Allahabad High Court
Sumit vs State Of U.P. on 16 May, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15130 of 2022
Applicant :- Sumit
Opposite Party :- State of U.P.
Counsel for Applicant :- Ch. Dil Nisar
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. 16 of 2022, under Sections 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act") at Police Station Kandhla, District Shamli.
The submission of learned counsel for the applicant is that except present case, there is no other case against the applicant in relation to NDPS Act, 1985. The criminal history of the applicant has been explained in para 18 of the affidavit filed in support of bail application, which has not been disputed by the learned AGA. It is submitted that the applicant is in jail since 12.01.2022 and the possibility of conclusion of trial in near future is extremely bleak.
Learned counsel for the applicant further submitted that as per the story of prosecution, the applicant was apprehended on 11.01.2022 at about 23.40 hours and from the vehicle, which was driven by the applicant, the prosecution has shown recovery of 51 Kg. Ganja, which was in total 59 packets. As per the prosecution, 43 packets were of large size and 16 packets were of small size. It is further stated that in fact the recovery shown is completely fake, as there is no independent witness to it so as to support the story of prosecution. It is further stated that the sample ought to have been taken keeping in mind the mode, manner and procedure prescribed under the relevant Circulars particularly Circular No. 1 dated 13th June, 1989, however, in violation to the same, the sample was taken only from one packet and the same was sent for seeking scientific report. Elaborating this aspect, it is further stated that homogeneous sample should be taken as required in law including that of Circular No. 1 of 1989. The sample which was taken from the packet was of 500 gms, as such, even if the FSL Report supports the story of prosecution, the quantity indicated is much below the commercial quantity mentioned in the NDPS Act, 1985. He submitted that other mandatory provisions of the Act of 1985 were not followed at the time of search, seizure and arrest. He further submitted that moreover, the vehicle indicated in the FIR/recovery memo does not belong to the applicant nor he was driving the same. The implication of the applicant in the present crime is completely false. The reason of implication of the applicant is that some hot talk took place between the police and the applicant on the date of arrest and recovery shown. It is further submitted that false implication of the applicant can also be deduced from the fact that from one packet, sample was taken which was of 500 gms, which quantity can easily be available in the open market. It is also stated that in fact the implication of the applicant is based upon the confessional statement of co-accused, which is an inadmissible evidence. In support of his submissions, learned counsel for the applicant placed reliance on the judgement passed by this Court in CRIMINAL MISC. BAIL APPLICATION No. 55148 of 2021 (Omprakash Jhaba v. State of U.P.), CRIMINAL MISC. BAIL APPLICATION No. 19743 of 2020. (Phool Chand Ali v. Union of India) and the judgment passed by the Delhi High Court in CRL. APPEAL 1027 of 2015 & CRL. M.B. 511 of 2019 & CRL. M.A. 1660 of 2020 (Amani Fidel Chris v. Narcotics Control Bureau).
It is also submitted that considering the fact that the applicant is having no criminal history so far as it relates to NDPS Act, 1985 as also the facts 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 taking note of the facts of the case, it appears that the rigors of Section 37 would not be an impediment in enlarging the applicant on bail 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- Sumit 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 :- 16.5.2022
Arun/-
