Allahabad High Court
Dalvinder Singh vs State Of U.P. on 20 March, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 14.3.2023
Delivered on 20.3.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55857 of 2022
Applicant :- Dalvinder Singh
Opposite Party :- State of U.P.
Counsel for Applicant :- Istiyaq Ali,Ali Hasan
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard Sri Istiyaq Ali, learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Dalvinder Singh, with a prayer to release him on bail in Case Crime No. 368 of 2022, under Sections 8/18 N.D.P.S. Act, Police Station C.B. Ganj, District- Bareilly, during pendency of trial.
There is allegation against the applicant and co-accused, Rajeev Kumar Gupta that they were found in a vehicle with 5 Kg. and 500 gm. of opium. One sample of 100 gm. of opium was drawn and remaining 5 Kg. and 400 gm. opium recovered was sealed. Sample was required to be drawn in duplicate as per clause 2.4 of Standing Order No.01 of 1989.
Learned counsel for the applicant has submitted that the provision of Sections 42, 52-A and 57 of N.D.P.S. Act have not been complied. There is no public witness of search and seizure. The applicant has been falsely implicated in this case. He has further submitted that as per the Standing Order / Instruction No.1 of 1989 dated 13.6.1989, the minimum sample of opium, which was required to be taken was 24 gm. whereas in the present case sample of 100 gm. was taken from the total opium recovered, which was not the requirement Standing Order/Instruction aforesaid.
Learned AGA has vehemently opposed the prayer for bail of the applicant and submitted that under the guideline of 01 of 1989, there is no bar of taking sample above 24 gm. as per clause 2.3 of the Standing Order aforesaid. 24 gm. of opium recovered was required to sent for chemical examination. He has submitted that 24 gm. of opium is the minimum quantity. If 100 gm. of opium was taken out as sample, it will not violate the standing order aforesaid.
After hearing the rival contentions, this Court finds that no answer has been given by learned AGA to the argument of the counsel for the applicant regarding violation of Standing Order in preparation on only one sample.
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 :- 20.3.2023
Ruchi Agrahari
