Allahabad High Court
Rabil vs State Of U.P. Thru. Prin. Secy. ... on 12 May, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:33264
Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4935 of 2023
Applicant :- Rabil
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Anil Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
It is alleged in the prosecution case that during the routine checking of vehicles at Nare Ka Purwa, a white alto car standing on turn was seen by the police and when the police party tried to check the alleged car, three persons sitting inside the car, tried to ran away and out of those three persons, two have been apprehended from the spot. Those persons have been identified as Madan Pal Singh and Rabil (present applicant). From their personal search, 495 gram of morphine is alleged to have been recovered from their pant.
Learned counsel for the applicant submits that since it is admitted case of the prosecution that the applicant is having morphine, prior to the search, the applicant was not informed by the police about his right to be searched before the gazetted officer or the magistrate, therefore, compliance of Section 50 NDPS Act was must, however, it has not been complied by the police. Joint offer of recover has been made from both the applicants which is again contrary to Section 50 of NDPS Act.
It is further submitted that sample has not been drawn on the spot as is mandated by the Govt. of India standing instructions 1/88 and 1/89. It is also submitted that recovered sample has not been sent to forensic science laboratory within 72 hours as per the the aforesaid notification, rather the same has been sent after a delay of 12 days approximately which is evident from CA 4 to the counter affidavit.
Learned counsel for the applicant in support of this argument has relied on the judgment of the Apex Court passed in the case of Arif Khan @ Agha Khan Vs. State of Uttrakhand, "2018(2) JIC 464(SC). Emphasis is on para 26, 27 and 28. He has also relied on the judgment of the Apex Court passed in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujrat, "(2011) 1 SCC (Crl) 497".
It has been further submitted that Govt. of India Standing Instructions 1/88 and 1/89 have been held statutory and binding by the Apex court in the case of "Union of India v. Bal Mukund, (2009) 12 SCC 161". The applicant has no criminal history and he is languishing in jail since 18.02.2023.
It is further submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Considering the facts and circumstances of the case and considering the judgment of Apex Court in the case of Bal Mukund (supra), so also the fact that the applicant has no criminal antecedents; he is not likely to commit any offence while on bail; there are reasonable ground to believe that he may not be held guilty for such offences and twin condition of Section 37 (b) of NDPS Act, that he and without expressing any opinion on the merits of the case, I find it to be a fit case for enlarging the applicant on bail.
Accordingly, the bail application is allowed.
Let the applicant, Rabil, involved in Case Crime/F.I.R. No. 210/2023, under Sections 8/21 NDPS Act, Police Station - Kotwali Nagar, District - Barabanki, 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 which are being imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iv) 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. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(v) 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.
(vi) 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, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
Order Date :- 12.5.2023
R.C.
