Mukhtar Khan vs State Of U.P.
2024 Latest Caselaw 18694 ALL

Allahabad High Court

Mukhtar Khan vs State Of U.P. on 23 May, 2024

Author: Sanjay Kumar Pachori

Bench: Sanjay Kumar Pachori

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:95229
 
Court No. - 70
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20220 of 2024
 

 
Applicant :- Mukhtar Khan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sajid Razi,Shamim Uddin Khan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.
 

Heard Sri Shamim Uddin Khan learned counsel for the applicant, Sri Karunakar Singh, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Mukhtar Khan under Section 439 of the Code of Criminal Procedure, with a prayer to enlarge him on bail in Case Crime No. 247 of 2021 for offence punishable under Sections 8/21 of N.D.P.S. Act and Section 18(A), 28, 18(C), 27(B) 1 of Drugs and Cosmetics Act and Section 419, 420 of the Indian Penal Code, registered at Police Station Alinagar, District Chandauli, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, F.T.C.-Ist, Chandauli vide order dated 02.05.2024.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case with ulterior motive on the basis of false and frivolous allegations. It is further submitted that the impugned first information report dated 21.09.2021 has been lodged by Inspector of SWAT team against the applicant and 9 named persons after about five hours of lodging the F.I.R. on the basis of recovery and arresting memo of six accused persons which have been prepared on information received from the police informer.

It is further submitted that name of the applicant surfaced on the basis of confessional statement of two arrested co-accused persons. As per allegation of F.I.R. 340 boxes of cough syrup alleged to have been recovered from the joint possession of the six accused persons from the vehicle which was owned by the present applicant.

It is further submitted that the alleged contraband is not covered the Narcotic Drug and Psychotropic Substance Act.

It is further submitted that the applicant has relied upon the judgment of Crl. Misc. Writ Petition 8370 of 2021 (Bittu Kumar Vs. Union of India) passed by Division Bench of this Court where it has been observed that Phensedyl New Cough Linctus Syrup is not subject matter of the provision of Act and search and seizure conducted therein was without authority of law.

It is further submitted that no incriminating article has been recovered from the possession of the applicant. The alleged recovery of 340 boxes of Phensedyl New Cough Linctus Syrup from the joint possession of six accused has been made from the applicant on the basis of confessional statement of arrested co-accused person.

He has next argued that the applicant has criminal history of one another case relating to Section 174A of I.P.C. The applicant is languishing in jail since 04.04.2024.

Learned counsel for the applicant has relied upon the judgments of Apex Court in Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and another, (2012) 9 SCC 446 and Prabhakar Tiwari Vs. State of U.P. and another, (2020) 11 SCC 648 wherein the Apex Court has observed that pendency of other criminal cases against the accused may itself cannot be a basis for refusal of bail.

Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

It is well settled position of law that bail is the rule and committal to jail is an exception and refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution [Vide State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors Vs. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 and Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773].

No material or circumstances has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witnesses in previous criminal history.

Keeping in mind, 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. Hence, the present bail application is allowed.

Let the applicant Mukhtar Khan be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions :-

(i) 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.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge and (c) recording of statement under Section 313 of Cr.P.C.

(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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 23.5.2024

Kumar Manish.