Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19677 of 2020 Applicant :- Danish Opposite Party :- State of U.P.
Counsel for Applicant :- Rajesh Shukla Counsel for Opposite Party :- G.A.,Krishna Agarawal,Narendra Deo Rai
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the applicant and Sri Krishna Agarwal, learned counsel for the opposite party.
Learned counsel for the applicant submitted that the first Criminal Misc. Bail Application No. 49835 of 2018 was taken up on 17.04.2020 during the period of lock down, therefore, neither counsel for the applicant nor counsel for opposite party was present. He also submitted that due to this reason bail order of co-accused- Mukreem dated 20.09.2017 passed in Criminal Misc. Bail Application No. 36068 of 2017, though available on record, could not place before the Court and ultimately, first bail application of the applicant was rejected.
This is a second bail application of the applicant. It is submitted by the learned counsel for the applicant that applicant has been falsely implicated in the present case. Applicant and co- accused, Mukreem both were arrested with joint recovery of 76 Kg Charas and complaint was filed against both of them.
Co-accused- Mukreem has preferred Criminal Misc. Bail Application No. 36068 of 2017 before this Court and this Court vide order dated 20.09.2017 has granted bail to him. Bail order of co-accused, Mukreem is reproduced hereinbelow;
"Court No. - 46
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36068 of 2017
Applicant :- Mukreem
Opposite Party :- Union Of India
Counsel for Applicant :- Brijesh Sahai,Ch. Dil Nisar
Counsel for Opposite Party :- Sanjay Kumar Singh
Hon'ble Naheed Ara Moonis,J.
Heard Sri Chaudhary Dilnisar, Advocate holding brief on behalf of the learned counsel for the applicant, Sri Sanjay Kumar Singh, Advocate appearing on behalf of the C.B.I. and the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Mukreem with a prayer to release him on bail in Case Crime No. 05 of 2016, under Sections 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Central Narcotics Bureau, District- Bareilly, during pendency of trial.
It is submitted by the learned counsel for the applicant that the applicant has been implicated with malicious intent that he was driving the truck loaded with 76 kg Charas. The applicant and one Dinesh Singh who are the driver and the cleaner of the truck, have been made an scapegoat as the applicant is neither the owner of the truck nor has any concern with the alleged recovery. The applicant was not aware about the contraband articles loaded in the truck and was asked to take the article from Lucknow to Shamli. There is no compliance of mandatory provisions of the Act with regard to search and seizure. To butress his submission learned counsel for the applicant has cited an authority of the Apex Court in Re: "Narcotices Central Bureau Vs. Sukh Dev Raj Sodhi" 2011 Law Suit(SC) 579 stressing that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate merely informing accused of his option to be searched either in the presence of a Gazetted Officer or before a Magistrate in not sufficient, the requirement of Section 50 of the N.D.P.S. Act is no complied. The obligation cast u/s 50 of the Act has not discharged strictly in the present case. There is no independent witness to corroborate the prosecution version. There is material inconsistency in the prosecution version. The applicant is absolutely innocent and has been falsely implicated in the present case as he could not grease the palm of the concerned police personnel. Fake recovery has been shown from the possession of the applicant. The applicant is languishing in jail since 25.12.2016 who is not a previous convict, deserves to be released on bail. In case, the applicant is released on bail he will not misuse the liberty of bail.
Per contra Sri Sanjay Kumar Singh, Advocate appearing on behalf of the C.B.I. and the learned AGA opposed the bail prayer of the applicant contending that huge quantity of charas was found from the cavity of the truck which was driven by the applicant and as such it cannot be said that he was not aware about the contraband article loaded in his truck. There is no occasion to falsely implicate the applicant by implanting such huge contraband article which is noxious for human consumption. Mandatory provisions of Section 50 of the Act with regard to search and seizure has been complied with by giving option to the applicant of being searched either in the presence of Gazetted Officer or Magistrate and the applicant has opted to be searched before the Gazetted Officer. The innocence of the applicant cannot be adjudged at the pre-trial stage therefore the applicant does not deserves any indulgence. In case, the applicant is released on bail, he will again indulge in similar anti-social activities.
Having considered rival submissions advanced by the learned counsel for the applicant and learned AGA, without expressing any opinion of the case, it is provided that the applicant Mukreem be released on bail in the aforesaid crime on furnishing two sureties each and a personal bond of like amount to the satisfaction of court concerned with the following conditions:
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. 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. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."
He next submitted that there is no difference in role of applicant as well as co-accused, therefore, on account of parity, he is also entitled to be enlarged on bail. Applicant has no criminal history and he is in jail since 25.12.2016, undertakes that he will not misuse the liberty, if granted.
Learned counsel for the opposite party has vehemently opposed the prayer and submitted that in this matter, no parity can be claimed. In support of his contention, he has placed reliance upon judgement of Apex Court in the case of State of Kerala Vs. Rajesh & Others. A.I.R. 2020 S.C. 7212 and Satyapal Singh Vs. State of Punjab (2018) 13 S.C.C. 813. He has also placed reliance upon judgement of this Court in the case of Gajendra Singh Vs. State of U.P. passed in Criminal Misc. Bail Application No. 2554 of 2019 dated 23.07.2020. He next submitted that in case of recovery of contraband from the possession of applicant, usually bail is not granted. In support of his contention, he has placed reliance upon judgement of Apex Court in the case of Union of India Vs. Ram Samujh reported in 1999 (39) ACC 643.
Being confronted by the Court, learned counsel for the opposite party could not point out any difference in the case of applicant as well as co-accused- Mukreem. He fairly accepted that to his best knowledge, opposite party has neither preferred any SLP before the Apex Court against the bail order of co-accused dated 20.09.2017 passed in Criminal Misc. Bail Application No. 36068 of 2017 nor file any bail cancellation before this Court. Therefore, under such facts and circumstances, Court has no reason to not extend the benefit of bail to the applicant also, once this fact is undisputed that there is no difference between the case of the applicant as well as co-accused- Mukreem, who has already been enlarged on bail by this Court vide order dated 20.09.2017.
Considering the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22, larger mandate of Article 21 of the Constitution of India, without expressing any opinion on the merit of the case, let the applicant- Danish, involved in Case Crime No. 05 of 2016, under Section- 8/20 N.D.P.S. Act, Police Station- Central Narcotics Bureau, District Bareilly, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The concerned Court/Authority/Jail 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.
This bail order would be subject to the fulfilment of following conditions:-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. 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;
5. In case, the applicant misuses the liberty of bail 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.
6. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
7. In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short term bail comes to an end.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 30.7.2021 Arvind