Allahabad High Court
Pyari Dharti Magar @ Pyaripun vs State Of U.P. Thru. Prin. Secy. ... on 26 May, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:37885
Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8564 of 2022
Applicant :- Pyari Dharti Magar @ Pyaripun
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Manoj Kumar Singh,Ravindra Gupta
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.
Prosecution case is that employees of SSB Check Post at Gauriphanta Border, gave information to the informant that two ladies are coming from Nepal with charas. On this information, the accused persons were intercepted and were searched and from the personal search of the applicant 5.825 KG charas wrapped in various body parts was found and from the other co-accused 5.425 KG charas wrapped in various body parts was found.
Learned counsel for the applicant submits that from perusal of the recovery memo, it is evident that mandatory compliance of section 50 NDPS Act as per judgment of the Apex Court dated 29.10.2010 passed in criminal Appeal No. 974 of 2003 and Criminal Appeal No. 1809/2009 " Vijaysinh Chandubha Jadeja Vs. State of Gujrat", has not been done as right to be searched before the gazetted officer or the magistrate has not been apprised by the arresting officer.
It is further submitted that the applicant has no criminal history. The arrest and recovery were made on 31.03.2022, however, samples as per counter affidavit, have been sent on 21.05.2022 beyond 72 hours in violation of Standing Order 1/88 and 1/89 of NCB. From perusal of recovery memo, it is also evident that though the alleged contraband is recovered from various parts of the body of the applicant, however, separate sampling from each recovery has not been done, rather it is only written that 125 gram charas has been taken for sampling. It is clear that separate sampling from each and every recovery has not been taken. It appears that homogeneous sample has been taken and sent for FSL report which is impermissible as per guidelines and finding given by the Apex Court in the case of Union of India v. Bal Mukund, (2009) 12 SCC 161.
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 fact that the applicant is a lady; she has no criminal history; she is in jail since 31.03.2022, so also considering Section 50 of NDPS Act as well as standing instructions 1/88 and 1/89, prima facie it appears that if the applicant is enlarged on bail, she may not commit similar crime and she may not be held guilty during trial; thus twin conditions under Section 37 of NDPS Act being satisfied 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, Pyari Dharti Magar @ Pyaripun, involved in Case Crime/F.I.R. No. 21/2022, under Sections 8/20/23 NDPS Act, Police Station - Gaurifanta, District - Lakhimpur Kheri, 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 :- 26.5.2023
R.C.
