Allahabad High Court
Hasim vs State Of U.P. Thru. Prin. Secy. Home Lko. on 17 April, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:21652
Court No. - 13
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4425 of 2023
Applicant :- Hasim
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Ayodhya Prasad Mishra A.P. Mishra,Anil Kumar Pandey,Ayush Shukla,Farooq Ayoob,Jaylaxmi Upadhyay,Rituraj Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
This first bail application has been filed with regard to Case Crime No. 244 of 2022 under Section 8/21 NDPS Act, Police Station Sangrampur, District Amethi.
As per contents of recovery memo, the incident is said to have taken place on 21st October, 2022 at about 23.12 hours when during course of checking the applicant was apprehended with 825 gram smack illegally in his possession.
It has been submitted by learned counsel for applicant that he has been falsely implicated in the charges levelled against him and that there is serious violation of Sections 50 and 52-A of NDPS Act inasmuch as although the recovery memo indicates that the Circle Officer was present at the time of search, the recovery memo does not bear his signature rendering the aforesaid facts suspicious. It is submitted that although the recovery allegedly made against the applicant is above commercial quantity but the applicant is under custody since 22nd October, 2022 and as yet only three prosecution witnesses have been examined although in the charge sheet there are total of 16 prosecution witnesses. It is therefore submitted that there is no hope of early conclusion of trial and the applicant has been under incarceration of more than two and half years.
Learned A.G.A. has opposed bail application with submission that recovery memo clearly indicates presence of Circle Officer who is gazetted officer and in whose presence search was carried out and therefore provisions of Sections 50 and 52-A of NDPS Act stand complied with. It is also submitted that recovery made from applicant of 825 gram of smack is very much above the commercial limit. It is however admitted that applicant's previous criminal history has been explained and trial is still ongoing.
Upon consideration of submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that although alleged recovery from applicant is above commercial limit but the aspect of signatures of the Circle Officer not being present on the recovery memo would be subject matter of evidence during course of trial which may also be relevant for the purposes of determining infringement of Sections 50 and 52-A of NDPS Act. As per report submitted by trial court dated 25th March, 2025, three prosecution witnesses have been examined whereas charge sheet indicates a total of 16 prosecution witnesses. The applicant has already spent more than two and half years as an under trial and there does not appear to be hope of early conclusion of trial. In such circumstances, the conditions indicated in Sections 37 of NDPS Act stand complied with.
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."
Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
Accordingly bail application is allowed.
Let applicant, Hasim, involved in the aforesaid 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 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 269 BNS.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 84 BNSS 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 209 BNS.
(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 351 BNSS. 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 :- 17.4.2025
prabhat
