D.P.S. Act. As such, in view of law laid down in case of Baldev Singh @ Debu vs. State of Punjab (SLP (Criminal) No.1359 of 2021 dated 30.07.2021 applicant is not entitled to be released on bail.

In reply, counsel for the applicant submitted that nothing incriminating has been recovered either from the possession or from the pointing out of applicant. As such, provision of Section-37 of N.D.P.S. Act would not be applied against the applicant. He further submitted that case of Baldev Singh @ Debu vs. State of Punjab, there was a huge recovery from the possession of Accused but in the present case nothing has been recovered from the possession of the applicant. Simply on the ground of Criminal history applicant cannot be denied bail specially when criminal history has been explained.

On the point of Criminal history Apex Court in Prabhakar Giwari Vs. State of U.P. and others 2020 (113) ACC 326 has held that merely because allegations are grave and several criminal cases are pending against the accused by itself cannot form basis for refusal of the prayer for bail.

Apex Court in the Case of Union of India vs. Shiv Shanker Kesari (2007 7 SCC 798 2007 (59) ACC 778 has held as follows in paragraph no.11:

"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 and circumstances of the case, the fact that nothing has been recovered from the possession of the applicant, the fact that co-accused having identical role have been released on bail and ratio of the judgment of Apex Court in the case of Toofan Singh (Supra), Sanjeev Chandra Agrawal (supra), Bharat Chaudhary (supra), Prabhakar Tiwari (Supra) and Union of India Vs. Shiv Shanker Kesari (supra) without expressing any opinion on merit of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant-Udayraj @ Raj involved in aforesaid case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions;

1. The applicant will not tamper with the evidence during the trial.

2. The applicant will not influence any witness.

3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

4. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail

Order Date :- 13.5.2022

PS