Allahabad High Court
Smt Sushma vs State Of U.P. on 5 April, 2023
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 87
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12228 of 2023
Applicant :- Smt Sushma
Opposite Party :- State of U.P.
Counsel for Applicant :- A.C.Srivastava,Vinod Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant- Smt. Sushma with a prayer to release her on bail in Case Crime No. 03 of 2023 registered under Sections 8/20/29 N.D.P.S. Act & Section 420 IPC, Police Station - T.P. Nagar, District - Meerut during pendency of the trial.
Learned counsel for the applicant submitted that the applicant is innocent and she has been falsely implicated in the present case due to ulterior motive. It is alleged in the FIR that four persons were arrested by the police party with 60 Kg of contraband ganja. Applicant is said to be fled away from from the spot. The name of the applicant surfaced after the confessional statement of co-accused persons and except this there is no other evidence against the applicant. From the perusal of record, no contraband substance has been recovered from the possession of the applicant. In para-2 of the supplementary affidavit, criminal history of three cases against applicant has been shown and in two of which she has been enlarged on bail and one case has already come to and end. The applicant is languishing in jail since 13.02.2023 In case, the applicant is released on bail, she will not misuse the liberty of bail and co-operate in trial. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non-compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act.
It is next submitted that co-accused persons namely Krishna Kanahiya and Kundar Kumar, who were arrested on the spot have already been granted bail by the co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 6332 of 2023 and 6313 of 2023 respectively vide order dated 14.2.2023. The case of the applicant is similar to the co-accused persons and hence the applicant, who is a lady, is entitled to be released on bail.
Learned A.G.A. has opposed the bail prayer of the applicant but the not dispute the aforesaid factual matter of the case.
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.
Considering the facts of the case and keeping in mind, 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.
Let the applicant Smt. Sushma, who is involved in the aforesaid case crime, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(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 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 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.
Order Date :- 5.4.2023
S.K.S.
