Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36125 of 2021 Applicant :- Islam Khan Opposite Party :- State of U.P.
Counsel for Applicant :- Mohammad Waseem Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Mohammad Waseem, learned counsel for the applicant, Sri Shekhar Chandra Singh, learned A.G.A. for the State and perused the material on record.
The instant bail application has been filed on behalf of the applicant- Islam Khan with a prayer to release him on bail in Case Crime No. 323 of 2020, under Section 8/21/29/60 of N.D.P.S. Act, Police Station- Faridpur, District- Bareilly, during pendency of trial.
It is argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. As per the version of the F.I.R, 50g smack has been recovered from the possession of the applicant which is much below the commercial quantity. It has been argued that there is no compliance of Section 50 of the N.D.P.S. Act. It is next submitted that false recovery has been planted against the applicant to implicate him in the offence, the said recovery has not been witnessed by any independent witness. There is no analysis report of concerned forensic science laboratory from which it is established that the recovered is smack. The applicant has not arrested on the spot and the co-accused has already been granted bail. The applicant is languishing in jail since 29.07.2021. The criminal history of the applicant has been explained in para 12 of the affidavit. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Considering the nature of the offence, provision for initiation of cases and release of the accused in N.D.P.S. Act, material/evidence brought on record, complicity of the accused, severity of punishment, the submissions made by the learned counsel for the parties 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, let the applicant involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions that :-
(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.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 22.9.2021 Priya