Allahabad High Court
Parvati@ Champa vs State Of U.P. on 8 August, 2023
Bench: Vikram D. Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:159527
Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26945 of 2023
Applicant :- Parvati@ Champa
Opposite Party :- State of U.P.
Counsel for Applicant :- Mohammad Zakir
Counsel for Opposite Party :- G.A.
Hon'ble Vikram D. Chauhan,J.
1. Learned AGA submits that instructions have been received in the case and the bail application may be heard. With the consent of learned counsel for the parties, the bail application is being heard at this stage.
2. Heard counsel for the applicant, learned AGA for the State and perused the record.
3. A recovery of 8 kg of Charas is alleged by the prosecution to have been recovered from the bag of the applicant. The applicant is in jail since 7.11.2019. The alleged recovery is made on 7.11.2019.
4. Learned counsel for the applicant submits that the applicant has been falsely implicated in the case. There is no independent witness of the alleged recovery. The alleged recovery has not been made in accordance with law. The recovery (including search and seizure) is in violations of the N.D.P.S Act and Criminal Procedure Code. The said search and seizure has not been made by person authorised or empowered under law. The applicant cannot be permitted to remain in jail as a punitive measure during trial. There was no drug testing kit or others measures with the officials at the time of recovery which could identify the alleged substance as a narcotic and psychotropic substance. It is further submitted by counsel for the applicant that there is no criminal history of the applicant.
5. Learned counsel for the applicant further submits that applicant is languishing in jail since 7.11.2019 and more than three and a half years have passed after the arrest. Learned counsel for the applicant has relied upon the judgment of Apex Court in Rabi Prakash Vs. The State of Odisha in Special Leave to Appeal (Crl.) No(s).4169 of 2023 decided on 13.07.2023, to submit that once the applicant has suffered 3 years in custody, she is entitled to be enlarged on bail.
6. Learned AGA has opposed the bail application, however does not dispute the factual matrix.
7. In Rabi Prakash (supra), the Apex Court has held that :
"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent ? State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37 (1)(b) (ii) of the NDPS Act."
8. The Hon'ble Supreme Court in Rabi Prakash (supra) case has granted bail to the accused on the ground of period of detention.
9. In view of law laid down in Rabi Prakash (supra) and the fact that applicant is languishing in jail more than three and a half years, applicant is entitled to be released on bail. The bail application is allowed.
10. Let the applicant Parvati @ Champa involved in Case Crime No. 917 of 2019, under Sections 08/20 N.D.P.S. Act, Police Station Civil Lines, District Rampur be released on bail on furnishing a personal bond and two sureties of Rs.50,000/- each in the like amount to the satisfaction of the court concerned subject to the following conditions:-
i. The applicant will not tamper with the evidence during the trial.
ii. The applicant will not pressurize/intimidate the prosecution witness.
iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.
iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
vi. The applicant shall not leave India without the previous permission of the Court.
11. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 8.8.2023
D. Tamang
