Allahabad High Court
Komal @ Vishal Maurya vs (N.C.B.) Lucknow on 7 August, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160758
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50938 of 2022
Applicant :- Komal @ Vishal Maurya
Opposite Party :- (N.C.B.) Lucknow
Counsel for Applicant :- Ashok Kumar Upadhyay,Abhishek Kumar Mishra,Chandrakesh Mishra
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Siddharth,J.
1. Heard Sri Daya Shankar, Learned Senior Counsel, assisted by Sri Chandrakesh Mishra and Abhishek Mishra,learned counsel for applicant; Sri Vipul Pandey, Advocate, holding brief of Sri Ashish Pandey, learned A.G.A. for the State and perused the record.
2. Counter-affidavit filed today, is taken on record.
3. Rejoinder-affidavit filed today, is taken on record.
4. This is the second bail application of the applicant. The first bail application was rejected by the coordinate Bench of this Court on 09.08.2021 which is not available now.
5. This bail application has been preferred by the applicant,Komal @ Vishal Maurya, who is involved in Case Crime No. 19 of 2021, under Section 8/20/27/29/60B N.D.P.S. Act, Police Station- N.C.B., District-Lucknow.
6. Learned Senior Counsel for the applicant has submitted that after the rejection of first bail application of the applicant, coaccused, Pradeep Singh, and Vinod Yadav, have already been enlarged on bail by this Court vide bail Application Nos. 46/2022 and 38170/2021. He has submitted that in the present case there is clear violation of the Instruction No. 1/1988 as considered in the bail application of co-accused, Prateek Singh. He has further submitted that the applicant is languishing in jail since 29.05.2021. He has relied upon the judgment of Apex Court in the case of Rabi Prakash Vs. State of Odisha 2023 LiveLaw (SC) 533 wherein the Apex Court has held that twin conditions contained in the Section 37 of NDPS Act cannot come in the way or grant of bail where the accused is in jail for long time. He has submitted that before the trial court the statements of P.W.-1 and 2 have been recorded.
7. Learned A.G.A. and learned Counsel for NCB have vehemently opposed the prayer for bail by contending that the bail applications of co-accused, Satya Prakash Saroj and Pradeep Singh, have already been rejected by coordinate Bench of this court hence the bail application of the applicant also deserves to be rejected. 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 NDPS 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.
8. After hearing the rival contentions this Court finds that compliance of the Instruction No. 01/1988 has not been considered in the case of the co-accused whose bail applications have been rejected by a coordinate Bench of this Court . Even otherwise there is no party of rejection of bail application.
9. 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.
10. 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.
11. Let applicant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) 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;
(ii) In case, the applicant misuses the liberty of bail 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.
(iii) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
12. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
13. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
14. The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year.
15. Registrar(Compliance) is directed to communicate this order to the concerned court below within ten days.
Order Date :- 7.8.2023
Abhishek
