Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
Learned Counsel for the applicant has submitted that the applicant is innocent and he has been falsely implicated in this case. According to the first information report, on the basis of information of the Mukhbir on 25.11.2020 at 6:00 am, police team arrested the applicant along with Ashutosh Bajpai and from the possession of the applicant one mobile, one ATM card, Rs.9500/- cash and 53 gm smack have been recovered. It is submitted that the recovered contraband article is less than commercial quantity. It is also submitted that the alleged recovery has no independent witness. At the time of recovery, the provisions of Section 50 which is mandatory in nature was not complied with. There is criminal history of three cases, which has been explained in paragraph 13 of the affidavit along with bail application and three cases have been situated against the applicant on the instant arresting of the instant case. He submitted that criminal cases which are lodged against the applicant is not in the nature of NDPS offences. After investigation, the charge sheet has already been filed on 17.02.2021. The applicant is in jail since 25.11.2020. There is no allegation with regard to non-cooperation with the investigating agency. In case, the applicant is released on bail, he will appear before the trial court as and when requires and shall also abide by the conditions of bail imposed by this Court.
Per contra, learned AGA has opposed the prayer for bail and submitted that the recovery of 53 gm Smack was made from the possession of the applicant more than lesser quantity after following the provisions as prescribed under the NDPS Act. There is no violation of Section 50 NDPS Act as submitted by the learned counsel for the applicant and there are criminal history of six cases. Learned AGA submitted that in view of the above facts and circumstances of the case, applicant is not entitled for the bail.
Without entering into the merits of the case and keeping in view the facts and circumstances of the case, arguments advanced by learned Counsel for the parties, the period of incarceration and also there is no reason of apprehension that he would not co-operate with the trial, his presence can not be ensured, he will not abscond, he will not tamper with the prosecution witnesses and the evidence in absence of any concrete material, there are criminal history of six cases which has been explained in paragraph 17 of the bail application and all the criminal cases are not of the offences under the NDPS Act, the charge sheet has already been filed and the alleged contraband is below the commercial quantity, I am inclined that it is a fit case for grant of bail to the applicant.
Accordingly, the bail application is allowed.
Let the applicantOm Narayan Kashyap @ Golu Kashyap be released on bail in Case Crime No.739 of 2020, under Sections 8/21 of NDPS Act, Police Station- Kotwali Shahar, District- Hardoi on his furnishing personal bonds and two reliable sureties each of the like amount to the satisfaction of the court concerned with the following conditions:
(1) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if 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;
(2) 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;
(3). In case, the applicant misuses the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicant fail to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(4) 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 their bail and proceed against them in accordance with law.
Order Date :- 17.8.2021/Ashutosh Pandey