Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1696 of 2021 Applicant :- Kaluwa @ Srikant @ Ashu Opposite Party :- State of U.P.
Counsel for Applicant :- Azhar Ahmad,Ainul Haq Counsel for Opposite Party :- G.A.,Ankit Agarval
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Azhar Ahmad, learned counsel for the applicant, learned A.G.A. for the State, Shri Ankit Agarval, learned counsel for the informant and perused the record of the case.
The present bail application has been filed on behalf of applicant Kaluwa @ Srikant @ Ashu under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 1300 of 2020, under Sections 21/22 of Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Kotwali Shahr District Bulandshahr, during pendency of the trial.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that no incriminating article/contraband of 170 gm. Alprazolam powder has been recovered from the personal possession or pointing out of the applicant. The alleged recovery of 170 gm. Alprazolam powder from the right pocket of pant of the applicant, as shown in the first information report, is made without complying the mandatory provisions of Sections 42 & 50 of the NDPS Act. It is further submitted that there is no adequate or substantial compliance with Section 42 of NDPS Act and it is a question of fact to be decided in each case as held by the Constitution Bench of the Apex Court in Karnail Singh Vs. State of Haryana, (2009) 8 Supreme Court Cases 539. It is further submitted that in order to make search and recovery of the contraband articles from the body of the applicant, search and recovery has to be inconformity with the requirements of Section 50 N.D.P.S. Act. A search and recovery made from the applicant of the alleged contraband does not satisfy the mandatory requirements of Section 50 as held by Constitution Bench of the Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609.
It is further submitted that the applicant has no criminal history. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 7.10.2020, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. and learned counsel for the informant have opposed the prayer for bail. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
Upon considering the totality of facts and circumstances of the case and without expressing any opinion on merits of the case, I find it to be a fit case for bail. Hence, the present bail application is allowed.
Let applicant, Kaluwa @ Srikant @ Ashu be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) 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.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(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 of Cr.P.C.
(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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
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 :- 23.9.2021 T. Sinha