Allahabad High Court
Vivek Kirketa vs State Of U.P. on 1 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:161115
Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35239 of 2024
Applicant :- Vivek Kirketa
Opposite Party :- State of U.P.
Counsel for Applicant :- Dhirendra Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in Case Crime No.126 of 2024, under Section 8/20/60 of Narcotic Drugs and Psychotropic Substances Act, P.S. Chakiya, District Chandauli.
As per allegation in the F.I.R. contraband substance, i.e., 49.200 kg ganja is said to have been recovered from the joint possession of the applicant and other co-accused persons by the police.
It is contended by learned counsel for the applicant that the applicant is innocent and he has been falsely planted by the police. Contraband substance, i.e., 49.200 kg ganja , which is said to have been recovered from the joint possession of the applicant and other co-accused persons, is above the commercial quantity but the applicant was not involved in committing the offence. There is no public eye witness of the alleged recovery. He submits that there is non-compliance of Section 50 of N.D.P.S. Act and in support of his contention, he has placed reliance upon the Judgment of the Apex Court rendered in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 wherein it has been held that mandatory procedure of Section 50 of the N.D.P.S. Act has to be complied with in regard to search and recovery. There is no previous criminal history of the applicant, which has specifically been explained in para 5 of the affidavit filed in support of the bail application. It is further submitted by learned counsel for the applicant that similarly placed co-accused Balister Singh has already been enlarged on bail by this Court, vide order dated 9.9.2024 passed in Criminal Misc. Bail Application no. 33020 of 2024. He further submits that since the role of the applicant is identical to that of Balister Singh who has already been enlarged on bail, he is also entitled to be enlarged on bail on the ground of parity. The applicant is in jail since 28.7.2024. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.
Per contra, learned A.G.A. opposed the prayer of bail and submits that applicant was involved in committing the aforesaid offence as contraband substance i.e., 49.200 kg ganja has been recovered from his possession and, as such, the applicant is not entitled to be released on bail.
Having heard the learned counsel for the parties and after perusal of record, it is evident that recovered contraband substance, i.e.. 49.200 kg ganja is below the commercial quantity; there is no independent public eye witness of the alleged recovery; there is non compliance of Section 50 of the NDPS Act; the criminal history of the applicant has been explained in para 11 of the affidavit filed in support of the bail application; and the applicant is languishing in jail since 28.7.2024.
Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a case of bail.
Let the applicant Vivek Kirketa involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties (one local surety out of them) each in the like amount, to the satisfaction of the court concerned, with the following conditions:-
(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) 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. He 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;
(3) 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.; and
(4) 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.
Order Date :- 1.10.2024
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