Allahabad High Court
Amit Gupta @ Chhote Gupta vs State Of U.P. Through Secretary ... on 17 May, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10252 of 2022
Applicant :- Amit Gupta @ Chhote Gupta
Opposite Party :- State Of U.P. Through Secretary Home
Counsel for Applicant :- Rajeev Kumar Saxena
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.
The present bail application has been filed by the applicant seeking bail in Case Crime No. 11 of 2022, under Sections-8/20 of NDPS Act, Police Station-Ajeetmal, District Auraiya.
Learned counsel for the applicant submitted that accused-applicant is innocent and has falsely been implicated in the instant case. The reasons of false implication of the applicant is that the applicant runs a shop of shoes and slippers in Kasba Babarpur and the Police personnels of the concerned police station took some shoes/sleepers from the shop of the applicant and when the applicant demanded money for the said items taken, Police personnels threatened the applicant and thereafter, the police personnels implicated the applicant in the present case. The prosecution has shown recovery of 25 Kg. of Ganja from the possession of the applicant. This contraband substance, as per story of the prosecution, was in eight packets but only from one packet the sample was taken for examination. The process of taking sample is in violation of manner and procedure prescribed under Circular No. 01 of 1988 and Circular No. 01 of 1989 as also the subsequently, modified procedure vide Circulars dated 10.05.2007 and 16.01.2015, as per which, the sample should be taken from all the packets. The procedure prescribed in the aforesaid Circulars has to be followed. There is no pubic independent witness to support the story of the prosecution. Only the confessional statement of the applicant is available with the prosecution, which is not admissible in evidence. He submitted that if the story of the prosecution is taken on its face value then in that event the quantity of contraband substance would fall below the commercial quantity, indicated in the NDPS Act, 1985, which is 20 Kgs. In these circumstances, the applicant is entitled to be released on bail. Learned counsel for the applicant in support of his argument placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Union of India vs. Mohanlal & Another; reported in (2016) 3 SCC 379.
It is also stated that the applicant has no criminal history except the present case and taking note of the facts of the case as also the procedure followed by the prosecution in the instant case, rigors of Section 37 would not be an impediment in granting the bail to the applicant.
It is also submitted that there is no apprehension that after being released on bail, he may flee from the course of law or may otherwise misuse the liberty of bail and the applicant is in jail since 15.01.2022 and the possibility of conclusion of trial in near future is extremely bleak.
Learned A.G.A., on the basis of instructions received, opposed the prayer for grant of bail. However, he could not dispute that there is no independent witness as also the facts related to taking of sample.
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 and the judgment 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 application on bail and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant- Amit Gupta @ Chhote Gupta be released on bail in aforesaid Case Crime, on his furnishing personal bond to the satisfaction of the court concerned forthwith. Applicant is also directed to furnish two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(6) 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.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 17.5.2022
Vinay/-
