Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35780 of 2021 Applicant :- Sarita Devi Opposite Party :- State of U.P.
Counsel for Applicant :- Ashish Kumar,Rakesh Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Rakesh Kumar Pandey, learned counsel for the applicant, learned A.G.A. for the State and perused the record of the case.
The present bail application has been filed on behalf of applicant Sarita Devi under Section 439 of The Code of Criminal Procedure, with a prayer to release her on bail in Case Crime No. 0204 of 2021, under Sections 8/22 of Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Kotwali, District Jaunpur, during pendency of the trial.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that no incriminating article/contraband of 145 gm. Dizapam powder has been recovered from the personal possession or pointing out of the applicant. The alleged recovery of 145 gm. Dizapam powder, from the personal possession of the applicant by lady constable Shalini, which is below commercial quantity, is made without complying the mandatory provisions of Sections 42 & 50 of the NDPS Act. It is further submitted that there is no adequate or substantial compliance with Section 42 of NDPS Act and it is a question of fact to be decided in each case as held by the Constitution Bench of the Apex Court in Karnail Singh Vs. State of Haryana, (2009) 8 Supreme Court Cases 539. It is further submitted that in order to make search and recovery of the contraband articles from the body of the applicant, search and recovery has to be inconformity with the requirements of Section 50 N.D.P.S. Act. A search and recovery made from the applicant of the alleged contraband does not satisfy the mandatory requirements of Section 50 as held by Constitution Bench of the Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609.
It is further submitted that the applicant has no criminal history. Charge sheet has been submitted on 6.8.2021 and the applicant is no more required for the purpose of investigation. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 28.07.2021, undertakes that she will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail. In case the applicant is released on bail, she will again indulge in similar activities and will misuse the liberty of bail.
Upon considering the totality of facts and circumstances of the case and without expressing any opinion on merits of the case, I find it to be a fit case for bail. Hence, the present bail application is allowed.
Let applicant, Sarita Devi be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) 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 her from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
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.
Order Date :- 30.9.2021 T. Sinha