Allahabad High Court
Aris Khan @ Saka vs State Of U.P. on 15 May, 2023
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:105078
Court No. - 85
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21494 of 2023
Applicant :- Aris Khan @ Saka
Opposite Party :- State of U.P.
Counsel for Applicant :- Istiyaq Ali,Ali Hasan
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Renu Agarwal,J.
Heard learned counsel for applicant, learned A.G.A. for the State and perused the record.
The present application under Section 439 Cr.P.C has been filed seeking bail in Case Crime No. 156 of 2021 under Section 8/22 NDPS Act, Police Station-Katra, District-Shahjahanpur.
Learned counsel for the applicant has submitted that applicant has been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 200 grams of Smack which has been recovered from the joint possession of three persons including the applicant 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 applicant and his 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 applicant has no criminal history. It is further submitted that identically situated co-accused Jitesh Kumar has been enlarged on bail by Co-ordinate Bench of this Court vide order dated 05.05.2023 passed in Criminal Misc. Bail Application No. 18648 of 2023. It is also submitted that the applicant is in jail since 29.03.2023 and he undertakes that he will not misuse liberty, if granted.
Learned A.G.A. has opposed the prayer for bail by contending that the innocence of the applicant cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he 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 the fact that identically situated co-accused has been enlarged on bail, 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 applicant Aris Khan @ Saka, involved in Case Crime No.156 of 2023, under Section 8/22 N.D.P.S. Act, Police Station Katra, District Shahjahanpur be released on bail on his 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 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.
(ii) 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.
(iii) 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 dathavee 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.
(iv) 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 absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The applicant shall also furnish an undertaking from the sureties that the properties (movable/immovable) which are the basis of accepting the surety, shall not be disposed of by them till the conclusion of trial.
(vi) The applicant shall also give an undertaking to the effect that he will not change his address without prior intimation to the trial court concerned.
(Renu Agarwal,J.)
Order Date :- 15.5.2023
Karan
