Allahabad High Court
Sunil Kumar Kashyap vs Union Of India on 16 May, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12389 of 2022
Applicant :- Sunil Kumar Kashyap
Opposite Party :- Union of India
Counsel for Applicant :- Rajendra Singh,Chandrakesh Mishra,Shashi Kant Shukla
Counsel for Opposite Party :- Krishna Agarawal
Hon'ble Chandra Kumar Rai,J.
Sri Krishna Agarwal, learned counsel for the N.C.B. states that a counter affidavit on behalf of O.P. No.1 is filed in the Registry today itself. However, learned counsel for the applicant placed on record a copy of the counter affidavit.
Heard Sri Daya Shankar Mishra, the learned Senior Counsel assisted by Sri Abhishek Mishra, learned counsel for applicant, Sri Krishna Agrawal, learned counsel for the N.C.B., learned A.G.A for the State and perused the record.
Applicant- Sunil Kumar Kashyap seeks bail in Case No.87-A of 2004, under Sections 8/17/21/27-A/29 of the N.D.P.S. Act, P.S. D.R.I., District Varanasi.
It is submitted by the learned Senior Counsel that in respect of the recovery of heroine / morphine, a complaint was filed on 13.4.2004 by the Intelligence Officer, D.R.I., Varanasi. 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, being the Manager. It is also submitted that the complaint proceedings dated 13.4.2004, which was registered as Case No.87/2004 (Union of India vs. Mahadev Singh), under Sections 8/17/21/27-A/29 of the N.D.P.S. Act, came to be stayed by this Court on 10.6.2004 in A-482 No.4897/2004, however, the interim protection given by this court came to be vacated on 22.11.2017. 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. It is finally submitted that the applicant claims to have no previous criminal history, is in jail since 22.2.2022, 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 Tofan 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 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. As such, applicant is not entitled to be released on bail. He also placed reliance on a decision of the Apex Court in the case of Union of India vs. Ratan Malik @ Habul, reported in 2009(1) SCC (Cri) 831 and Union of India vs. Ram Samujh, reported in 1999 (39) ACC 543. He further submitted that co-accused Mahendra Singh and Deepak Soni, Driver and the Cleaner respectively, have been finally convicted by the trial court vide judgment dated 3.6.2010 as such appellant is not entitled to be released on bail.
Considering the facts and circumstances of the case as also the contentions noted above, 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
