Uttarakhand High Court
CRLA/167/2021 on 10 May, 2022
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Application for Bail and Suspension of Sentence (IA/1/2021)
In
CRLA No.167 of 2021
Shri Sanjaya Kumar Mishra, ACJ.
Shri Ramesh Chandra Khulbe, J.
Mr. Sandeep Tandon, learned counsel
along with Ms. Tajaswina Sagar, learned
counsel for the appellant.
Mr. J.S. Virk, the learned Deputy
Advocate General assisted by Mr. Rakesh
Kumar Joshi, the learned Brief Holder for the
State of Uttarakhand.
Heard learned counsel for the parties.
This Bail Application has been filed
under Section 389 of the Code of Criminal
Procedure (hereinafter referred to as "the
Cr.P.C."). The appellant, namely Enam, has
prayed for suspension of sentence and grant
of bail upon appeal. The appellant has been
convicted and sentenced as under:-
S. Conviction Sentence Fine Sentence
No. in
default
of fine
1. 15(c) r/w Fourteen Rs.1,00,000/- Three
8(c)of the years' years'
N.D.PS. R.I. S.I.
Act
It is apparent from the record in
paragraph no.106 of the impugned judgment,
the learned Special Judge has come to the
conclusion that in this case the provisions of
Section 55 of the N.D.P.S. Act i.e. for proper
custody of the contraband article after seizure
and Section 57 of the Act, which provides for
information and intimation to the higher
authority about the seizure of contraband and
arrest of the accused has not been followed in
this case. In fact, both the provisions have
been violated in this case in the sense that the
proper custody of the contraband has not been
explained after samples were sent to SFSL for
chemical examination. The I.O. has admitted
that after seizure of contraband and arrest of
the accused he has made entry in the General
Diary and intimated over phone to the higher
authorities and he has not sent any written
intimation to the higher authority. Therefore,
there is a violation of provisions of Section 57 of
the N.D.P.S. Act also. The learned Special Judge
came to the conclusion that even if such
violation of such provision he is restrained to
show any prejudice. Hence, such violations
were held to not consequential. We are not in
agreement with such conclusions as the
safeguards of Section 55 and 57 of the Act are
mandatory and unless they are satisfied the
conviction may be set aside only on that
ground.
Moreover, the appellant was on bail during
trial and there is no allegation by the
prosecution that he misused the liberty granted
to him. He is a permanent resident of P.S.
Kutubsher, District Saharanpur, Uttar Pradesh.
So, there is no reasonable apprehension of his
absconding from the process of justice.
In that view of the matter, we are of the
opinion that the appellant shall be released on
bail, on such terms and conditions as deemed
just and proper by the learned Trial Court in
the aforesaid case.
Accordingly, the bail application
(IA/1/2021) is allowed.
(R.C. Khulbe, J.) (S.K. Mishra, ACJ.)
10.05.2022
BS/SS
