Allahabad High Court
Upendra Singh (Second Bail) vs Union Of India (D.R.I.) on 25 August, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:56977
Court No. - 8
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3659 of 2022
Applicant :- Upendra Singh (Second Bail)
Opposite Party :- Union Of India (D.R.I.)
Counsel for Applicant :- Parmanand Gupta,Umesh Singh,Vinit Kumar Pandey
Counsel for Opposite Party :- Digvijay Nath Dubey
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant, Shri Digvijay Nath Dubey, learned counsel for Union of India and perused the record.
2. Present bail application has been filed after rejection of the first bail application by this Court on 17.12.2021 and the subsequent rejection of the bail application by Court below vide order dated 05.03.2022. When the first bail application was rejected by this Court on 17.12.2021, this Court had noticed that the bail granted to the co-accused Pankaj Kumar Singh by the trial Court is subject matter to challenge before this Court. Considering the said submission as well as the fact that the recovery allegedly from the applicant was more than the commercial quantity, this Court was not impressed with the argument on the ground of parity and finding the recovery to be more than commercial quantity and there being nothing on record to satisfy the test of Section 37 NDPS Act, the bail application was rejected.
3. In respect of the present bail application, learned counsel for the applicant argues that after the rejection of the first bail application, the trial has not even started properly and only one witness out of total nine proposed witnesses, has been examined. The submission of the first witness was recorded on 05.03.2022 and thereafter, none of the witnesses has been examined.
4. Learned counsel for the respondent/Union of India has filed a supplementary affidavit which indicates that the charge against the applicant was framed on 15.02.2020 and one witness out of nine witnesses has been examined so far. Based upon the said, he argues that the test of Section 37 NDPS Act is still to be satisfied considering the huge quantity allegedly recovered from the applicant. Thus, he argues that the bail application should be rejected.
5. Learned counsel for the applicant has placed reliance on the judgment of the Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 followed in the case of Rabi Prakash v. The State of Odishadecided in Special Leave to Appeal (Crl.) No(s).4169 of 2023 as well as the order passed by this Court in the case of Wahid Ali v. Narcotics Control Burear Lucknowdecided in Criminal Misc. Bail Application No.13590 of 2021on 12.07.2023 wherein the Court was of the view that prolonged incarceration during trial violates the rights of the accused enshrined under Article 21 of the Constitution of India and in the case of prolonged incarceration, the rights under Article 21 of the Constitution of India would override the requirements under Section 37 of the NDPS Act. The applicant is in custody since 05.05.2019 and more than four years have elapsed since the detention of the applicant and there is no likelihood of the trial being concluded in the near future.
6. Thus, following the judgment of the Supreme Court in the case of Mohd Muslim (supra) and the subsequent judgment in the case of Rabi Prakash (supra), solely on the ground of prolonged incarceration and there being no likelihood of the trial being concluded in the near future, the applicant who has no criminal antecedent, is entitled to be enlarged on bail. In view thereof, the application is allowed.
7. Let the applicant Upendra Singh be released on bail in FIR No.07 of 2019, under Section 8/20, 23, 25, 27, 28, 29 of NDPS Act, P.S. DRI Gomti Nagar, District Lucknow on his furnishing a personal bond with two sureties of the like amount each to the satisfaction of court concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) 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.
Order Date :- 25.8.2023
nishant
