Allahabad High Court
Ajay Thapa vs State Of U.P. on 3 April, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 27.03.2023
Delivered On:- 03.04.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 760 of 2023
Applicant :- Ajay Thapa
Opposite Party :- State of U.P.
Counsel for Applicant :- Awadhesh Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth, J.
1. Heard learned counsel for applicant and learned AGA for State perused the material placed on record.
2. There is allegation against the applicant that five packets of ganja weighing 156 kg was recovered from the vehicle of the applicant and co-accused. Two packets of 31 kg; two packets of 32 kg and one packet of 30 kg were recovered.
3. Learned counsel for the applicant submits that out of five packets recovered 100 gm each of the contraband recovered was taken out and a sample of 500 gm was only prepared. When as per the guidelines no. 1 of 1989, sample for duplicate were required to be made from each of the five packets recovered. He has submitted that it is a case of false implication of the applicant and hence there is violation of procedure of sampling. It has further been submitted that this is the first implication of the applicant and he is in jail since 24.08.2022.
4. Learned A.G.A has vehemently opposed the bail application and has submitted that recovery made from the applicant is above the commercial quantity. He has criminal history of one case under N.D.P.S Act and one case under Gangsters Act. He is not entitled to be enlarged on bail. This Court is conscious of the judgment of the Apex Court in the case of Khet Singh vs. Union of India, 2002 (4) SCC 380, but the benefit of the same can be availed only at the stage of trial after the evidence of the parties is led. Bail cannot be denied to the applicant when he has been implicated for the first time and has no criminal history whatsoever. He is in jail since 24.08.2022. Nothing has been brought on record as to what is the position of trial.
5. Learned counsel for the N.C.B has opposed the prayer for bail by contending that the innocence of the applicant cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of N.D.P.S. Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.
6. 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 to record a finding of not guilty. It is for the limited purpose essentially confined to the question of 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 its 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.
7. 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.
8. Let the applicant, Ajay Thapa, involved in Case Crime No. 286 of 2022, under Section 8/20 of N.D.P.S. Act and under Section 2/3 of U.P. Gangster Act, Police Station- Khurja Dehat, District- Bulandshahar, be involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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.
(v) 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, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.
Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within a week.
Order Date :- 03.04.2023
Rohit
