Allahabad High Court
Raj Kumar Yadav vs State Of U.P. on 5 June, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- CRIMINAL APPEAL No. - 5497 of 2021
Appellant :- Raj Kumar Yadav
Respondent :- State of U.P.
Counsel for Appellant :- Mukesh Kumar
Counsel for Respondent :- G.A.
Hon'ble Ram Manohar Narayan Mishra,J.
(Order on Criminal Misc. Bail Application No. 1 of 2021)
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the appellant with a prayer to release him on bail in Special Criminal Case No. 79 of 2017 (State of U.P. Vs. Raj Kumar Yadav) arising out of Case Crime No. 156 of 2017, under Sections 8/22 of N.D.P.S. Act, Police Station/Chauki G.R.P. City, District- Varanasi during pendency of trial.
It is contended by the learned counsel for the applicant that the appellant is innocent and has been falsely implicated in the present case. It is next contended that appellant and co-accused Natte @ Lallan, Ashok @ Mama are said to have been arrested by police on 17.02.2017 and the substance alleged to have been recovered from separate possession of the appellant and other co-accused is stated to be 'Alprazolam' and joint recovery memo was prepared by recovery officer. 105gm of Alprazolam powder was allegedly recovered from the possession of the appellant whereas 103gm Alprazolam powder was allegedly recovered from co-accused Natte @ Lallan and 102gm Alprazolam was allegedly recovered from the other accused person. The recovery of 105gm of Alprazolam powder has been falsely planted on the applicant. There is no independent witness of the alleged recovery. The compliance of provisions of Section 50 N.D.P.S. Act has not been made. It is next contended that co-accused Natte @ Lallan who is said to have been arrested along-with appellant and other co-accused and whose case is covered by common recovery memo and was allegedly found in possession of 103 gm Alprazolam powder has been acquitted by competent court vide order and judgment dated 17.10.2018 passed in Special Session Case No. 80 of 2017 arising out of Case Crime No. 157 of 2017 under Section 8/21/22 N.D.P.S Act, P.S. G.R.P. Cantt, District Varanasi, therefore, the judgment of Natte @ Lallan and present appellant are mutually contradictory inspite having arisen from the same incident and common recovery memo. Further, it is contended that case crime number is mentioned in recovery memo itself whereas the F.I.R is said to have been lodged on the basis of recovery memo and this also creates a doubt in authenticity of recovery memo as recovery memo is said to be prepared on the spot and not at Police Station. The process of sampling of recovered contraband has not been carried out in proper manner, as provided under law. As per the custody certificate, he has undergone 4 years, 1 month, 8 days actual imprisonment till 15.01.2023, thus he has undergone 4 years, 6 and half months actual imprisonment till date including period of custody as under trial. Appellant is of no criminal antecedents and is languishing in jail since 17.02.2017. There is no likelihood of fleeing from course of justice or tampering with evidence. Hence, bail, during trial, has been prayed for.
Learned AGA has opposed the prayer for bail and submitted that the amount of Alprazolam recovered from the possession of the appellant exceeds 100 gm which is the commercial quantity of the recovered contraband and there is no infirmity in the judgment of the trial court.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and the fact that the co-accused who is in similar circumstances and whose case arise out of the same incident that of the present appellant has already been acquitted in respective criminal trial and that the present appellant has no previous criminal history and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Consequently, the prayer for bail is granted.
Without expressing any opinion on the merits of the case, let the accused-appellant- Raj Kumar Yadav, convicted and sentenced in aforesaid case be released on bail on his furnishing personal bond with two sureties each in the like amount to the satisfaction of the court concerned.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
The appellant is directed to deposit Rs. 35,000/- of the amount of fine imposed by the trial court before his release from jail on bail. It is made clear that rest of realization of fine i.e Rs. 65,000/- shall remain stayed till the decision of the appeal.
(Order on Appeal)
List this appeal for hearing in due course as paper-book is prepared.
Office to send a copy of this order to the concerned Jail Superintendent through the Chief Judicial Magistrate concerned for compliance.
Order Date :- 5.6.2023
PS
