Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 24519 of 2019 Petitioner :- Sanjay Alias Sanju Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Virendra Kumar Srivastava,Rajesh Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Rajendra Kumar-IV,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. which has been registered as Case Crime No.48 of 2019, under Section 8/20 N.D.P.S. Act, Police Station Kotwali, District Agra.
Learned counsel for the petitioner submitted that the impugned first information report has been lodged by the Police containing absolutely false and concocted allegations against the petitioner with the ulterior intention of harassing him; that initially the main accused namely Sonu @ Chhotu, who happens to be the brother of the present petitioner was arrested by the police from his house, and thereafter, the police has falsely implicated the Sonu @ Chhotu, alongwith his two other brothers namely Raju and Sanjay @ Sanju (the present petitioner); that the present petitioner was not arrested on the spot; that further contention of the counsel for the petitioner is that the Sonu @ Chhotu has already been granted bail vide order dated 07.11.2019, passed by another Bench of this Court, in Criminal Misc. Bail Application No.30044 of 2019, the same has been perused by the Court. The Sonu @ Chhotu has been granted bail with the following observations:-
"Learned counsel for the applicant has submitted that applicant has been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 6 kg Charas and 4 Kg. Ganja and there is no public witness of the alleged recovery.Two other co-accused are stated to have fled away from the spot and not arrested. It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non-compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. The criminal history of the applicant has been explained in paragraphs 3 and 4 of the supplementary affidavit. It is also submitted that the applicant is in jail since 24.6.2019, and he undertakes that he will not misuse liberty, if granted."
That the further contention of the counsel for the petitioner is that the petitioner has no role to play the controversy in issue; apart from the bald allegations made in the impugned F.I.R., no evidence is forthcoming even prima facie indicating at the complicity of the petitioner in the commission of alleged offence and hence the impugned F.I.R. which is a bundle of lies and motivated by malice, is liable to be quashed.
Per contra, learned A.G.A. has submitted that from the perusal of the allegations made in the impugned F.I.R., it cannot be said that no cognizable offence is made out, hence the impugned F.I.R. is not liable to be quashed.
Having heard the submissions advanced by learned counsel for the parties and perused the impugned first information as well as the other material brought on record, we are not inclined to quash the impugned F.I.R.
In view of the aforesaid, no useful purpose would be served in keeping the present writ petition pending before this Court and, hence, the same is being disposed off with the direction that in case, petitioner appears and surrenders before the court below within two months from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of two months from today or till petitioner surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against petitioner. However, in case, petitioner does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid observations, the instant writ petition is finally disposed of.
Order Date :- 28.11.2019 I.A.Siddiqui