Allahabad High Court
Shiv Singh vs Union Of India on 19 December, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:240271
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52885 of 2023
Applicant :- Shiv Singh
Opposite Party :- Union of India
Counsel for Applicant :- Chandra Prakash Pandey,Saurabh Mishra
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Siddharth,J.
Counter affidavit filed by learned counsel for the N.C.B.
Heard learned counsel for applicant, Shri Ashish Pandey, learned counsel for the N.C.B, and learned A.G.A. for the State and perused the record.
This bail application has been preferred by the accused-applicant, Shiv Singh, who is involved in Case Crime No. 36 of 2021 under Section 8(c),20,25,29 N.D.P.S. Act, Police Station- Babina, District- Jhansi.
This is the second bail application. The first bail application was rejected by this Bench vide order dated 13.3.2023 directing the trial court to conclude the trial within a period of 9 months from the date of production of certified copy of this order.
Learned counsel for the applicant has submitted that only one prosecution witness has been examined since then. P.W.2 is not appearing.Co-accused, Seetu Tiwari @ Nandji Tiwari has been enlarged on bail vide order dated 2.12.2022 in Criminal Misc. Bail Application No. 10833 of 2022.
He further submits that the mandatory provisions contained in sections 41,50,52,53 & 57) of the NDPS Act were not complied with while making the alleged search and recovery.It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. 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. The applicant has no criminal history. He is in jail since 16.9.2021 and he undertakes that he will not misuse liberty, if granted.
Learned A.G.A. and learned counsel for the informant have 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 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.
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.
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.
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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 19.12.2023
Atul kr. sri.
