Allahabad High Court
Mukesh Nishad vs State Of U.P. Thru. Prin. Secy. ... on 20 March, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7475 of 2022
Applicant :- Mukesh Nishad
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Dhananjai Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Shri D.K.Bhatt learned A.G.A. for the State and perused the record.
Instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in Case Crime No. 130 of 2022 Sections- 8/20 of Narcotic Drugs and Psychotropic Substances Act, P.S.Dargah Sharif, District -Baharaich.
As per allegation in the F.I.R. contraband substance, i.e., 41 Kg of cannabis is said to have been recovered from the possession of the applicant by the police.
It is contended by learned counsel for the applicant that the applicant is innocent and he has been falsely planted by the police. Contraband substance, i.e., 41 Kg of cannabis, which is said to have been recovered from the possession of the applicant though is above the commercial quantity but there is no public eye witness of the alleged recovery and further submits that there is non-compliance of Section 50, 52-A and 57 of N.D.P.S. Act. In support of his contention, he has placed reliance upon the Judgment of the Apex Court rendered in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 wherein it has been held that mandatory procedure of Section 50 of the N.D.P.S. Act has to be complied with in regard to search and recovery. There is no criminal history of the applicant, which has specifically been explained in para 38 of the bail application. The applicant is in jail since 10.05.2022. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.
He next added that the identically situated co-accused namely Raj Kumar Pandey @ Raju has already been enlarged on bail in Criminal Misc. Bail Application No. 6677 of 2022 vide order dated 02.03.2023.
Per contra, learned A.G.A. opposed the prayer of bail and submits that applicant was involved in committing the offence as contraband substance i.e.,41 Kg of cannabis has been recovered from his possession and, as such, the applicant is not entitled to be released on bail though he could not dispute the averments that there is no criminal history of the applicant.
Having heard the learned counsel for the parties and after perusal of record, it is evident that recovered contraband substance, i.e. 41 Kg of cannabis is said to be recovered; there is no independent public eye witness of the alleged recovery and there is non compliance of Section 50 of the NDPS Act; the criminal history of the applicant has been explained in para 38 of the bail application; and the applicant is languishing in jail since 10.05.2022. Comply with the fact that identical situated co-accused has been enlarged on bail.
Considering the submissions of learned counsel of both sides, it emerges that there is no previous criminal antecedents of the applicant and the applicant is languishing in jail since 10.05.2022 and the identically situated co-accused namely Raj Kumar Pandey @ Raju has already been enlarged on bail. Further Prmia facie the condition contend under section 37(1)(b) of the N.D.P.S. Act stands satisfied and the reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a case of bail.
Let the applicant Mukesh Nishad involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-
(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He 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;
(3) 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.; and
(4) In case, the applicant misuses the liberty of bail during trial 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.
Order Date :- 20.3.2023
Mayank
