Allahabad High Court
Rinku Gupta 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. - 18175 of 2022
Applicant :- Rinku Gupta
Opposite Party :- State of U.P.
Counsel for Applicant :- Balbeer Singh
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. 115 of 2022 under Sections 8/22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "N.D.P.S. Act") at Police Station Etmaddaula, District Agra.
Learned Counsel for the applicant submitted that the applicant has falsely been implicated in the present case and the possibility of conclusion of trial in near future is extremely bleak. It is submitted that from the possession of the applicant the prosecution has shown 630 Gms. of Dizapam, which is just 130gms above from commercial quantity of 500 gms prescribed in the schedule of the Act, 1985. It is just to show good work to the Administration and create the gravity of the offence. The recovery shown by the prosecution is fake one as there is no public independent witness to support the story of the prosecution. The accused applicant is in jail since 25.02.2022. He has no previous criminal antecedents.
It is further stated that there is non-compliance of Sections 42, 55 & 57 of N.D.P.S. Act. Further stated that provision of Sections 100 & 165 of Cr.P.C. related to search and seizure have not been complied with. It is also stated that the sample was not taken in accordance with the procedure prescribed in the Circular No. 01 of of 1989 as also the Circular No.01 of 1988.
It is further submitted that in the FIR/ recovery memo it has not been indicated that how much quantity was taken from the recovered contraband substance as sample for Forensic Science Laboratory. The weight, indicated in the FIR, of the contraband substances recovered from the possession of the applicant is also doubtful. The implication of the applicant is based upon confessional statement, which is not admissible in evidence.
He further stated that the applicant was never involved in sale and purchase of the contraband substance and he has no criminal history. As such, the rigors of section 37 of the NDPS Act of 1985 would not be an impediment in granting the bail to the applicant.
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 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 but did not dispute the factual submissions made by the learned counsel for the applicant.
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 sample as also that there is no public witness to support the story of the prosecution and the spirit of Section 37 of NDPS Act 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- Rinku Gupta 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
Vinay/-
