This is second bail application of the applicant. First Bail Application No.6340 of 2016 was dismissed in default vide order dated 30.03.2018, passed by a co-ordinate bench of this Court.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant in Crime No. 83 of 2016, under Section 8/20 N.D.P.S. Act, Police Station Pachpedwa, District Balrampur.
As per version of F.I.R. an information was received to the 50th Battalion S.S.B., Tulsipur that on 23.01.2016 two Charas Smugglers are coming from Nepal having huge quantity of Charas who will reach between 7-9 hours in the enening through Bhathar Chauraha near Pillar No. 572. On this information a raiding team was constituted and at 8.00 P.M. it was seen that a motorcycle was coming. Then the accused persons were apprehended and present applicant was informed that if he desires his search may be made before any gazetted officer. Thereafter, on his consent his search was made. On his search, 8.00 Kg. Charas and some Indian Currency was recovered from a bag held by the applicant.
It is submitted by learned counsel for the applicant that recovery has been shown in gross violation of Section 50 of NDPS Act and since the legal right of applicant as enumerated under Section 50 of NDPS Act was not followed, the entire proceedings are against the law and on the basis of present recovery memo there is no chance of conviction. It is also stated that on the date of occurrence, i.e. on 23.01.2016 applicant was present in Tehsil Tulsipur in connection with some sale deed which was executed by one Ram Sagar in his favour. So, it is very thin chance that after getting the sale-deed executed, he will go to commit such offence. In support of the contention copy of the sale-deed has been brought on record, which shows that the sale-deed was executed on 23.01.2016 in the office of Sub Registrar, Tehsil Tulsipur. Since it appears that while making recovery provisions of Section 50 of NDPS Act were not followed as held in the case of S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal (2018) 9 SCC 708 and Arif Khan Vs. State of Uttarakhand 2018 SCC Online SC 459 and the applicant was not made aware individually about their right to be searched before a Magistrate or before a Gazetted Officer as provided under Section 50 of NDPS Act.
There are reasonable grounds to believe that the applicant is not guilty of such offence and since there is no criminal history against the applicant, he will not commit any offence while on bail.
Learned A.G.A has, however, opposed the prayer for grant of bail but he has not disputed the above contention made by the learned counsel for the accused-applicant.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Maksood Ahmad) be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(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.
Order Date :- 26.7.2019 ML/-