Bablu vs State Of U.P.
2022 Latest Caselaw 4185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5412 of 2022
 

 
Applicant :- Bablu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pankaj Kumar Tripathi,Pankaj Kumar Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr.Pankaj Kumar Shukla, learned counsel for the applicant, learned A.G.A. and perused the record.

The instant bail application has been filed on behalf of the applicant-Bablu with a prayer to release him on bail in Case Crime No.02 of 2022, under Section-8/22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station-Hariparvat, District-Agra, during pendency of trial.

This court has passed following orders on 18.02.2022:

"Learned A.G.A. prays for and is granted two weeks' time to file counter affidavit.

As prayed, put up this case on 07.03.2022 as fresh"

and on 07.03.2022 following order was passed:

"Counter affidavit filed by the learned A.G.A. is taken on record.

Learned counsel for the applicant prays for and is granted two weeks' time to file rejoinder affidavit in response to the counter affidavit, filed by the learned A.G.A.

As prayed, put up this case as fresh on 24.03.2022."

Learned counsel for the applicant submitted that applicant has been falsely implicated in the present case. He further submitted that applicant was running a tea shop and on the day of alleged incident the applicant was returning to his house after closing his tea shop but police concern illegally implicated the applicant in the present case showing a false recovery of 250 grams of Alprazolam from the possession of the applicant while nothing has been recovered from the possession of applicant or his pointing out.

Learned counsel for the applicant next submitted that arresting police party had not followed the mandatory provisions as laid down in sections 50, 52 and 57 of the N.D.P.S. Act. He further submitted that provisions of Section 100 (4) of Criminal procedure code has also not been followed by prosecution although the incident took place at the crowded place. He next submitted that applicant has no criminal history as stated in paragraph No.15 of the affidavit filed in support of bail application and learned A.G.A. has not denied the fact in para No.13 of his counter affidavit that applicant has no criminal history. He also submitted that applicant is in jail since 31.12.2021.

On the point of section-50 of N.D.P.S. Act learned counsel for the applicant placed reliance upon constitution bench judgment of Apex Court Vijaysinh Chandubha Jadega Vs. State of Gujarat 2011 (1) SCC 609, learned counsel for the applicant further placed reliance upon judgment of Apex court Arif Khan @ Agha Khan vs. State of Uttarakhand passed in Criminal Appeal No.273 of 2007 dated 27.04.2018, the paragraph No.23, 24 and 25 of Arif Khan judgment are relevant which are as follows:

"23. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted officer or a Magistrate. (See also Ashok Kumar Sharma Vs. State of Rajasthan 2013 (2) SCC 67 and Narcotics Control Bureau Vs. Sukh Dev Raj Sodhi, 2011, (6) SCC 392)

24. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband " Charas" from the appellant and, if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband "Charas" from the appellant in conformity with the requirements of Section 50.

25. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer."

Lastly, it is submitted by the learned counsel for applicant that the applicant shall not abscond, and will fully cooperate in the criminal law proceedings. The applicant shall not tamper with the evidence nor influence the witnesses in any manner.

On the other hand learned A.G.A. opposed the prayer for grant of bail and submitted that police has offered the applicant to make his search before Gazetted officer but he refused and given his consent, then recovery was made and 250 gram Alprazolam was recovered from applicant, which comes within commercial quantity as such, the police has fully complied the provisions of sections 50, 52 and 57 of N.D.P.S. Act, therefore, applicant is not entitled to be released on bail.

In reply learned counsel for the applicant submitted that only by saying that provisions of Section 50 has been complied with is not enough rather it is mandatory that search and recovery from the accused is to be done in presence of a Magistrate or a Gazetted officer which is lacking in the present case.

However the Apex Court in the Case of Union of India Vs. Shiv Shankar Keshari, 2007 7 SCC 798 has held that the Court while considering the application for bail with reference to Section 37 of the Act is not called upon a record a finding of not guilty. it is for the limited purpose essentially confined to the question to releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records is satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India Vs. Shiv Shankar Keshari 2007 7 SCC 798, larger mandate of Article 21 of the Constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances, which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Accordingly, bail application is allowed.

Let the applicant-Bablu 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;

(i) The applicant shall file an undertaking to the effect that 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.

In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.

Order Date :- 26.5.2022

PS