Allahabad High Court
Mukesh Kumar Yadav vs State Of U.P. Thru. Secy. Home Lko. on 23 March, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4041 of 2023
Applicant :- Mukesh Kumar Yadav
Opposite Party :- State Of U.P. Thru. Secy. Home Lko.
Counsel for Applicant :- Amit Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Supplementary affidavit filed today by the counsel for the applicant is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The 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. 61 of 2023, under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, P.S. Chinhat, District Lucknow.
It is contended by learned counsel for the applicant that the applicant is innocent and he has been falsely planted by the police. He next added that 450 grams of Charas is said to be recovered from the possession of the applicant which is below the commercial quantity. He next submits that the recovery of the Contraband substance has been planted by the Police due to enmity. He submits that there is non-compliance of Section 50 of N.D.P.S. Act and 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. He next added that there is no independent eye witness of the aforesaid recovery. He next added that there are two cases criminal history against the applicant which has been explained in the supplementary affidavit. He next submits that the applicant is a law abiding citizen and he is in jail since 07.02.2023. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.
Per contra, learned A.G.A. opposed the prayer of bail and submits that applicant was involved in committing the aforesaid offence as contraband substance has been recovered from his possession and, as such, the applicant is not entitled to be released on bail.
Having heard the learned counsel for the parties and after perusal of record, it is evident that there is no independent public eye witness of the alleged recovery; there is non compliance of Section 50 of the NDPS Act; the criminal history of the applicant has been explained in the supplementary affidavit; and the applicant is languishing in jail since 07.02.2023.
Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, 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 Kumar Yadav 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 :- 23.3.2023
Anurag
