Allahabad High Court
Kamal Kishor Paswan And Another vs State Of U.P. on 11 May, 2023
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:104461
Court No. - 86
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21183 of 2023
Applicant :- Kamal Kishor Paswan And Another
Opposite Party :- State of U.P.
Counsel for Applicant :- Rakesh Kumar Tiwari,Ajay Kumar Misra
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for applicants, learned A.G.A. for the State and perused the record.
Learned counsel for the applicants has submitted that applicants have been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 23 kg of Ganja has been recovered from the joint possession of three persons including the applicants and there is no public witness of the alleged 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 applicants and their 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 applicants have no criminal history. It is also submitted that the applicants are in jail since 30.03.2023 and they undertake that they will not misuse liberty, if granted.
Learned A.G.A. has opposed the prayer for bail by contending that the innocence of the applicants cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicants do not deserve any indulgence. In case the applicants are released on bail they 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 the applicants Kamal Kishor Paswan and Duran Kumar Kamkar, involved in Case Crime No.167 of 2023, under Section 8/20/60(1) N.D.P.S. Act, Police Station Kotwali, District Ballia be released on bail on their furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of the court concerned with the following condition:-
(i) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code;
(ii) In case, the applicants misuse the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iii) The applicants 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 their bail and proceed against them in accordance with law.
The trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of six months from the date of production of a certified copy of this order, if there is no legal impediment.
Order Date :- 11.5.2023
Jitendra
