Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41713 of 2020 Applicant :- Rahmat Khan Opposite Party :- State of U.P.
Counsel for Applicant :- Rakesh Pati Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Counter affidavit filed by learned A.G.A. is taken on record.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 294 of 2020, under Section 8B/21 of N.D.P.S. Act, police station Bhojipura, district Bareilly, during the pendency of trial.
It is submitted by learned counsel for the applicant that the applicant is absolutely innocent and has falsely been implicated in the present case with some ulterior motive. It is further submitted by learned counsel for the applicant that as per prosecution case, three persons have been apprehended by the police in the present case. It is next submitted by learned counsel for the applicant that 30 gms of Smack from the possession of the applicant, 40 gms of Smack from the possession of co-accused Shahid Hussain and 30 gms of Smack from the possession of co-accused Mahboob Khan have been recovered. There is no independent witness of the alleged recovery of contraband. It is pointed out by the learned counsel for the applicant that after recovery of aforesaid contraband, first information report has been separately lodged by the police against the applicant as well as co-accused persons of this case. He next submitted that the alleged recovery of contraband is below commercial quantity, therefore provisions of section 37 of N.D.P.S. Act are not attracted in the instant case. It it further alleged that similarly placed co-accused Mahboob Khan and Shahid Hussain have already been granted bail by co-ordinate Bench of this Court vide orders dated 01.12.2020 and 01.12.2020 in Criminal Misc. Bail Application Nos. 42000 of 2020 and 42255 of 2020 respectively, therefore the applicant is also entitled to be released on bail on the ground of parity. It is also submitted that the applicant has no criminal antecedent to his credit and is facing detention since 08.09.2020. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. There is no prospect of trial of the present case being concluded in near future due to heavy dockets. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned Additional Government Advocate has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage therefore, the applicant does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Rahmat Khan, be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 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.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
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.
Order Date :- 6.1.2021 Sazia