Kaleem vs U.O.I. Through Intelligence ...
2023 Latest Caselaw 15442 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:35413
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 73 of 2021
 

 
Applicant :- Kaleem
 
Opposite Party :- U.O.I. Through Intelligence Officer N.C.B. Lucknow
 
Counsel for Applicant :- Indrajeet Shukla,Sultan Hasan Ibrahim
 
Counsel for Opposite Party :- Shikha Sinha,Akhilesh Kumar Awasthi
 

 
Hon'ble Rajeev Singh,J.

1. Heard learned counsel for the applicant, learned A.G.A for the State of U.P. and perused the record.

2. The present bail application has been filed on behalf of the applicant in Case Crime/FIR No.03 of 2019, under Section 8/20/29/60(3) of Narcotic Drugs & Psychotropic Substances, Police Station-N.C.B., Lucknow, District- Faizabad, with the prayer to enlarge him on bail.

3. Learned counsel for the applicant submitted that applicant has been falsely implicated in the present case, and he is in jail since 18.01.2019. He further submitted that applicant was passenger in the vehicle in question, he was falsely implicated on the basis of confessional statement. He further submitted that applicant does not have any criminal antecedent and his bail application was allowed by this Court on 21.10.2021, thereafter, he was released on bail, thereafter, bail order dated 21.10.2021 was challenged by the Department of N.C.B. before the Hon'ble Apex Court in Criminal Appeal No.1264 of 2022, which was disposed of by setting aside the order dated 21.10.2021 vide judgment and order dated 16.8.2022 with observation that satisfaction of Section 37(b) of N.D.P.S. Act is not available in the bail order granted by the Court and also requested to the this Court to decide the bail application expeditiously, as possible. It was also observed by the Apex Court that it was not proposed to direct the applicant to surrender before the Court and this will be subject to the final outcome of the bail application after considering the same by this Court afresh. He further submitted that applicant never misuse the liberty of the bail granted by this Court and as till today, examination of P.W.1 is going on as the case is pending since 2019 and there is no possibility of conclusion of trial in near future. He further submitted that counter affidavit has already been filed by the respondent agency but there is no evidence that there is a possibility that applicant will associate with the crimes of N.D.P.S. Act in future. He also relied on the decision of Hon'ble Apex Court in the Union of India Vs. Shiv Shankar Keshari reported in (2007) 7 SCC 798. In such circumstances, the applicant is entitled for bail.

4. Learned counsel for the N.C.B. has opposed the prayer for grant of bail to the applicant and submitted that on the basis of report of informant which was inscribed by the officers, the name of the applicant was mentioned and during the course of investigation, Call Detail Report was also collected and same is supported the prosecution version. He also relied on the decision of Hon'ble Apex Court in the case of State of Kerala Vs. Rajesh Advocate reported in AIR 2020 SC 720, Union of India Vs. Ratan Malik @ Habul reported in 2009(1) SCC (Cri.) 831, Narcotics Control Bureau Vs. Mohit Agarwal reported in AIR 2022 SC 3444 and submitted that merely on the basis of delay in trial, the applicant is not entitled for bail. He also submitted that satisfaction in accordance with Section 37(b) of N.D.P.S. Act is mandatory but he does not dispute this fact that initially the applicant was in jail since 18.1.2019 and his bail application was allowed by this Court on 21.102021, which was challenged by the Department of N.C.B. before the Apex Court in Criminal Appeal No.1264 of 2022, in which, the bail order granted by this Court was set aside vide order dated 16.8.2022 with a request to this Court to consider the bail application of the applicant afresh by considering the provisions of Section 37 of N.D.P.S. Act but the applicant was not directed to surrender and protection was granted to him and this would be subject to the decision of this Court in the bail application. He also not dispute this fact that only the evidence of P.W.1 is going on and there is no evidence that the applicant misused the liberty of bail granted by this Court.

Learned counsel for the N.C.B. also submitted that at the time of deciding the bail application of co-accused, Vinay Kumar Mishra in Criminal Appeal No.8094 of 2021, co-ordinate Bench has directed to the trial court to list the trial of this Court twice in a week for evidence and conclude the trial.

Considering the submissions of learned counsel for the parties, and going through the contents of bail application, counter affidavit, rejoinder affidavit, other relevant documents as well as the decision of Hon'ble Apex Court in Criminal Appeal No.1264 of 2022 dated 16.8.2022, it is evident that as the applicant was in jail since 18.1.2019 upto the date of release in pursuance of the order granted by this Court on 21.10.2021 and thereafter, the bail order of this Court was set aside by the Apex Court on 16.8.2022, with the observation that P.W.1 is being examined and till today, status of the examination has not been changed and adequate opportunity of hearing is given to the public prosecutor. There is no evidence filed by the respondent authorities in the counter affidavit that there is any least possibility of involvement of applicant in the cases of N.D.P.S. Act in near future, therefore, this Court cannot be presumed that the applicant will involve in future in the offence related to the N.D.P.S. Act and there is not evidence that applicant misuse the liberty granted by the court below.

5. In view of all the facts and circumstances of the case specially the fact that the applicant is not carrying any criminal history, in the considered opinion of this Court the satisfaction as required under Section 37 (1) (b) of the N.D.P.S. Act stands satisfied and the applicant has made out case for bail.

6. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits and demerits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is allowed.

7. Let the applicant- Kaleem, who is involved in aforementioned case 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 subject to following conditions.

(i) The applicant shall not commit or participate in any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

(ii) 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.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) 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 IPC.

(v) 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., may be issued and if 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 IPC.

(vi) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.

8. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Trial Court is directed to conclude the trial expeditiously, without giving any adjournment to either of the parties.

Order Date :- 17.5.2023

Gaurav/-