Court No. - 74
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16746 of 2021 Applicant :- Lalit Opposite Party :- State of U.P.
Counsel for Applicant :- Ashok Kumar Singh Bais Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Lalit, in connection with Case Crime No. 68 of 2021, under Sections 8/21, 22, 25 and 26 of the Narcotic Drug and Psychotropic Substances Act (for short "N.D.P.S. Act"), Police Station - Mandi, District - Saharanpur.
Heard learned Counsel for the applicant and Mr. Shashi Shekhar Tiwari, learned A.G.A. appearing for the State.
It is submitted by learned Counsel for the applicant that the applicant is innocent and has been falsely implicated in the present crime. It is urged that the applicant has been apprehended by the Police along with five others, on the prior information of a mukhbir khaas, where all the six were shown to be travelling by a Swift Dzire Car. It is submitted that the applicant and other co-accused were not individually informed about their right to be searched before a Gazetted Officer and, therefore, the recovery is one made in breach of Section 50 of the N.D.P.S. Act. Reliance has been placed by the learned Counsel for the applicant on a decision of the Supreme Court in State of Rajasthan v. Parmanand and Another, (2014) 5 SCC 345. It is urged that so far as the applicant is concerned, he was a passenger in the vehicle and not its driver. The driver was another co-accused Usman. It is urged that from the applicant's possession, twenty capsules of Parvon-SPAS were shown to be recovered, precisely from the left hand side pocket of his pant, besides recovery of Rs.750/- and a Vivo mobile. It is urged that the larger recovery of other medicines, injections, tablets, capsules and a sum of Rs. 87,630/-, detailed in the recovery memo, has nothing to do with the applicant, as these were recovered from the car, wherein the applicant was just a passenger, with no knowledge about the presence of whatever was there. It is submitted that in any case, the entire recovery is fake and planted, which is evident from the fact that no public witness has been associated. It is also submitted that the recovery shown from the applicant's person of Parvon-SPAS tablets does not figure in the schedule appended to the N.D.P.S. Act to show that it is, in fact, a narcotic drug or psychotropic substance. It is next submitted that co-accused Sukhveer, from whose possession ten injections of Penzin were shown to be recovered, has been admitted to bail by Hon'ble Subhash Chand, J. vide order dated 07.04.2021 passed in Criminal Misc. Bail Application No. 16191 of 2021, entitling the applicant to the benefit of parity. The applicant is in jail since 30.01.2021.
The learned A.G.A. has opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that there is no public witness of the recovery, despite the same being made from a busy public place, the fact that prima facie Parvon-SPAS tables recovered from applicant do not appear to be shown as narcotic drug or psychotropic substance in the schedule appended to the N.D.P.S. Act, the fact that the applicant prima facie appears to a passenger, who boarded the vehicle to travel a short distance and is not the driver of the vehicle, wherefrom the other drugs are said to be recovered, the fact that it is not shown by the prosecution that of the other drugs, allegedly recovered, how many fall within the mischief of the N.D.P.S. Act, the fact that there was no individual intimation of the right of the accused to be searched before a Gazetted Officer, prima facie leading to violation of Section 50 of the NDPS Act, the fact that co-accused Sukhveer, who is identically circumstanced, has been admitted to bail by this Court, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant - Lalit be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :
(i) The applicant shall not tamper with the prosecution evidence.
(ii) The applicant shall not threaten or harass the prosecution witnesses.
(iii) The applicant shall appear on the date fixed by the Trial Court.
(iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
(v) 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 such person from disclosing facts to the Court or to any Police Officer or tamper with the evidence.
(vi) The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, which shall be self attested by the counsel of the party concerned.
(vii) The Court/Authority/Official concerned 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.
In case of default of any of the condition(s) enumerated above, the prosecution would be free to move an application for cancellation of bail before this Court.
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 of opinion on the merits of the case. It is further clarified that 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 :- 11.5.2021 I. Batabyal