Court No. - 89
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42397 of 2021 Applicant :- Salman Opposite Party :- State of U.P.
Counsel for Applicant :- Sandeep Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
Supplementary Affidavit filed today is taken on record.
Heard Sri Sandeep Tripathi, learned counsel for the applicant, and Sri D.N. Tiwari, the learned AGA for the State.
This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of the applicant- Salman for enlarging him on bail in Case Crime No.93 of 2020, under Sections 8/20 N.D.P.S. Act, registered at Police Station- Chilkana, District- Saharanpur.
The bail application so preferred by the applicant has been rejected by the court below on 5.11.2020.
Learned counsel for the applicant has argued that a first information report has been lodged by one Shah Alam against the applicant before P.S. Chilkana, District Saharanpur on 26.2.2020 being FIR No. 0093 of 2020, under Sections 8/20 N.D.P.S. Act, registered at Police Station- Chilkana, District- Saharanpur alleging that the applicant was found in possession of 200 gms of charas. Learned counsel for the applicant has argued that the entire story so sought to be alleged against the applicant is a concocted one, as neither there was any independent witness, nor the recovery made from him. The applicant has been made a escape goat. Learned counsel for the applicant has then invited the attention of this Court towards Sl. No. 23 under Sub-clause (vii) (a) and (xiii) (a) of Section 2 of NDPS Act, so as to contend that the alleged recovery of charas is below the commercial quantity. Learned counsel for the applicant has further referred to supplementary affidavit, wherein learned counsel for the applicant had drawn the attention towards the confession order dated 28.8.2018 in Case no. 818 of 2018 arising out of Case Crime no. 575 of 2017, under Section 13G Gambling Act, P.S. Behat, District Saharanpur as well as the bail order dated 5.2.2019 in Case Crime no. 36 of 2018, under Section 379 IPC, P.S. Chilkana, District Saharanpur as well as referred to the Bail so granted to him in paragraph-3 of the supplementary affidavit in Case Crime no. 172/2018 under Section 174A IPC, P.S. Chilkana, District Saharanpur. Learned counsel for the applicant has next submitted that he is in jail since 26.2.2020. If he is released on bail, he will not misuse the liberty of bail.
Countering the above submission learned AGA for the State has though vehemently opposed the bail, but could not dispute the factum regarding the issue with regard to enlarging on bail in the above noted cases and further with regard to the quantity of charas so sought to be recovered from the applicant, which is below commercial quantity.
Looking into the nature of the offence, there are no chances of accused fleeing from justice and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Salman involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(iv) 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 to any police officer or tamper with the evidence.
(v) Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Any observations made in granting bail to the applicant shall not in any way affect the learned Trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 22.12.2021 N.S.Rathour