Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
On 18.2.2020 this court has passed the following order:-
"List after two weeks, on which date the chemical examination report has to be placed on record.
In case of failure to place on record the chemical examination report of the narcotics substance allegedly recovered from the accused-applicant, the accused-applicant may be enlarged on bail on the next date of listing of the bail application."
In spite of order passed by this court, chemical examination report has not been produced. After 18.2.2020 the matter was listed on 5.3.2020, 6.3.2020 and 18.3.2020. On 6.3.2020 and 18.3.2020 again time was granted.
Today when the matter is listed the chemical examination report has not been filed. Shri Jayant Singh Tomar, learned A.G.A. submits that thrice communication has been sent to Superintendent of Police, Bahraich for providing Forensic Science Laboratory report.
Learned counsel for the applicant submits that the applicant has been falsely implicated in this case. Alleged recovery of 2kg and 200gm charas from the personal search of applicant is false, to which there is no public witness.
Learned counsel for the applicant submits that the compliance of Section 50 of NDPS Act has not been done. The applicant was not produced before the gazetted officer or the magistrate.
After attending the court of Additional Session Judge, Court no.5 Bahraich on 17.12.2018 which was the date fixed in other case while returning back the SOG personnel, who was standing in civil dress at the main gate, took the applicant forcibly from there and kept in illegal custody for four days and falsely implicated the applicant.
Learned counsel next contended that other mandatory provisions under Sections 42, 55 and 57 of N.D.P.S. Act have also not been complied with.
Learned counsel for the applicant has explained the criminal history in the rejoinder affidavit. The applicant is in jail since 22.12.2018.
It is lastly submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant. He submits that the recovery of alleged contraband is of commercial quantity and the applicant is not liable to be enlarged on bail.
Having regard to all the facts and circumstances and keeping in view the nature of offence, evidence in support of accusation, complicity of the accused, arguments, arguments advanced by learned counsel for the parties, as also considering the twin condition as mentioned in Section 37(1)(b) of NDPS Act having been satisfied, in as much as there is no likelihood of the accused applicant of committing similar offence in future; there is no previous criminal history, and without expressing any opinion on the merits of the case, I find it to be a fit case for enlarging the applicant on bail.
Let the applicant, Mantu @ Ram Surat involved in Case Crime No.703 of 2018 under Sections 8/20 NDPS Act, Police Station Kotwali Nanpara, District Bahraich, be released on bail on his furnishing a personal bond and two heavy 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 will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) 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.
(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 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.
(v) 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.
(vi) 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.
Order Date :- 19.2.2021 Madhu