Heard learned counsel for the applicant, Sri R.K. Awasthi learned counsel for the Union of India and perused the record.
Personal appearance of the officer who is present today is exempted.
This is second bail application. The first bail application of the applicant was rejected by the coordinate Bench of this Court vide order dated 15.11.2017 passed in bail No. 581 of 2016.
It is contended on behalf of the applicant that false recovery of 1060 grams of alleged contraband i.e. heroin has been shown from the possession of the applicant. Learned counsel for the applicant submits that according to the chemical examination report, two samples were sent for chemical examination. In sample No. A-1 percentage of heroin was found 2.4 percent and in sample no. B-1 percentage of heroin was found 1.5 percent. As such the total average of heroin came to 1.95 percent and accordingly the total quantity of heroin is only 20.67 grams. Therefore, the alleged recovery of 1060 grams of heroin is falsified by the report of the analyst. It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Sri R.K. Awasthi learned counsel for Union of India has opposed the bail prayer and submitted that there is no need to file counter affidavit in this case.
Learned counsel for the applicant submits that the co-accused namely Misbahurrahman has been enlarged on bail by the coordinate Bench of this Court vide order dated 20.01.2016 passed in bail No. 7933 of 2015. Another co-accused namely Smt. Abhilasha Tiwari @ Abha @ Aapa has been enlarged on bail by the coordinate Bench of this Court vide order dated 31.08.2015 passed in bail No. 5708 of 2015.
It is next contended on behalf of the applicant that the mandatory compliance of Section 50 of N.D.P.S. Act, has not been done and only a printed proforma was given to the applicant who is an illiterate and the contents of the proforma were not read out and rights of the applicant to be searched before the gazetted officer or before the magistrate were not explained which creates serious doubt upon the prosecution story. Even as per the analyst report, the recovered quantity of heroin is much less than the commercial quantity. Learned counsel for the applicant has also filed the order sheet of the trial court which depicts that till date only one prosecution witness has been examined. It is further submitted that the applicant is in jail since 30.12.2014 and there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and for the period for which he is in jail, the applicant is entitled to be released on bail in this case.
Let the applicant, Israq, involved in Case Crime No. 210/2015, C.B.N. No. Nill/2014, under Sections 8/21/29 of N.D.P.S. Act, Challaned by Centrl Bureau of Narcotics, Lucknow, District - Lucknow, 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 will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iv) 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.
(v) 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.
(vi) 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.
Order Date :- 30.7.2019 R.C.