Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7455 of 2021 Applicant :- Javvad Opposite Party :- State of U.P.
Counsel for Applicant :- Jitendra Pal Singh Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 827 of 2020, under Section 8/20/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Deoband, District-Saharanpur during the pendency of trial.
As per the prosecution case on 10.11.2020, informant/Inspector Sanjay Singh lodged the F.I.R. against the applicant under Section 8/20 of the N.D.P.S. Act alleging inter alia that on 10.11.2020, he along with other Police personnel were on patrolling duty in the area of Jamia Tibbiya Medical College, where he received an information from the informer that three traffickers coming on black colour Royal Enfield motorcycle from Muzaffarnagar are having intoxicated substance. On the said information barricading was done by the Police personnel. Thereafter, they saw that three persons coming are on bullet motorcycle, but all of sudden before 10 meters from barricading they stopped their motorcycle and tried to take U turn, but on using force they were apprehended by the Police personnel. On interrogation, the person who was driving the motorcycle disclosed his name as Javvad (the applicant), other two persons disclosed their names as Rihan and Inam. On questioning, they stated that they were carrying smack. They purchased the same from Bareilly and were going to Yamuna Nagar (Haryana) to sell the same. F.I.R. further alleges that they were informed their right in terms of Section 50 of the N.D.P.S. Act. An option was given to them for getting their search by any Magistrate or gazetted officer, to which they told that they are inclined to give their search before any gazetted officer. Thereafter informant informed Shri Rajnish Kumar Upadhyay, Circle Officer, Deoband through R.T. set, who reached there from Government Vehicle No. UP70 AG 3618. On taking search 400 gms. of Smack was recovered from the possession of the applicant Javvad, 250 gms. of Smack was recovered from co-accused Rihan and 250 gms. of Smack was recovered from co-accused Inam. It is the case of the prosecution that out of aforesaid recovery, separate samples of 10-10 gms. each of Smack were taken out from each packets and same were sealed keeping in white clothes. It is also mentioned that at the spot effort was made to call the public witness, but nobody was ready to become the witness of the said incident and also did not disclose their names.
The main substratum of argument of learned counsel for the applicant is that :-
i. From the perusal of alleged memo of recovery dated 10.11.2020, it quite clear that the first page, second page and third page of memo of recovery dated 10.11.2020 are not signed by Shri Rajnish Kumar Upadhyay, Circle Officer; Shri Sanjay Singh, Inspector and his officials including the applicant, thus the prosecution case is totally false and fabricated.
ii. Neither weight of alleged recovered material was taken on spot nor sample was taken on spot in presence of applicant- accused.
iii. Signature of the applicant was also not taken on the alleged sample, therefore, possibility of tampering the sample cannot be ruled out.
iv. As stated in memo of recovery, the sample was taken from recovered material on 10.11.2020, but the same was sent for chemical examination after 12 days on 23.11.2020 and the chemical examination report of the said sample is still awaited from F.S.L., Ghaziabad while charge sheet dated 26.12.2020 has been submitted without chemical examination report.
v. From the perusal of charge-sheet dated 26.12.2020, it quite clear that the Investigating Officer has neither recorded the statement of Shri Rajnish Kumar Upadhyay, Circle Officer, Deoband under Section 161 Cr.P.C. nor shown him as prosecution witness in the charge sheet, thus the prosecution case is totally false and concocted.
vi. The applicant has no concerned with the aforesaid alleged crime/recovered material as well as bullet motorcycle.
vii. The applicant has been falsely implicated in the present case. In fact, no such incriminating material/cash has been recovered from possession of the applicant.
viii. There is no independent public witness of the alleged recovery, therefore, possibility of false implication of the applicant by the police with ulterior motive cannot be ruled out.
ix. F.I.R. has been lodged under Section 18/20 of the N.D.P.S. Act, whereas case of recovery of Smack comes under the purview of Section 18/21 of the N.D.P.S. Act, which shows that only paper formalities have been done by the Police personnel without applying their mind.
x. The alleged recovery as well as arrest of the applicant is totally false and fabricated as he was picked up from his house by the Police without informing the reasons of arrest, thus the arrest of the applicant is illegal.
xi. The applicant has no criminal history to his credit.
xii. There is no chance for absconding or tampering with the prosecution evidence. The applicant is ready to furnish his bail bond if he would enlarge on bail.
xiii. The applicant is languishing in jail since 10.11.2020 and in case he is enlarged on bail, he will not misuse the liberty of bail.
Per contra, learned Additional Government Advocate has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage therefore, the applicant does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail.
After having heard the argument of learned counsel for the parties, I find that learned A.G.A., while opposing the prayer for bail does not dispute the aforesaid factual aspect of the matter as argued on behalf of the applicant. Much emphasis has been given by the learned counsel for the applicant that charge sheet has been submitted in this case without chemical examination report and court has also taken cognizance on the said charge sheet. This fact has been admitted by the prosecution in para no. 5 & 6 of the counter affidavit. It is also submitted that without chemical examination report it cannot be said that alleged recovered contraband is covered under N.D.P.S. Act. In view of above, this Court is of the view that applicant has made out a case more than prima facie in his favour to satisfy the requirement as provided under Section 37 of the N.D.P.S. Act, therefore, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Javvad, be released on bail in the aforesaid case crime number on 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 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.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 6.4.2021 Sunil Kr. Gupta