Allahabad High Court
Bal Bahadur Pun vs Union Of India Thru. Intelligence ... on 8 April, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:19772
Court No. - 13
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1956 of 2025
Applicant :- Bal Bahadur Pun
Opposite Party :- Union Of India Thru. Intelligence Officer Pankaj Dubey Ncb Lko.
Counsel for Applicant :- Manoj Kumar Singh
Counsel for Opposite Party :- Akhilesh Kumar Awasthi
Hon'ble Manish Mathur,J.
1. Heard Mr. Manoj Kumar Singh, learned counsel for applicant and Mr. Vivek Kumar Mishra, Advocate holding brief on behalf of Mr. Akhilesh Kumar Awasthi, learned counsel for Narcotic Control Bureau, Lucknow. Counter affidavit filed today is taken on record.
2. This first bail application has been filed with regard to NCB Crime Case No.33 of 2019, under Sections 8/20, 23, 29 NDPS Act, registered at Police Station NCB, Lucknow.
3. It has been submitted that as per complaint, incident is said to have taken place on 11.08.2019 when the applicant alongwith co-accused were allegedly apprehended while entering India from Nepal with contraband narcotics.
4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and even as per complaint, there are no independent witnesses of the alleged recovery made from applicant. He also submits that there is serious violation of Section 52-A of the NDPS Act inasmuch as no samples were taken before Magistrate is concerned. It is submitted that applicant does not have any previous criminal history and is under incarceration since 12.08.2019 with co-accused Kamla Maghar having already been enlarged on bail by this Court in Bail Application No.4773 of 2024.
5. Learned counsel has placed reliance on judgment rendered by Hon'ble the Supreme Court in the case of Rabi Prakash versus The State of Odisha, Special Leave to Appeal (Crl) No.4169 of 2023. It is also submitted that despite almost five years, only second prosecution witness has been examined although there are a total of above seven witnesses.
6. Learned counsel appearing for opposite party has opposed bail application with the submission that acting on a tip off by informants, applicant alongwith co-accused was apprehended raid handed with illegal contraband in their possession. He has placed reliance on judgment rendered by Hon'ble the Supreme Court in the case of Narcotics Control Bureau versus Kashif reported in 2024 SCC Online SC 3848 to submit that violation of Section 52A NDPS Act is only procedural in nature and would not entitle the applicant for bail. He however admits that as of now only two prosecution witnesses could be examined although there are about five prosecution witnesses.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Considering submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that even as per complaint, there is no independent public witness of the recovery allegedly made from the applicant. The aspect of violation of Section 52A of NDPS Act would be subject matter of evidence during the course of trial but it is admitted that co-accused Kamla Maghar has already been enlarged on bail with similar allegations being levelled against her. It is also admitted that despite more than five years having been passed, only the second prosecution witness has been examined out of a total of more than five prosecution witnesses. There therefore does not appear to be any hope of early conclusion of trial.
9. Hon'ble the Supreme Court in the case of Rabi Prakash (supra) has clearly held that the twin conditions of Section 37 of NDPS Act in such circumstances, would stand resolved particularly since prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and in such situations, the conditional liberty must override statutory embargo of Section 37 NDPS Act.
10. The aforesaid judgment being squarely applicable in the facts and circumstances of the case, bail application is allowed.
11. Let applicant, Bal Bahadur Pun, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two local 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 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 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.
(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.
Order Date :- 8.4.2025
Subodh/-
