Heard the learned counsel for the accused appellant, the learned counsel for Union of India on the prayer for bail of the accused appellant and perused the judgment and order of the trial court as well as trial court record.
This criminal appeal has been filed by the accused-appellant against the judgment and order dated 24.09.2007, passed by the learned Additional Sessions Judge/FTC-29, Barabanki in Criminal Trial (CT) No. 50 of 2006; Union of India Vs. Ram Pal, under Sections 8/19, 8/26 N.D.P.S. Act (hereinafter referred to as 'Act') challaned by the department of Narcotics, whereby the learned Additional Sessions Judge has held the accused-appellant guilty under Sections 8/19, 8/26 of the Act, consequently, he has convicted and sentenced the accused appellant for 10 years rigorous imprisonment and to pay fine of Rs. 1 lac under section 8/19 of the Act and one year rigorous imprisonment and to pay fine of Rs. 10,000/- under Section 8/26 of the Act and in case of default of payment of fine, he has been ordered to undergo rigorous imprisonments for two years and two months under sections 8/19 and 8/26 of the Act respectively. The accused appellant has applied for bail during the pendency of appeal.
The submission of learned counsel for the accused appellant is that the accused appellant was licensee of cultivating the opium. He on the basis of licence cultivated the opium and produced 12.900 Kgs. of opium. He deposited 12.220 Kgs. Opium to the department. The department found the opium deposited by the accused appellant adulterated. The Central Narcotics Bureau thereafter lodged prosecution against the accused appellant.
The learned counsel for the accused appellant contents that under Rule 29 of the Rules framed under the Act, the department was required to initiate a preliminary enquiry in the matter and if after enquiry the opium was found short and adulterated then the accused was required to be given an opportunity to prefer an appeal against the enquiry report of the Officer. In this case, no such enquiry was made. Therefore, the prosecution of the appellant is illegal and the conviction and sentence awarded by the trial court is liable to be set aside. Learned counsel for the accused appellant further submits that in a similarly situated situation, accused Ram Adhar was convicted by the trial court in Criminal Trial No. 154 of 2005. He had challenged the conviction order by filing Criminal appeal. During pendency of criminal appeal, he was ordered to be released on bail by another Bench of this Court. The accused appellant has already spent three years and six months in jail. There is no immediate possibility that the appeal is going to be heard in near future. Therefore, accused appellant deserves to be released on bail during the pendency of appeal.
The learned Special Public Prosecutor (Narcotics) vehemently opposed the prayer for bail and argued that the accused appellant has been held guilty under Sections 8/19, 8/26 of the Act. He could not prove his innocence. Therefore, he does not deserve to be released on bail.
Considered the submissions of the learned counsel for the accused appellant and the learned counsel for Union of India.
In the similarly situated situation, the accused Ram Adhar who had been convicted by the trial court, has already been granted bail by another Bench of this Court, therefore, without prejudice to the merit of the case, the accused-appellant may also be released on bail.
Let appellant Ram Pal be released on bail in aforesaid Criminal trial number during pendency of the appeal on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.
The realization of 75% amount of fine will remain stayed provided the appellant deposits 25% of the total amount of fine awarded by the trial court within 30 days from the date of his release, failing which this bail order shall stand cancelled.
10.05.2010 Sanjay/-