Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 908 of 2021 Applicant :- Kaleem Alias Budhu Kala Opposite Party :- State of U.P.
Counsel for Applicant :- Rizwan Ullah Siddiqui Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the applicant and Mrs. Poonam Singh Sengar, learned AGA for the State and perused the material placed on record.
Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 230 gram charas recovered from the possession of the applicant and there is no public witness of the alleged recovery. It is further contended that mandatory provisions of Section 50 of N.D.P.S. Act has not been complied with. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained by voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non-compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. The applicant has criminal history of 16 cases, wherein he is stated to have been enlarged on bail, the details are mentioned in paragraph nos. 2 of the supplementary affidavit. It is also submitted that the applicant is jail since 22.10.2020 and he undertakes that he will not misuse liberty, if granted.
Learned counsel for the department as well as learned A.G.A. have opposed the prayer for bail.
Courts have taken notice of overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of Covid 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, nature of accusation and severity of punishment in case of conviction and nature of supporting evidence, reasonable apprehension of tampering of witnesses and prima facie satisfaction of the Court in support of the charge and reformative theory of punishment, the application is entitled to be released on bail in this case.
Let the applicant - Kaleem alias Budhu Kala involved in Case Crime No. 448 of 2020, under Section 8/20 N.D.P.S. Act, Police Station Mandi, District Saharanpur be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following condition:-
(i) 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;
(ii) 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.
(iii) 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 It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
Order Date :- 30.7.2021 Digamber Digitally signed by Justice Vivek Kumar Singh Date: 2021.07.30 17:33:24 IST Reason: Document Owner Location: High Court of Judicature at Allahabad