Allahabad High Court
Shyamji Kesharwani @ Bablu Gupta @ ... vs N.C.B. Lucknow on 16 May, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48735 of 2021
Applicant :- Shyamji Kesharwani @ Bablu Gupta @ Bablu Kesharwani
Opposite Party :- N.C.B. Lucknow
Counsel for Applicant :- Pooja Srivastava,Rajeev Nayan Singh,Sr. Advocate
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Chandra Kumar Rai,J.
Heard Sri V.P. Srivastava, the learned Senior Counsel assisted by Sri Rajeev Nayan Singh, for the applicant, Sri Ashish Pandey, learned counsel for the N.C.B., learned A.G.A for the State and perused the record.
Applicant- Shyamji Kesharwani @ Bablu Gupta @ Bablu Kesharwani seeks bail in Case Crime No.25/2020, under Sections 8/20, 25, 29 of the N.D.P.S. Act, P.S. NCB Lucknow, Lucknow.
It is submitted by the learned Senior Counsel that in respect of the recovery of Ganja, a complaint was filed on 9.9.2021 by the Intelligence Officer, Prayagraj, accordingly, search and seizure memo was prepared on 9.9.2021. It is further submitted that applicant was neither arrested on the spot nor he is named in the seizure / recovery memo but during statement made by co-accused under Section 67 of the N.D.P.S. Act, name of applicant was surfaced as the person who has to receive the consignment. He next submitted that from the recovery memo itself, it is evident that along with N.C.B., all the police personnel were accompanying. He further placed reliance upon Sections 53 & 67 of the N.D.P.S. Act and submitted that persons who were arrested and made statement under Section 67 of the N.D.P.S. Act, the same is hit by Sections 25 & 26 of the Indian Evidence Act. He further submitted that criminal history of one case is explained in paragraph-19 of the affidavit filed in support of bail application in which applicant was acquitted vide order dated 8.1.2008, the judgment is annexed as Annexure-14 to the bail application. Learned counsel for the applicant placed reliance on a decision of this Court dated 13.5.2022 in Criminal Bail Application No.12316 of 2022, whereby accused Udayraj @ Raj, who has also been assigned the similar allegations, stood bailed out by this Court. It is finally submitted that the applicant is in jail since 9.9.2021, undertakes not to misuse the liberty of bail, trial is not likely to be concluded in the near future, he be enlarged on bail.
Learned counsel for the applicant further placed reliance on the decision of the Apex court in Toofan Singh vs. State of Tamilnadu, 2021 (114) ACC 365 and submitted that statement of applicant recorded under Section 67 of N.DP.S. Act does not have any evidentiary value. He also relied upon a decision of the Apex Court dated 25.10.2021 in Sanjeev Chandra Agrawal and another vs. Union of India. He further states that the decisions rendered in Toofan Singh (supra) and Sanjeev Chandra Agrawal (Supra) were again followed by the Apex Court in a case reported in 2021 0 Supreme (SC) 811, Bharat Chaudhary vs. Union of India and Raja Chandra Sekharan Vs. Intelligence officer on the point of criminal history. Learned counsel for the applicant placed reliance upon Prabhakar Tiwari vs. State of U.P. and Others, 2020 (13) ACC 326.
On the other hand, learned counsel for N.C.B. 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. He further submitted that C.D.R. of applicant's mobile has been matched and it was found that applicant contacted to accused person. As such, applicant is not entitled to be released on bail. He also placed reliance on a decision of the Apex Court in Baldev Singh @ Debu vs. State of Punjab (SLP (Criminal) No.1359 of 2021 dated 30.07.2021.
Considering the facts and circumstances of the case as also the contentions noted above that there is no recovery of contraband from the possession of the applicant, as such, I am inclined to enlarge the applicant on bail.
Let the applicant 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 which are being imposed in the interest of justice:-
(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 misuses 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 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 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.
Order Date :- 16.5.2022
C.Prakash
